DiMuro v. Dave's Tile Service, Inc., ZZ-290
| Decision Date | 21 January 1982 |
| Docket Number | No. ZZ-290,ZZ-290 |
| Citation | 409 So.2d 107 |
| Parties | Clemente DiMURO, Appellant, v. DAVE'S TILE SERVICE, INC., Appellee. |
| Court | Florida District Court of Appeals |
Jay M. Levy of Silver, Levy & Hershoff, and R. Cory Schnepper of Ser, De Cardenas, Levine, Busch & Allen, Miami, for appellant.
Albert P. Massey, III of Pyszka & Kessler, Fort Lauderdale, for appellee.
Claimant seeks review of an order of the deputy commissioner denying an award of attorney's fees. We reverse.
On August 24, 1977, claimant suffered a compensable injury to her left leg. Dr. Richards, an orthopedic surgeon, was authorized to render medical attention. Surgery was performed and claimant continued under the post-operative care of Dr. Richards until November 14, 1978, at which time the claimant was given an appointment for December and was advised to return to work on November 20, 1978.
Instead of returning to Dr. Richards, claimant, without authorization, went to Dr. Gilbert. Dr. Gilbert informed claimant's attorney by letter dated February 1, 1979 that claimant suffered a 35% permanent partial disability of the leg. That letter was forwarded to the employer/carrier. On February 14, 1979, the carrier's claims representative wrote to claimant's attorney advising him, in part, as follows:
To my knowledge, the claimant has not been given a rating by Dr. Richards, and it is my understanding that until the claimant returns to Dr. Richards' office for the final evaluation, no rating, if any, can be given.
Please contact your client and suggest that he return to Dr. Richards' office so that a final evaluation can be made.
On February 26, 1979, the carrier controverted Dr. Gilbert's medical charges.
The matter lay dormant until May 29, 1979, at which date the carrier again advised the claimant's attorney to have claimant return to Dr. Richards for rating purposes. On June 1, 1979, claimant's attorney informed the carrier that Dr. Richards refused to schedule an appointment with claimant without authorization and requested that the carrier schedule same. Not until that time did the carrier take the initiative to arrange for an examination for claimant by Dr. Richards. As a result of that examination, Dr. Richards determined that claimant sustained a 20% permanent impairment of the left foot, which rating the carrier, upon notification, promptly accepted and paid.
After hearing, the deputy commissioner found, among other things, that claimant reached MMI on November 29, 1978, which date had been assigned by Dr. Gilbert, and suffered 25% permanent partial disability of the left leg. The parties stipulated as to the amount of attorney's fees to be awarded claimant's attorney for all benefits obtained as a result of the accident except for 20% of...
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