Farm Stores v. Dyrda, QQ-286
| Decision Date | 09 June 1980 |
| Docket Number | No. QQ-286,QQ-286 |
| Parties | FARM STORES and Employers Insurance of Wausau, Appellants, v. Darlene DYRDA, Appellee. |
| Court | Florida District Court of Appeals |
Steven Kronenberg of Pyszka, Kessler & Adams, Miami, for appellants.
Arthur Newman, P.A., Miami, for appellee.
The order on appeal is affirmed except as to the award of Dr. Ticktin's bill for services which were unauthorized and rendered at a time when the employer/carrier was voluntarily providing medical attention. The award of this bill is accordingly reversed. Corporate Group Services, Inc. v. Lymberis, 146 So.2d 745 (Fla.1962); Sun Bank of Florida v. Hicks, IRC Order 2-3867 (July 25, 1979).
There is case support for the proposition that due process problems arise when the deputy commissioner undertakes to rule on issues not framed by the parties. Florida Production Engineering v. Fisher, IRC Order 2-3437, cert. denied, 368 So.2d 1366 (Fla.1979); Alterman Transport Lines, Inc. v. Hawkins, IRC Order 2-3180 (1977), cert. denied, 354 So.2d 978 (Fla.1977); U.S. Steel Corp. v. Green, 353 So.2d 86 (Fla.1977); Haygood Floors, Inc. v. Nichols, 9 FCR 344 (1975). The Florida Industrial Relations Commission, in Sea Ray Boats, Inc. v. Snedeker, 9 FCR 318 (1975), however, rejected the due process argument and affirmed the deputy commissioner's award of unclaimed temporary partial disability benefits. In rejecting the appellants' argument that a claim for temporary total disability benefits would not allow for an award of temporary partial the Commission pointed out:
(I)f appellants agreed that appellee had not reached maximum medical improvement, and was less than temporarily and totally disabled, we find it difficult to apprehend such an element of surprise as to a finding of temporary partial disability that would justify a reversal for lack of due process.
The instant case is factually similar in that neither surprise nor prejudice is demonstrated. As in Snedeker, it is difficult to imagine that the carrier would not be on notice that the denial of claimed temporary total disability benefits might well result in an award of temporary partial where there is a gap between the cessation of temporary total disability and the date of maximum medical improvement. We find no demonstrated prejudice or surprise, nor for that matter has any been alleged. The carrier relies upon the proposition that as a matter of law temporary partial disability benefits cannot be awarded because they were not claimed. This is not altogether true for although the claimant did not put such benefits at issue in the pretrial...
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