Feacher v. Total Employee Leasing/Guarantee Ins. Co.

• Decision Date: 23 May 2011
• Docket Number: No. 1D10–4130.,1D10–4130.
• Citation: 61 So.3d 1236
• Parties: Precious FEACHER, Appellant,v.TOTAL EMPLOYEE LEASING/GUARANTEE INSURANCE COMPANY, Appellees.
• Court: Florida District Court of Appeals

61 So.3d 1236

Precious FEACHER, Appellant,

v.TOTAL EMPLOYEE LEASING/GUARANTEE INSURANCE COMPANY, Appellees.

No. 1D10–4130.

District Court of Appeal of Florida, First District.

May 23, 2011.

Jeremiah J. Talbott, Pensacola, and Stephen R. Hogan of the Law Office of Stephen R. Hogan, P.A., Pensacola, for Appellant.Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Johannessen & Goodman, L.L.P., Sarasota, and Barbara J. Glas, Pensacola, for Appellees.PER CURIAM.

In this workers' compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying temporary total disability (TTD) benefits, denying temporary partial disability (TPD) benefits from the date of accident until her visit with an independent medical examiner (IME), and awarding TPD benefits from the IME visit through the date of the final hearing. For the reasons below, we reverse and remand.

The sole medical evidence of work restrictions is from Claimant's IME, who testified Claimant “should remain temporar[il]y totally disabled and off work,” based on the closed head injury [and] also based on her neck and back injuries,” “from the date of accident through the date, at least until the date [he] saw [Claimant],” and “continu[ing] until she actually receives medical care.” The JCC's justification for denying TPD benefits for the period preceding the IME visit was his finding that there was no medical evidence of work restrictions for that period.

This finding was apparently based, at least in part, on the JCC's rejection of Claimant's testimony that she was informed by the emergency room doctor she saw on the date of accident that she could not return to work. The JCC rejected this testimony in part because the emergency room records contained no work restrictions, and in part because the JCC found Claimant's ability to accurately relate her medical history was, at times, poor. Another factor that apparently played a role in the JCC's finding was the fact that the IME did not review the emergency room records and his agreement with the emergency room doctor that she should not have returned to work at the time. Because the JCC found that testimony was not credible and, apparently under the impression that Claimant's testimony was the only evidence of disability from the date of accident until her visit with the IME, the JCC also found that there was no evidence of disability at all for that time period. Although it was the JCC's prerogative to...