Florida Power Corp. v. Hamilton

• Decision Date: 13 July 1995
• Docket Number: No. 94-826,94-826
• Citation: 657 So.2d 1260
• Parties: 20 Fla. L. Weekly D1630 FLORIDA POWER CORPORATION, Appellant, v. Fred HAMILTON, Appellee.
• Court: Florida District Court of Appeals

Page 1260

657 So.2d 1260

20 Fla. L. Weekly D1630

FLORIDA POWER CORPORATION, Appellant, v. Fred HAMILTON, Appellee.

No. 94-826.

District Court of Appeal of Florida,

First District.

July 13, 1995.

Bernard J. Zimmerman and Kevin L. Lienard of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellant.

Leon M. Boyajan, II, Inverness, for appellee.

JOANOS, Judge.

Florida Power Corporation (employer), a self-insured employer, appeals a workers' compensation order awarding Fred Hamilton, the claimant/employee (claimant) temporary total disability benefits, penalties, interest, and costs. The employer contests the compensation order on the following grounds: (1) the judge's finding that the prior reversed order is the law of the case; (2) the judge's finding as to the date of maximum medical improvement; (3) the judge's finding that claimant was temporarily, totally disabled; (4) the judge's failure to address Dr. Newman's findings; and (5) the award of penalties. Claimant cross-appeals the failure of the judge of compensation claims to award temporary total disability benefits for the period of time which preceded the employer's notice to claimant of his obligation to perform a job search. We affirm in part and reverse in part.

The subject accident occurred June 1, 1987, when claimant injured his back while working in construction. On January 7, 1988, he underwent surgery for excision of a herniated disc between L-5 and L-6. Dr. Faris, claimant's treating orthopedic surgeon, opined that claimant reached maximum medical improvement on March 16, 1988, with a fifteen percent permanent impairment of the body as a whole. Although the surgery relieved the claimant's sciatic pain, he continued to complain of back pain. These complaints were substantiated by objective findings of muscle spasm and limited range of motion in claimant's back. Diagnostic tests revealed continued bulging in the area of the surgery, but Dr. Faris concluded that claimant would not benefit from further surgery. In December 1989, Dr. Faris indicated that claimant was not capable of gainful employment.

In 1991, Dr. Faris imposed the same restrictions on claimant's activities as he had in 1988, i.e., no lifting in excess of twenty-five pounds and no repetitive bending and twisting. In addition, claimant was directed to change position frequently and to lie down every two hours. Dr. Faris again opined that claimant's condition had not improved since the surgery, and he was not capable of gainful employment.

In February 1988, the employer referred claimant to Mr. Freeman, a vocational rehabilitation specialist. Mr. Freeman testified that there were very few jobs within claimant's physical and skill limitations, and he did not think any employer would permit claimant to lie down every two hours. Mr. Freeman expressed reservations about claimant's ability to work full-time, even at a sedentary job.

Gerald Wili, a vocational evaluator, testified at the May 1991 hearing before Judge of Compensation Claims Douglas. Mr. Wili conducted an evaluation in claimant's home on May 17, 1988. He stated that claimant was consistent in his efforts and did well on the testing, but he had to take frequent breaks to lie down. The intelligence portion of the evaluation was conducted while claimant was lying in bed. According to Mr. Wili, there are no jobs available that claimant can do if he has to lie down every two hours.

During his deposition taken in February 1991, claimant stated he had been submitting job search forms to the employer and had checked the newspaper for job vacancies, but he had made no telephone calls about any jobs. Claimant said Dr. Faris instructed him not to work. However, claimant also acknowledged that he was aware that, at some point, Dr. Faris released him to light duty work. Claimant further stated that Dr. Newman told him he could perform light duty work, with lifting restrictions of twenty pounds, and no sitting, standing, or bending for long periods.

On August 6, 1991, claimant was evaluated by Dr. Cauthen, a neurological surgeon, at the request of the judge of compensation claims. Dr. Cauthen diagnosed claimant's condition as:

Degenerative disc disease; status post lumbar laminotomy, L5-L6, 1/7/88; probable unstable spine, L5-L6; chronic recurring lumbar pain related to 1, 2 and 3.

The neurosurgeon recommended further evaluation with Dr. Sutterlin, to include lumbar discography, to determine the current status of the degenerative disc partially removed at L5-L6.

Dr. Sutterlin, orthopedic spinal surgeon, examined claimant on May 21, 1992. He diagnosed claimant as having degenerative disc disease of the lumbar spine, with post-laminectomy syndrome. Dr. Sutterlin concluded that claimant might be a candidate for surgical fusion, with a fifty-fifty chance of success. He opined that claimant could attempt to work full-time with the same restrictions as had been imposed previously by Dr. Faris. Dr. Sutterlin concluded that claimant had reached maximum medical improvement, but could not establish a date other than the date of his evaluation, which was Dr. Sutterlin's first contact with claimant.

In letters dated April 13, 1988, May 8, 1991, and January 3, 1992, the employer advised claimant of his possible entitlement to wage loss benefits and of his obligation to perform a job search. The pretrial stipulation indicates that claimant received temporary total disability and wage loss benefits from the date of accident until October 4, 1988.

On February 19, 1992, Judge Douglas issued an order awarding temporary total disability benefits from November 1, 1988, through the date of the order and continuing for so long as claimant remained disabled, and directing the employer to provide the testing procedures recommended by Dr. Cauthen. Judge Douglas declined to accept the parties' stipulation as to the date of maximum medical improvement, finding that claimant remained temporarily totally disabled at that time. The employer appealed the 1992 order. On April 8, 1993, this court reversed, because the judge awarded a class of benefits that claimant did not specifically request. The court also held that "[t]he judge was entitled to reject the stipulation as to maximum medical improvement upon the receipt of contrary evidence." Florida Power Corp. v. Hamilton, 617 So.2d 333, 334 (Fla. 1st DCA 1993) (Hamilton I ).

Upon remand of this cause, the parties entered into a pretrial stipulation which states that claim was made for temporary total disability benefits from November 1, 1988, to the present and continuing, penalties and interest, costs, and attorney's fees. The employer raised defenses of inadequate job search, voluntary limitation of income/employment, claimant is capable of light duty employment, and claimant was not temporarily totally or partially disabled during the claimed period. The record contains requests for wage loss benefits and notices of denial of wage loss benefits from January 4, 1988, through October 8, 1993.

On February 15, 1994, Judge of Compensation Claims Hudson issued the order giving rise to this appeal. The judge found that the claim for temporary total disability benefits was clearly placed in issue at the hearing of November 30, 1993, as was claimant's entitlement to benefits for the period of February 19, 1992, through September 29, 1993. The judge agreed with Judge Douglas' earlier findings that claimant was still in a phase of diagnostic testing for the period of November 1, 1988, through February 19, 1992, and was entitled to temporary total disability benefits for that period. Since the record did not contain a notice that temporary total disability was timely controverted, the judge found that penalties were due on this class of benefits.

The judge further found that due to claimant's decision to reject further surgery, the date of maximum medical improvement should be established as May 21, 1992, the date fixed by Dr. Sutterlin. ¹ The judge also found that during the period following May 21, 1992, claimant's physicians considered him capable of full-time light duty employment with restrictions. Therefore, in order to demonstrate entitlement to ongoing benefits, claimant was required to perform a job search. Since claimant failed to conduct an adequate job search, the judge denied and dismissed with prejudice the claim for wage loss benefits from May 22, 1992, through September 29, 1993.

Turning to the first issue, the general rule is that questions of law "which have been decided by the highest appellate court become the law of the case which, except in extraordinary circumstances, must be followed in subsequent proceedings, both in the lower and the appellate courts." Brunner Enterprises, Inc. v. Department of Revenue, 452 So.2d 550, 552 (Fla.1984). The employer's position is that, if applicable, the law of the case doctrine is subordinate to the rule that a remanded workers' compensation order usually places the case in the position it would have been in if the order had never been entered. See Turner v. Rinker Materials, 622 So.2d 80, 83 (Fla. 1st DCA 1993). Unless the appellate court expressly restricts the matters to be addressed on remand, a judge of compensation claims may exercise discretion "to allow additional testimony, or to reconsider the evidence previously received in light of the appellate decision." Id.

A review of the order giving rise to the first appeal of this cause, together with the opinion which reversed that order, demonstrates the propriety of the determination that the prior ruling on this point, which was subsequently affirmed on appeal, is the law of the case as to that question. The prior order indicates Judge Douglas based his rejection of the stipulation on Dr. Cauthen's opinion that claimant may have an unstable spine, and the doctor's recommendation for further testing to determine whether claimant should undergo a surgical fusion. The order also...