Inn Service Corp., Inc. v. Diaz-Aller, DIAZ-ALLE

• Citation: 536 So.2d 307,13 Fla. L. Weekly 2738
• Decision Date: 16 December 1988
• Docket Number: A,DIAZ-ALLE,No. 88-394,88-394
• Parties: 13 Fla. L. Weekly 2738 INN SERVICE CORP., INC. and United States Fidelity and Guaranty Company, Appellants, v. Zaidappellee.
• Court: Florida District Court of Appeals

Page 307

536 So.2d 307

13 Fla. L. Weekly 2738

INN SERVICE CORP., INC. and United States Fidelity and Guaranty Company, Appellants, v. Zaida DIAZ-ALLER, Appellee.

No. 88-394.

District Court of Appeal of Florida, First District.

Dec. 16, 1988.

Rehearing Denied Jan. 31, 1989.

Robert H. Gregory, Miami, for appellants.

Jeffrey S. Breslow, Miami, for appellee.

SHIVERS, Judge.

The claimant in this workers' compensation appeal suffered injuries to her left shoulder, arm, and hand while lifting a five gallon bucket of wet laundry during the course of her employment with Inn Service Corporation. She was treated by Dr. Potash who diagnosed her condition as a cervical strain in the left trapezius lateral to the neck area but not involving the cervical muscles. On September 10, 1986, Dr. Potash returned her to work with no impairment except that she was to remain at light work for a short period of time. The doctor stated that the claimant reached maximum medical improvement (MMI) on September 11, 1986. Claimant was terminated from her employment on October 2, 1986, and has not worked since.

At her attorney's behest the claimant sought the medical services of Dr. Lopez on January 9, 1987. The deputy commissioner (DC) accepted Dr. Lopez's diagnosis and opinions over those of Dr. Potash. Dr. Lopez diagnosed the claimant as suffering from post-traumatic painful cervical syndrome with left upper extremity radiculitis and possible left median carpal tunnel syndrome with an anxiety depression condition. In the doctor's opinion, which he based on reasonable medical probability, these conditions were causally related to the industrial accident of August 31, 1986. Dr. Lopez last saw claimant in May 1987 and opined at that time that she had not reached MMI and he restricted her activities to no strenuous activity with the left upper extremity. Dr. Lopez did not provide the E/C with any reports of injuries and treatments regarding claimant.

The DC also found that claimant's failure to conduct a job search was excusable because, among other reasons, the employer/carrier (E/C) failed to advise her of her obligations to return to or look for work.

The DC ordered the E/C to pay the claimant temporary partial disability (TPD) benefits from January 9, 1987 to February 27, 1987, to provide the claimant with the necessary medical care and surgery with Dr. Lopez, and to pay the outstanding bill for medical services provided by Dr. Lopez. The E/C challenge the DC's finding that MMI was not reached and challenge the DC's awards of TPD benefits and payment of Dr. Lopez's medical bill. We reverse the award of payment by the E/C of Dr. Lopez's medical bill and affirm the remaining points on appeal.

The E/C advance City of Fort Meade v. Hickman, 528 So.2d 1214 (Fla. 1st DCA 1988) in support of their contention that the DC erred by not finding that claimant reached MMI. In Hickman the DC determined that the claimant could not have reached MMI, despite what his doctor found, because the doctor's finding was from an orthopedic standpoint only and because it was not based on treatments for claimant's head injury. We reversed because the record showed that the claimant's medical check ups pertained to his head injury as well as the orthopedic conditions and therefore the uncontroverted medical evidence that MMI was reached established attainment of MMI.

The instant case involves one physician establishing MMI and a subsequent physician finding that the claimant had not yet reached MMI with the DC accepting the latter finding. Hickman on the other hand involves uncontroverted medical evidence establishing MMI with a lack of evidentiary support for the DC's limitation of MMI to an orthopedic standpoint only. Thus Hickman does not apply here.

The DC simply chose one physician's MMI opinion over that of another. It is well established that such is appropriately the task of the DC because as fact-finder he is in the best position to do so. E.g., Curry v. Miami Dolphins, Ltd., 522 So.2d 1010 (Fla. 1st DCA 1988).

As to the award of TPD benefits, the DC relied upon the testimony of Dr. Lopez in...