K-Mart v. Young
| Decision Date | 25 May 1988 |
| Docket Number | No. 87-1150,K-MART and KM,87-1150 |
| Citation | 526 So.2d 965,13 Fla. L. Weekly 1248 |
| Parties | 13 Fla. L. Weekly 1248 Services, Appellants, v. Simone YOUNG, Appellee. |
| Court | Florida District Court of Appeals |
Lamar D. Oxford, of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.
Bill McCabe, of Shepherd, McCabe & Cooley, and J. David Parrish, of Hurt & Parrish, P.A., Orlando, for appellee.
The employer, K-Mart, appeals from the order of the deputy commissioner awarding claimant "temporary total disability or temporary partial disability" and denying K-Mart's claim to a "setoff." We affirm in part and reverse in part.
Claimant injured her right foot during the course and scope of her employment on November 8, 1984. She received treatment by two authorized physicians but claimed such treatment was unsatisfactory. Therefore, on her own initiative, claimant sought unauthorized treatment from Dr. Pascarella, a podiatrist.
Claimant also returned to work during this period of time but was having difficulty walking and suffered "desperate pain" in her foot. On June 5, 1986, she filed a claim for payment of medical care rendered by Dr. Pascarella. An order was entered on December 8, 1986, noting the testimony of the two authorized orthopedic surgeons that claimant had reached maximum medical improvement sometime in 1985. In the order, the deputy rejected Dr. Pascarella's and claimant's testimony and accepted the testimony of the authorized physicians that claimant was malingering and that there was no clinical substantiation for her complaints of foot pain. The deputy also noted the physicians' testimony that claimant could return to full-time work in 1985 with no limitation.
However, pursuant to a motion to set aside the order filed by claimant, the deputy entered an order on January 20, 1987, agreeing that the December 8 order was overly broad and overreaching, containing items not decided at the hearing, and instead simply stated that "[a]fter hearing testimony of the claimant as well as viewing films and testimony of the investigator I find that the claim for treatment under Dr. Pascarella and payment of his past incurred bills is denied."
Thereafter, on February 18, claimant elected to undergo surgery on her foot which surgery was unauthorized and was performed by Dr. Pascarella. On subsequent deposition, Dr. Pascarella testified that within a reasonable degree of podiatric probability the need for surgery was the result of the industrial accident. He further stated the surgery revealed a peripheral nerve that appeared abnormal and entrapped, as well as an abnormality of a sheath in the common tendons that flex and extend the toes. He testified that the nerve was entrapped as a result of claimant's accident and that the abnormality was repaired as much as possible, surgery having been performed on an outpatient basis.
Dr. Pascarella also testified that following surgery, claimant was unable to return to any type of work until on or about May 22, 1987. He maintained that claimant was absolutely temporarily and totally disabled until that date as a result of her accident.
On May 22, claimant was released to return to work with certain limitations. Accordingly, claimant returned to work in early June informing the employer of Dr. Pascarella's restrictions. She testified that she was put in a job outside those restrictions and that she worked for two days before returning to Dr. Pascarella and being advised by him not to return to work. Claimant was still off work at the time of the hearing.
Earlier, on March 23, 1987, claimant had filed a claim for compensation benefits seeking temporary total disability since February 17, 1987, as well as costs, interest, penalties, and attorney's fees. At the hearing subsequently held on July 2, Dr. Pascarella's deposition was introduced in which he testified that claimant had advised him she could not do her work. Dr. Pascarella opined that claimant was unable to meet her job requirements because of the combination of lifting, walking, and standing. He maintained claimant was not yet at maximum medical improvement from the surgery, although he did suggest that she was capable of performing part-time work within his restrictions,...
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