Kenney v. Juno Fire Control Dist.
| Citation | 12 Fla. L. Weekly 1005,506 So.2d 449 |
| Decision Date | 10 April 1987 |
| Docket Number | No. BL-488,BL-488 |
| Parties | 12 Fla. L. Weekly 1005 J. Robert KENNEY, Appellant, v. JUNO FIRE CONTROL DISTRICT, and American Mutual Liability Insurance Company, Appellees. |
| Court | Court of Appeal of Florida (US) |
Frank G. Cibula, Jr., of Cibula, Gaunt & Pratt, West Palm Beach, for appellant.
L.C. Shepard of Adams, Coogler, Watson & Merkel, West Palm Beach and Debra Levy Neimark of Neimark & Neimark, Coral Springs, for appellees.
The claimant files this appeal of the final order issued by the deputy commissioner (dc) denying temporary total disability (TTD) benefits. Based on the facts of this case, we find that the dc's refusal to accept the examining physician's opinion that the claimant was TTD for the period during which he was not under a doctor's care was in error. We reverse and remand.
The claimant suffered two compensable injuries: an accident on November 8, 1979, causing injuries to his neck and left shoulder, and a subsequent accident on February 12, 1980, resulting in an injury to his lower back. After the second injury, the claimant was hospitalized several times for testing, then receiving a myelogram, a CT scan, and a diskogram. In February 1983, the claimant visited a neurosurgeon, Dr. Cooney, who diagnosed him as having a herniated disc, and advised that surgery be performed.
At the claimant's request, the dc entered an order requiring the employer carrier (e/c) to pay for a consultation by Dr. Rosomoff of the University of Miami Comprehensive Pain Center. It was Dr. Rosomoff's opinion that the claimant did not have a herniated disc and could be rehabilitated. The claimant remained as an inpatient in the back rehabilitation program at the Center for two weeks, and on October 15, 1983, Dr. Rosomoff released the claimant as having reached maximum medical improvement with a zero percent disability rating under the AMA guidelines for disability. The claimant was released to work with no restrictions.
In January 1984, the claimant again returned to Dr. Cooney, complaining of neck pain and pain in his shoulder and back. Another CT scan was taken, revealing a degenerative disk. Surgery was performed on April 4, 1985, after which the e/c voluntarily resumed the payment of TTD benefits.
The claimant subsequently filed a claim for TTD benefits from October 16, 1983 through April 3, 1984. While awarding TTD benefits from January 4, 1984 through April 3, 1984, the dc denied the claim for benefits preceding January 4, 1984, stating that since the claimant did not return to Dr. Cooney until January 4, 1984, there was no competent medical evidence as to the claimant's disability during the period prior to this visit, or that time when the claimant was not under the doctor's care. We regard the dc's apparent conclusion that...
To continue reading
Request your trial
-
Morton Plant Hosp., Inc. v. Craft, 88-2176
...when the claimant's subjective complaints of incapacity and pain have been confirmed by surgery. Kenney v. Juno Fire Control District, 506 So.2d 449 (Fla. 1st DCA 1987); Barter v. Zayre Corp., 449 So.2d 944 (Fla. 1st DCA A dc may not reject unrefuted evidence from a medical expert's reports......
-
Pic N' Save v. Edens, 94-223
...was not erroneous even though no doctor testified directly that claimant could not work during that period); Kenney v. Juno Fire Control Dist., 506 So.2d 449 (Fla. 1st DCA 1987) (it was error for the JCC to refuse to accept examining physician's testimony that claimant was TTD for period du......
-
Massey Servs., Inc. v. Knox
...where independent medical examiner testified claimant should have remained off-work from date of accident); Kenney v. Juno Fire Control Dist., 506 So.2d 449 (Fla. 1st DCA 1987) (reversing denial of temporary indemnity benefits where medical evidence retroactively confirmed claimant's testim......