King v. Scotty's Distribution Center

Decision Date18 September 1997
Docket NumberNo. 96-3234,96-3234
Citation699 So.2d 308
Parties22 Fla. L. Weekly D2211 D.R. KING, Appellant, v. SCOTTY'S DISTRIBUTION CENTER, Appellee.
CourtFlorida District Court of Appeals

Matthew D. Valdes, Lakeland, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellant.

Robert A. LeVine of Newman, LeVine, Metzler & Shankman, P.A., Tampa, for appellee.

PER CURIAM.

At oral argument, counsel for appellee conceded that temporary total disability and medical benefits should be paid through June 15, 1995, the date on which the judge of compensation claims found Mr. King reached maximum medical improvement. Although the extent of permanent impairment was not itself at issue on this appeal, counsel for appellee also conceded that a ten percent permanent impairment (as arguably found by the judge of compensation claims) existed. On the basis of the confession of error, we reverse. In doing so, we expressly vacate the finding that the claimant had no work restrictions once maximum medical improvement was attained.

Reversed.

DAVIS and BENTON, JJ., concur.

ERVIN, J., concurs and dissents with opinion.

ERVIN, Judge, concurring and dissenting.

I concur with the majority's opinion to the extent that it reverses the award of temporary total disability (TTD) benefits and medical benefits only through March 1995 and its extension of those benefits through June 15, 1995. I also concur in the majority's reversal of the finding that claimant had no work-related restrictions once he achieved maximum medical improvement (MMI). The majority's opinion does not, however, address claimant's additional contention that he was entitled to both TTD and medical benefits until December 6, 1995. Obviously, by its approval of an MMI date of June 15, 1995, the effect of the majority's decision is to reject claimant's argument regarding a later time therefor. Because I cannot agree that competent, substantial evidence supports a determination that claimant was at overall MMI as of June 15, 1995, I respectfully dissent to this portion of the majority's opinion so holding, and I would reverse and remand for additional findings as to this issue.

Claimant suffered his industrial accident on December 15, 1994, which resulted in injuries to both his lower back and neck. Immediately after the accident, claimant began treating with Dr. Juan Ibanez, a general practitioner. Claimant complained mostly of lower back problems, and Dr. Ibanez diagnosed a soft tissue injury in the lower back. Additionally, testing revealed degenerative disc disease, impingement and disc protrusion at L1-2, degenerative disc disease from C4 to C7, bulging at C5-6, spurring at C4-5 and C5-6, a herniated disc at C6-7, and damage to medial nerve on the right arm. Because the cervical disc herniation required surgery, Dr. Ibanez referred claimant to Dr. Roberto Bellegarrigue, a neurosurgeon, for that condition, and Dr. Bellegarrigue performed an anterior cervical diskectomy and fusion at C5-6 and C6-7 in March 1995. Dr. Bellegarrigue opined that claimant was at MMI on June 15, 1995. He noted a problem with claimant's right elbow, which he did not consider to be cervical in nature, and he released claimant back to Dr. Ibanez's care "for what other medical problem he might have." Dr. Ibanez continued to treat claimant after his discharge by Dr. Bellegarrigue, once on July 13, 1995, and again on October 3, 1995. During the July 13, 1995, visit, Dr. Ibanez reported that claimant's neck was still stiff and that his back "catches" when twisted. Dr. Ibanez, moreover, testified that he had never returned claimant to work since he took him off work the date of the accident.

A claimant must, of...

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