Lee County Parks and Recreation v. Fifer
| Decision Date | 29 October 2008 |
| Docket Number | No. 1D08-1057.,1D08-1057. |
| Citation | 996 So.2d 229 |
| Parties | LEE COUNTY PARKS AND RECREATION/LEE COUNTY BOARD OF COUNTY COMMISSIONERS and Gallagher Bassett Services, Inc., Appellants/Cross-Appellees, v. Beverly Dudney FIFER, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Brian O. Sutter of All Injuries Law Firm of Brian Sutter, Port Charlotte; and Richard W. Ervin, III of Fox & Loquasto, P.A., Tallahassee, for Appellee/Cross Appellant.
In this appeal and cross-appeal, the employer/carrier (E/C) challenge the Judge of Compensation Claims' (JCC) ruling that they could not unilaterally suspend the permanent total disability (PTD) benefits they had been voluntarily paying Claimant. The E/C argue that, because there was no order adjudicating Claimant's entitlement to PTD benefits, the E/C could terminate those benefits at any time. The E/C also challenge the JCC's award of PTD benefits from the date they were terminated and continuing, asserting the JCC failed to address whether Claimant proved entitlement to such benefits.
On cross-appeal, Claimant challenges the JCC's finding that she was not entitled to authorization of a neurologist, the JCC's ruling that certain medical testimony on this issue was inadmissible, and the JCC's denial of bad-faith attorney's fees, asserting the JCC erred in failing to conduct a separate fact-finding proceeding on the issue. For the reasons explained below, we reverse the JCC as to the two issues on appeal and as to the issue on cross-appeal regarding the admissibility of the medical testimony. We affirm without comment as to the remaining issues on cross-appeal.
Claimant suffered a compensable injury on February 25, 1983. She reached maximum medical improvement (MMI) on September 10, 1990, and since that time, the E/C have continued to provide palliative care in the form of chiropractic treatment. The E/C administratively accepted Claimant as PTD in 1991 and commenced paying PTD benefits. In January 2004, Claimant underwent an independent medical examination (IME) with Dr. Moorefield, which the E/C arranged. Dr. Moorefield eventually recommended Claimant undergo a functional capacity evaluation (FCE) to assist him in evaluating her physical condition. Both Claimant and the E/C agree Claimant's condition improved subsequent to bariatric surgery she underwent prior to the IME. In August 2004, the E/C sought to obtain the FCE.
Claimant failed to attend the FCE appointments scheduled in August, September, and October of 2004. She explained she was forced to evacuate her home during those months due to hurricanes and did not receive notice of the appointments until after the fact. The E/C's adjuster administratively suspended all benefits on October 8, 2004, based on Claimant's failure to attend the FCE's and having received no information from Claimant as to whether she intended to attend an FCE.
Claimant saw Dr. Gary Weiss, a neurologist, on April 3, July 30, and August 8, 2007. Claimant's authorized chiropractor, Dr. Paul Yocum, testified he referred Claimant to Dr. Weiss on August 2, 2007, and he was aware she had seen Dr. Weiss prior to that date. Dr. Weiss testified as to Claimant's need for medical treatment. However, the JCC denied admissibility of this testimony.
At the final hearing, Claimant sought, inter alia, PTD benefits from the date of termination to the present and continuing, authorization of Dr. Weiss or another primary care physician, and bad-faith attorney's fees. Both parties submitted evidence addressing whether Claimant was PTD and stipulated the 1983 version of the statutes governed the issues of medical care and indemnity.
Ultimately, the JCC found no statutory authority for the E/C to unilaterally suspend Claimant's PTD benefits due to her failure to attend the FCE's. Based on this finding, the JCC ordered the E/C to recommence PTD benefits from the October 8, 2004, termination date "and forward." This was error.
Because the E/C voluntarily paid PTD benefits and there was no adjudication of Claimant's entitlement to such benefits, the E/C were entitled to unilaterally suspend PTD benefits because of Claimant's failure to attend an FCE, or for any other reason. See Knapp v. Fla. Mining & Materials, 662 So.2d 983 (Fla. 1st DCA 1995).
In Knapp, the E/C voluntarily commenced paying PTD benefits. Id. at 984. Subsequently, the claimant sought payment of certain medical benefits, and at a hearing on that issue, the parties stipulated the E/C had previously accepted the claimant as PTD. In a later hearing, the claimant sought PTD supplemental benefits, and the parties entered the same stipulation. The JCC awarded PTD supplemental benefits and, in his findings, incorporated the parties' stipulation. Id.
Subsequent to that order, the E/C suspended PTD benefits based on evidence that the claimant was working and not reporting his income. The claimant sought reinstatement of PTD benefits. The JCC denied the claim, finding the prior orders did not make...
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University of Miami v. West
...for the JCC to make sufficient findings of ultimate facts to permit appellate review. See Lee County Parks & Recreation/Lee County Bd. of County Com'rs v. Fifer, 996 So.2d 229, 232 (Fla. 1st DCA 2008) (reversing the JCC's award of indemnity benefits because it was "unclear whether the JCC c......