Parker v. Sugar Cane Growers Co-op, CO-OP and N

• Citation: 595 So.2d 1022
• Decision Date: 09 March 1992
• Docket Number: CO-OP and N,No. 91-288,91-288
• Parties: 17 Fla. L. Weekly D677 Thelma PARKER, Appellant, v. SUGAR CANE GROWERSational Employers Company, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1022

595 So.2d 1022

17 Fla. L. Weekly D677

Thelma PARKER, Appellant, v. SUGAR CANE GROWERS CO-OP and National Employers Company, Appellee.

No. 91-288.

District Court of Appeal of Florida First District.

March 9, 1992.

David C. Chafin, of Lloyd, Hoskins & Pierce, P.A., Fort Pierce, for appellant.

Michael J. McManus, Law Office of Michael A. Edwards, West Palm Beach, for appellee.

ERVIN, Judge.

In this workers' compensation appeal, claimant Parker assails an order denying her certain compensation benefits. We affirm in part, reverse in part, and remand for additional findings.

Claimant first asserts that the judge of compensation claims (JCC) erred in ruling that her concurrent income as a newspaper delivery person could not be included in computing her average weekly wage (AWW) on the ground that she was an independent contractor in that occupation. We disagree with appellant. There is competent, substantial evidence (CSE) in the record supporting the JCC's determination that claimant was employed as an independent contractor by the newspaper and, as a consequence, no concurrent earnings from that employment should be included in her AWW. See Miami Herald Publishing Co. v. Kendall, 88 So.2d 276 (Fla.1956); Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847 (1940); Edwards v. Caulfield, 560 So.2d 364 (Fla. 1st DCA 1990).

We also cannot accept appellant's argument that the JCC erred in failing to rule on her claim until seven months after the final hearing. Although Section 440.25(3)(b), Florida Statutes (1987), provides that the JCC should determine the dispute within 30 days following the hearing, this language has been interpreted as directory only. Scottie-Craft Boat Corp. v. Smith, 336 So.2d 1150, 1151 (Fla.1976). Thus, reversal for a de novo hearing is ordinarily required only if the factual findings in the order were primarily dependent on the superior vantage point of the trier of fact, for example, when an issue is determined solely on a claimant's credibility. See Rappoport v. American Hosp., 406 So.2d 1244, 1245 (Fla. 1st DCA 1981), review denied, 413 So.2d 875 (Fla.1982). In the instant case, while the JCC relied in part upon a determination that claimant's testimony was not credible, her conclusions were also based on other evidence, including deposition testimony of other witnesses and documentary exhibits. Under the circumstances, we do not agree that a de novo hearing is required.

We next consider the appellant's remaining two issues jointly in that we regard them as inextricably interconnected. Claimant argues that the JCC's order is inherently contradictory in that it finds she reached maximum medical improvement (MMI) with no permanent impairment (PI), but also reserves jurisdiction on the issue of restrictions arising from her compensable right knee injury, and, as such, the order frustrates appellate review and constitutes a failure to rule on a ripe issue. Finally, claimant contends that there was no CSE to support that portion of the JCC's order denying the claim for temporary total disability (TTD) or temporary partial disability (TPD) or wage loss (WL) benefits from November 26, 1988 (the date that claimant terminated her employment with the E/C) to the date of the hearing (May 29, 1989), which was based upon a finding that claimant had voluntarily limited her income. Because, as discussed infra, the issue of whether claimant voluntarily limited her income does not become relevant unless the JCC finds it necessary on remand to revisit her prior determination that claimant is MMI with no PI, the latter issue is necessarily dependent upon a resolution favorable to appellant as to the former.

In her final order, the JCC accepted the opinion testimony of Dr. Chalal, an orthopedic surgeon and claimant's primary treating physician, who stated that claimant had reached MMI with no PI rating as of April 14, 1989, as to an industrial injury to claimant's right knee suffered on June 5, 1988. Yet, in the decretal portion of the order, the JCC reserved jurisdiction on a separate claim for vocational rehabilitation until a functional capacity evaluation could be performed for the purpose of ascertaining whether claimant had sustained any restrictions from the injury. We agree with appellant that the JCC's decision that a functional capacity evaluation be performed for the purpose of determining whether the claimant has any restrictions is facially inconsistent with her earlier determination that the claimant had reached MMI with no PI and no physical...