Philpot v. City of Miami, No. 88-1222

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOANOS
Citation541 So.2d 680,14 Fla. L. Weekly 714
Decision Date16 March 1989
Docket NumberNo. 88-1222
Parties14 Fla. L. Weekly 714 Jimmy Lee PHILPOT, Appellant, v. CITY OF MIAMI, Appellee.

Page 680

541 So.2d 680
14 Fla. L. Weekly 714
Jimmy Lee PHILPOT, Appellant,
v.
CITY OF MIAMI, Appellee.
No. 88-1222.
District Court of Appeal of Florida,
First District.
March 16, 1989.
Rehearing Denied April 26, 1989.

Page 681

Emil Jaczynski, Fort Lauderdale, for appellant.

Martha D. Fornaris, Jay M. Levy, of Hershoff, Levy & Swartz, Miami, for appellee.

JOANOS, Judge.

This is an appeal from a workers' compensation order denying a claim for medical treatment and compensation benefits. Claimant alleges error in the deputy commissioner's failure to consider uncontroverted medical testimony, misapprehension of the medical evidence, and failure to make adequate findings of fact. We reverse and remand with directions.

Claimant was injured on August 9, 1984, as he operated a tractor-mower on a highway right-of-way. An exit sign fell on him, injuring his head and the left side of his body. Claimant attempted to return to work at the city nursery on December 3, 1984. However, he suffered a second head injury when he became dizzy, stumbled to his hands and knees, and fell, striking his head first on the desk, and then on the concrete floor. He was rendered unconscious for approximately thirty minutes, treated at the emergency room, and told to seek follow-up care with his own physician.

Claimant did not return to work again until January 1986, when he was then assigned to a sod crew. He was still experiencing dizzy spells, and was walking with the aid of a cane. He was unable to do the assigned work, and sat in a truck most of the day. Claimant has not worked at all since January 1986. He testified that he has continued to experience dizziness when he walks, and this dizziness is accompanied by spells of nausea. Claimant testified he has been unable to look for work, and spends most of his time in bed. In addition to the dizziness, since the accident claimant has had pain in the top of his head, and in his neck, left shoulder, left knee, back, and tail bone.

Over objection, the City's claim adjuster testified that the City stopped compensation payments on January 20, 1986, because it received reports from various doctors that claimant was released to return to work without any impairment. Claimant's attorney objected to these reports on hearsay grounds, the deputy sustained the objection, and the reports were not received in evidence. The doctors who prepared the reports were not produced as witnesses, nor had they been deposed.

Therefore, the depositions of Dr. Ryon and Dr. Gilbert constitute the only medical evidence in the record. Dr. Ryon is a general practitioner who specializes in industrial medicine. He first saw claimant on September 19, 1984, and continued to see him a number of times after that. 1 Dr. Ryon's examination revealed no objective findings that could not be attributed to subjective reasons. Although he could find nothing specific to account for claimant's continuing problems, he concluded that claimant was injured, and that his life has been seriously disrupted. In Dr. Ryon's opinion, claimant is not a malingerer, and he has, at

Page 682

a minimum, a fifteen percent impairment attributable to the accident of August 9, 1984. Dr. Ryon said he was unfamiliar with the latest edition of the American Medical Association Guides to Permanent Impairment (AMA Guides); consequently, he could not state with certainty that the fifteen percent impairment was consistent with the Guides.

Dr. Ryon referred claimant to Dr. Gilbert, who specializes in psychiatry and neurology. Dr. Gilbert saw claimant on two occasions, first on December 26, 1986, and then on January 12, 1987. He diagnosed claimant as suffering from a somatization disorder, i.e., a neurotic condition manifested by multiple physical complaints which have lasted over a significant period of time and have no real physical basis. Dr. Gilbert said claimant does in fact feel the pain that he complains of, and that his condition is a consequence of the August 1984 accident. Dr. Gilbert's report indicates that claimant has a twenty percent permanent partial disability due to his psychiatric condition. When asked whether claimant has a permanent disability within the AMA Guides, Dr. Gilbert explained that since claimant has not received treatment, the clinical situation did not conform with the statutory requirement that, where applicable, an impairment rating should be determined in accordance with the AMA Guides. § 440.15(3)(a)3, Fla.Stat. (1983). In other words, because claimant has not been treated for his psychiatric disorder, theoretically he has not reached maximum improvement. Yet, in Dr. Gilbert's opinion, absent treatment, from a practical point of view, claimant has reached maximum psychiatric improvement with a twenty percent permanent disability.

The deputy commissioner denied all benefits, finding that claimant had been offered his former job and had resigned...

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16 practice notes
  • Nickolls v. University of Florida, No. 90-72
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1992
    ...a job search may be excused only if medical evidence is presented showing claimant's inability to work. See Philpot v. City of Miami, 541 So.2d 680 (Fla. 1st DCA 1989). Nevertheless, the work-search requirement Page 417 is not an essential condition to an award of compensation disability be......
  • Chavarria v. Selugal Clothing, Inc., No. 1D00-3467.
    • United States
    • Court of Appeal of Florida (US)
    • February 3, 2003
    ...Serv., Inc., 241 So.2d 1, 3 (Fla.1970); Thomas v. Salvation Army, 562 So.2d 746, 749 (Fla. 1st DCA 1990); Philpot v. City of Miami, 541 So.2d 680, 683 (Fla. 1st DCA 1989). Moreover, the cases cited by the majority do not lend support to any such The trio of cases referred to in Section B of......
  • Ullman v. City of Tampa Parks Dept., No. 91-3048
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...not reject unrefuted medical testimony as to causation without a reasonable explanation for doing so, and cites Philpot v. City of Miami, 541 So.2d 680 (Fla. 1st DCA 1989); Bray v. Electronic Door-Lift, Inc., 558 So.2d 43 (Fla. 1st DCA 1989); Severini v. Pan American Beauty School, Inc., 55......
  • Owens-Illinois v. DeLoach, OWENS-ILLINOIS and G
    • United States
    • Court of Appeal of Florida (US)
    • January 27, 1997
    ...559 So.2d 635 (Fla. 1st DCA 1990); Yeargin Constr. Co. v. Hutchinson, 547 So.2d 1269 (Fla. 1st DCA 1989); Philpot v. City of Miami, 541 So.2d 680 (Fla. 1st DCA In that the JCC's conclusions are readily apparent from the record, and it does not appear that he overlooked or ignored evidence b......
  • Request a trial to view additional results
16 cases
  • Nickolls v. University of Florida, No. 90-72
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1992
    ...a job search may be excused only if medical evidence is presented showing claimant's inability to work. See Philpot v. City of Miami, 541 So.2d 680 (Fla. 1st DCA 1989). Nevertheless, the work-search requirement Page 417 is not an essential condition to an award of compensation disability be......
  • Chavarria v. Selugal Clothing, Inc., No. 1D00-3467.
    • United States
    • Court of Appeal of Florida (US)
    • February 3, 2003
    ...Serv., Inc., 241 So.2d 1, 3 (Fla.1970); Thomas v. Salvation Army, 562 So.2d 746, 749 (Fla. 1st DCA 1990); Philpot v. City of Miami, 541 So.2d 680, 683 (Fla. 1st DCA 1989). Moreover, the cases cited by the majority do not lend support to any such The trio of cases referred to in Section B of......
  • Ullman v. City of Tampa Parks Dept., No. 91-3048
    • United States
    • Court of Appeal of Florida (US)
    • September 15, 1993
    ...not reject unrefuted medical testimony as to causation without a reasonable explanation for doing so, and cites Philpot v. City of Miami, 541 So.2d 680 (Fla. 1st DCA 1989); Bray v. Electronic Door-Lift, Inc., 558 So.2d 43 (Fla. 1st DCA 1989); Severini v. Pan American Beauty School, Inc., 55......
  • Owens-Illinois v. DeLoach, OWENS-ILLINOIS and G
    • United States
    • Court of Appeal of Florida (US)
    • January 27, 1997
    ...559 So.2d 635 (Fla. 1st DCA 1990); Yeargin Constr. Co. v. Hutchinson, 547 So.2d 1269 (Fla. 1st DCA 1989); Philpot v. City of Miami, 541 So.2d 680 (Fla. 1st DCA In that the JCC's conclusions are readily apparent from the record, and it does not appear that he overlooked or ignored evidence b......
  • Request a trial to view additional results

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