Photo Electronics Corp. v. Glick

• Decision Date: 04 May 1981
• Docket Number: No. TT-408,TT-408
• Citation: 398 So.2d 900
• Parties: PHOTO ELECTRONICS CORPORATION and Insurance Company of North America, Appellants, v. Richard J. GLICK, Appellee.
• Court: Florida District Court of Appeals

Page 900

398 So.2d 900

PHOTO ELECTRONICS CORPORATION and Insurance Company of North America, Appellants, v. Richard J. GLICK, Appellee.

No. TT-408.

District Court of Appeal of Florida, First District.

May 4, 1981.

Rehearing Denied June 9, 1981.

James N. McConnaughhay, of McConnaughhay & Roland, Tallahassee, for appellants.

L. Barry Keyfetz, of Keyfetz & Poses, Miami, for appellee.

McCORD, Judge.

Appellants, employer/carrier, appeal from a workers' compensation order awarding benefits to appellee. We reverse.

On October 7, 1978, appellee injured his right wrist, head, neck and back in a work-related accident. He was hospitalized and later treated on an out-patient basis with employer/carrier paying all medical bills and temporary total disability benefits. Employer/carrier accepted an 18% permanent partial disability rating based upon the May 8, 1979, opinion of appellee's treating physician, Dr. Averbuch.

Dr. Averbuch testified that, in arriving at the 18% rating, he first consulted the American Academy of Orthopedic Surgeons' Table to determine the anatomical impairment, and then he evaluated how that anatomical impairment would affect this particular patient's lifestyle. He stated ... I weigh not only the objective anatomic considerations but I weigh into the complaint that the patient has and over the period of treatment what we have established I weigh what the patient can and cannot do and how it changed his life as a result of his injury. (sic)

In June 1979, Dr. Averbuch changed the rating to 30% permanent partial disability. He testified that appellee's condition had not improved or worsened at the time of the change but that he changed the rating because he learned that the injuries "had significantly interfered with his life more than I had appreciated in May, that it limited it a lot more than I appreciated." He noted that in June he realized how much appellee's injuries had restricted one of appellee's favorite pastimes, guitar playing. Thereupon, appellee filed this claim for 30% permanent partial disability. The deputy commissioner accepted Dr. Averbuch's 30% rating and awarded benefits accordingly.

A Dr. Scott examined appellee and gave him a 25% permanent partial impairment rating. Dr. Turke, an orthopedic surgeon, examined appellee and gave him an overall disability rating of 50%, which is a higher rating than that for which appellee claimed. At the hearing, appellee made an oral motion to amend his claim to allow for a higher than 30% permanent disability rating. The deputy commissioner indicated that he would grant the motion, but he did not ever actually rule on it.

Appellants assert that the deputy commissioner erred in accepting the testimony of Dr. Averbuch as to his opinion of disability. Appellants contend that Dr. Averbuch testified beyond his competence, because a doctor is qualified to testify only as to physical impairment whereas any determination of disability is to be made by the deputy...