Primous v. Flagler Systems, Inc., BE-7

• Decision Date: 24 October 1985
• Docket Number: No. BE-7,BE-7
• Citation: 10 Fla. L. Weekly 2402,477 So.2d 1057
• Parties: 10 Fla. L. Weekly 2402 Sheila E. PRIMOUS, Appellant, v. FLAGLER SYSTEMS, INC., d/b/a Breakers Hotel, and Gates, McDonald and Company, Appellees.
• Court: Florida District Court of Appeals

Page 1057

477 So.2d 1057

10 Fla. L. Weekly 2402

Sheila E. PRIMOUS, Appellant, v. FLAGLER SYSTEMS, INC., d/b/a Breakers Hotel, and Gates, McDonald and Company, Appellees.

No. BE-7.

District Court of Appeal of Florida First District.

Oct. 24, 1985.

Rehearing Denied Nov. 25, 1985.

Walter E. Beisler of Beisler & Beisler, West Palm Beach, for appellant.

James C. Helfrich and William P. Zimmerman, III of Wahl and Gabel, Jacksonville, for appellees.

SHIVERS, Judge.

Appellant, claimant in this workers' compensation action, appeals the final order of the Chief Commissioner denying her claim for temporary disability benefits and weight control treatment, and assessing costs against her. We affirm in part, reverse and remand.

Claimant, a 24-year-old woman, first began working for the employer in 1982 cleaning, sorting and polishing silverware. On approximately February 7, 1983 she fell while at work, injuring her right knee. She began treatment with Dr. Brandon, an orthopedic surgeon, in December of 1983. Although Dr. Brandon felt that arthroscopy and surgery were required, he advised claimant that he was unable to perform these procedures until she lost approximately 100 pounds.

In January or February of 1984, the employer informed claimant of the Weight Watchers program and voluntarily offered to pay for her attendance. She failed to take steps toward participating in Weight Watchers at that time. By March 1984, when claimant had still not made progress in her weight loss, Dr. Brandon referred her to Dr. Bone for medical weight loss assistance. Authorization for Dr. Bone and for Weight Watchers was granted by the carrier in April of 1984. On April 27, before claimant was able to see Dr. Bone, her right knee gave way as she was getting into her car, causing her to injure her left knee. She saw Dr. Brandon on April 30 for the second injury, at which time he removed two ounces of fluid from the knee, gave her a brace to wear, and signed a slip indicating she was unable to work.

After the second knee injury, claimant missed work from April 27 to June 14 and was paid temporary disability benefits for that period of time. She apparently returned to work on June 14, as authorized by Dr. Brandon, but testified that she suffered pain and swelling in her knee, was unable to continue work, and left the Breakers on June 24. The evidence presented at the hearing indicates that claimant did not inform anyone at the Breakers that she was leaving on the 24th.

As to claimant's weight loss progress, she had her first appointment with Dr. Bone on June 5, 1984 and her last on July 12, 1984. Her treatment with Dr. Bone apparently ended when he terminated his practice and left the state of Florida. Although Bone's records were not placed into evidence, claimant testified that her weight fluctuated from 298 to 318, back to 292 during her five weeks of treatment with Dr. Bone. Approximately two months later, on September 16, 1984, claimant began attending Weight Watchers per the employer/carrier's authorization. According to claimant's notes, Weight Watchers indicated she weighed 372 pounds on September 16 and 366 pounds on October 21, 1984. The hearing was held on October 29, 1984.

In July of 1984, claimant requested temporary total disability (TTD) and/or temporary partial disability (TPD) benefits for the period from June 27 through July 12, 1984. During the hearing, the claimant and the employer/carrier agreed that the Commissioner would also consider claimant's request for additional medical care in the form of a weight loss clinic. The Commissioner entered an order denying benefits for the period claimed, denying additional medical care, revoking the carrier's authorization for Weight Watchers, determining that claimant had reached maximum medical improvement (MMI) as of the date of the hearing, denying attorney's fees and costs, and assessing costs against the claimant. From the Commissioner's order, the claimant appeals, alleging error in several respects.

First, appellant alleges the Commissioner erred in denying her claim for weight loss treatment and argues that the Commissioner's findings that she had not benefitted from or seriously participated in her weight loss program and was not capable of doing so in the future, were not supported by competent substantial evidence (CSE). We agree.

From Dr. Brandon's testimony, it is clear that the appellant is in need of knee surgery, and that such surgery is impossible until she loses a substantial amount of weight. The evidence indicates that claimant did make progress, albeit slight, during both periods of weight loss treatment, showing a net loss of six pounds during her five weeks of treatment with Dr. Bone and a net loss of six pounds in five weeks with Weight Watchers. Although it is true that claimant was still overweight at the time of the hearing, we feel that the evidence does not support the Commissioner's finding that claimant was unsuccessful or that she will not be able to seriously pursue a weight loss program in the future. It must be kept in mind that claimant had only five weeks of weight loss treatment in June and July of 1984 and had been active with Weight Watchers for only five weeks at the time of the hearing--certainly not...