Reynolds v. Neisner Bros., Inc., AP-283
| Decision Date | 02 September 1983 |
| Docket Number | No. AP-283,AP-283 |
| Citation | 436 So.2d 1070 |
| Parties | Pearl Allie REYNOLDS, Appellant, v. NEISNER BROTHERS, INC., Employers Insurance of Wausau and Commercial Union Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
Bruce R. Kaster, of McClellan, Kaster & Vostrejs, P.A., Ocala, for appellant.
Martin J. Mickler, of Bullock, Sharp, Childs, Mickler & Cohen, P.A., for appellees Neisner Bros., Inc., and Commercial Union Ins. Co.
The claimant appeals the final order of the deputy commissioner which denies her claim for permanent total disability benefits (PTD) and future medical benefits, and, as to the TTD benefits actually awarded, calculates her average weekly wage (AWW) as $100.65. She argues that the findings of the deputy commissioner are contradictory, confusing, and not in accordance with the evidence. We affirm on the denial of future medical benefits and reverse and remand on the other points.
On October 14, 1977, Reynolds suffered an injury to the thoracic area of her back, when she slipped on a freshly waxed floor while working as a sales clerk at the employer's store. As a result of the injury, she received temporary total disability benefits (TTD) until February 20, 1978, when she was released by Dr. Marsh. She was also treated by Dr. Whittaker, who saw her on only two occasions, April 6, 1978 and January 2, 1979. He determined that she had sustained a compression fracture in the thoracic spine caused by the accident, with a 5% permanent physical impairment. He opined that she had reached maximum medical improvement (MMI) on April 6, 1978 and that she was then able to work. Although Reynolds had been working thirty-seven and a half hours per week before the accident at $2.65 per hour, she began her work at twenty hours per week upon her return and eventually increased her time to thirty hours per week at $3.70 per hour, which she maintained until October 11, 1981. Reynolds claimed that on that date she was unable to straighten up after bending to pick up a piece of paper at home. She attributed the October 11, 1981 back problem to repeated trauma that aggravated her October 14, 1977 back injury, amounting to a new accident for which she sought compensation, sustained during the moving of merchandise at the store during August and September of 1981, and more specifically while moving a heavy rack of clothes in August 1981.
Dr. Freed treated Reynolds for the back problem on three occasions, October 27, 1981, November 17, 1981 and December 11, 1981. He testified in a deposition that his examination of Reynolds revealed prior back injury, including a compression fracture of the lumbar spine which he estimated was a result of the 1977 accident. He gave his opinion that she had a permanent physical impairment of 8%, and that her period of TTD was from October 27 until December 11, 1981, when he felt she was able to return to work with limitations on heavy lifting, bending, pulling and pushing. By later deposition, however, Dr. Freed modified in part his diagnosis as he had since become aware of Dr. Whittaker's medical reports concerning Reynolds' back problems. Dr. Freed had not previously been aware of the compression fracture of the thoracic spine, but upon learning of it, he gave his opinion that such fracture stemmed from the 1977 accident and that the compression fracture to her lumbar spine was caused by the incident in August 1981, while she was pushing the heavy rack of clothes. Based on his subsequent analysis of her condition, he gave her a permanent impairment rating of 12% to the body as a whole based on the multiple compression fractures, but his opinion that she was able to work with some limitations as of December 11, 1981 had not changed.
The deputy commissioner's order found that Reynolds had previously, on October 14, 1977, suffered a compensable accident, for which she had received compensation and medical benefits. The testimonies of Drs. Whittaker and Freed were taken into consideration by the deputy and the order found their testimonies to be in conflict with regard to her impairment. The deputy accepted only the testimony of Dr. Whittaker, as he was the treating physician, and was therefore in a better position to make the determination of her impairment. Then, purportedly on the basis of...
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