Spaulding v. Albertson's

• Decision Date: 17 May 1989
• Docket Number: No. 88-2156,88-2156
• Parties: 14 Fla. L. Weekly 1224 Joyce SPAULDING, Appellant, v. ALBERTSON'S and Diversified Risk Administrators, Appellees.
• Court: Florida District Court of Appeals

Page 858

543 So.2d 858

14 Fla. L. Weekly 1224

Joyce SPAULDING, Appellant, v. ALBERTSON'S and Diversified Risk Administrators, Appellees.

No. 88-2156.

District Court of Appeal of Florida,

First District.

May 17, 1989.

Rehearing Denied June 21, 1989.

Susan W. Fox, of Macfarlane, Ferguson, Allison & Kelly, Tampa; and H. Guy Smith, Lakeland, for appellant.

Jeffrey R. Fuller, of Williams, Brasfield, Wertz, Fuller & Lamb, St. Petersburg, for appellees.

WIGGINTON, Judge.

Appellant appeals the deputy commissioner's order awarding her temporary partial disability benefits but denying her claim for temporary total disability benefits. We reverse and remand.

In March 1982, appellant injured her right arm and wrist in a work-related accident. Her treating physician found that she has reached maximum medical improvement orthopedically and he released her to return to light work. However, her psychiatrist testified without contradiction that she was temporarily totally disabled psychiatrically from the time he first saw her in December 1987 through the time he last saw her in May 1988. He attributed her psychiatric disability at least in most part to her compensable injury even after he considered the fact that she had at least two other noncompensable maladies.

The evidence showed that appellant suffered from an unrelated, long-standing vertigo condition which, according to her treating physician, had rendered her totally disabled by September 1987. In his opinion, she probably never would be able to return to work due to that condition. The evidence also showed that after her compensable accident, but before September 1987, she had been able to perform at least two jobs which she later gave up for reasons unrelated to her compensable injury. In her deposition, she stated that her compensable condition had not worsened since she left the last of those jobs. Employer/carrier presented testimony from a rehabilitation counselor that appellant was not motivated to return to work. Employer/carrier also made argument casting doubt on the psychiatrist's credibility but did not present any contradictory testimony in that regard.

The deputy commissioner concluded that appellant had made little effort to return to work although she appeared to be capable of performing some types of employment. He accepted the psychiatrist's opinion that she remained in need of psychiatric care but he made no mention of the psychiatrist's testimony regarding her temporary total disability. He concluded that she had voluntarily limited her income, that she is capable of earning $4.00 per hour or $160 per week, and that she should be paid temporary partial disability benefits based upon a deemed earning capacity of that amount, pursuant to Section 440.15(3)(b)2, Florida Statutes.

The deputy commissioner's rejection, without explanation, of the psychiatrist's unrefuted testimony that appellant was psychiatrically temporary totally disabled from at least December 1987 until May 1988 was error. Olsen v. Wellcraft Marine Corporation, 540 So.2d 878 (Fla....