Sunland Hospital/State of Fla. v. Garrett, AG-422
| Decision Date | 07 June 1982 |
| Docket Number | No. AG-422,AG-422 |
| Citation | 415 So.2d 783 |
| Parties | SUNLAND HOSPITAL/STATE OF FLORIDA, and Division of Risk Management, Appellants, v. Thomas GARRETT, Appellee. |
| Court | Florida District Court of Appeals |
Bernard J. Zimmerman, Michael M. O'Brien, and William G. Berzak, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
Joseph H. Williams of Troutman, Parrish & Williams, P. A., Winter Park, and John F. Wilhelm, Orlando, for appellee.
Sometimes, in workers' compensation cases, complex legal issues have a way of attracting attention only after the deputy has entered a compensation order and the order has been appealed. Here, after briefing and oral argument, we were left to ponder a sticky legal question concerning the deputy's award of 75% permanent partial disability benefits, based on loss of wage earning capacity, to a worker who hurt his previously vulnerable back while at work in May 1979, went back to work a few months later, and injured it again in December 1979.
Did the deputy err in awarding benefits for loss of wage earning capacity in the absence of medical testimony expressing claimant's anatomic impairment in terms of the American Medical Association Guides to the Evaluation of Permanent Impairment? See section 440.15(3)(a)3, Florida Statutes (1979); Decor Painting & Iowa Mutual Insurance Co. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981); Spring Air Mattress Co. v. Cox, 413 So.2d 1265 (Fla. 1st DCA 1982).
Here the deputy found that claimant was physically or anatomically impaired as a result of his May 1979 back injury, as aggravated in December 1979, but the deputy did not rate that impairment in terms of a percentage, whether the AMA-kind of percentage or some other. By deposition a chiropractor testified claimant was totally disabled to work, and the orthopedic surgeon whom the carrier authorized to treat claimant said he was 30 percent permanently impaired when last seen in 1980, due 20 percent to his long-standing back condition (which didn't previously prevent his working), zero percent to his May 1979 accident, from which, the orthopedist said, claimant recovered entirely, and 10 percent to the new injury in December 1979. Neither doctor expressed claimant's disability in terms of AMA-endorsed percentages. Neither was asked to do so, either on direct or on cross-examination.
A practiced eye may discern in these deceptively simple facts a tangle of chapter 440 issues concerning pre-existing conditions, aggravation vs. new injury, law applicable before and after the 1979 amendments to chapter 440, and perhaps other issues, in addition to the need for AMA-endorsed percentages of disability spoken by a doctor, the predicate for finding greater disability due to loss of wage earning capacity. One could write a book.
We think we shall not. None of those issues was substantially raised before the deputy.
No question about AMA-endorsed percentages was raised and noticed in counsel's pre-hearing filing, where the carrier described its "intended position" as:
(1) Claimant has been timely furnished all benefits to which he is entitled to date as a result of the 5/8/79 accident; (2) Reached maximum medical improvement without permanent impairment from 5/8/79 accident; (3) No attorney fees or costs due; (4) Dr. Litchfield [the chiropractor] unauthorized; (5) Claimant not PTD.
The transcript of the deputy's hearing shows the carrier offered no further elaboration of its position, as against claimant's claim and his evidence, before, during, or after the deputy's hearing. The carrier's counsel repeated his "position" in the same general terms quoted above. The two doctors' depositions were filed in evidence without objection. Claimant testified about his disability and work search. The hearing ended without any argument whatever. Counsel rested their case, the deputy thanked one and all, and everybody left.
We do not speculate on whether or how the deputy, if the point now raised had been...
To continue reading
Request your trial
-
Sasso v. Ram Property Management, AG-112
...to the claimant's appeal, since the issue has not been properly preserved for appellate review. See Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982). We disagree. The issue raised on appeal involves the facial constitutionality of the statute, and such an issu......
-
Robinson v. Shands Teaching Hosp.
...Revels, 594 So.2d 855 (Fla. 1st DCA1992); Random House/RCA v. Malone, 553 So.2d 357 (Fla. 1st DCA1989); Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA1982). Moreover, even had such an issue been presented to the judge of compensation claims, there was not competen......
-
Allman v. Meredith Corp., AT-457
...the deputy's order during the 30-day period before the order became final. As this court said in Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783, 784-85 (Fla. 1st DCA 1982): It is familiar general law that an appellate court will not reverse on a point not preserved in the tribu......
-
City of Melbourne v. Haddock
...because this technical argument was not raised below or in this court, we will not base our decision on it. Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); B & J Windows v. Sweitzer, 420 So.2d 363 (Fla. 1st DCA 1982); A & J Tie Beam Service v. Kendle, 511 So.2d 653 (Fla. 1st......