Utley-James, Inc. v. Lady, UTLEY-JAME

• Decision Date: 18 April 1984
• Docket Number: UTLEY-JAME,No. AT-188,INC,AT-188
• Citation: 448 So.2d 1191
• Parties: , and Continental Ins. Co., Appellants, v. Richard G. LADY, Appellee.
• Court: Florida District Court of Appeals

Page 1191

448 So.2d 1191

UTLEY-JAMES, INC., and Continental Ins. Co., Appellants, v. Richard G. LADY, Appellee.

No. AT-188.

District Court of Appeal of Florida First District.

April 18, 1984.

Richard G. Davis, of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellants.

Joseph L. Thury, of Antinori & Thury, Tampa, for appellee.

WENTWORTH, Judge.

Employer/carrier appeal a workers' compensation order by which claimant was awarded temporary disability benefits. We affirm the order appealed ¹ because we find the award properly based on evidence of work search commensurate with claimant's medical condition during the four month period in question. ²

Claimant is a 53 year old eighth-grade educated worker who has done only heavy manual labor, and who sustained a fracture of his right wrist in an industrial accident. After receiving treatment from Dr. Williamson claimant was initially released without restriction on November 22, 1982. However, on returning to his former employment claimant found that his job activities produced disabling pain which precluded him from continuing such employment. Claimant returned to Dr. Williamson, who then referred him to Dr. Boling, an orthopedist specializing in hand surgery, for further examination and treatment including the possibility of surgery. Claimant continued under Dr. Boling's care until April 13, 1983, during which period medical reports in the record show advice that his condition "could be improved ... by a wrist fusion," and on March 21 "I told him if he wasn't having much pain certainly don't consider any surgery, and go back to work and see what he can do with it." The report of April 13 states "[i]f he goes back to laboring and he does have pain obviously we will consider him disabled until he makes up his mind what he wants to do." Although he did not make any final decision with regard to surgical intervention, claimant did express his reluctance to pursue this course of treatment, having been told "[i]t is doubtful even with a wrist fusion he would return to full duty of what he was doing before." Dr. Boling ultimately testified that claimant's condition had remained essentially unchanged throughout the term of his care, and that without surgery no further improvement is reasonably anticipated.

Although Dr. Boling stated that he would defer to Dr. Williamson's opinion regarding claimant's attainment of maximum medical improvement, and Dr. Williamson suggested that MMI had been attained in December 1982, these opinions were reached retrospectively, after Dr. Boling terminated his active care of claimant. To compel a deputy's acceptance of such opinion based on retrospective contemplation would clearly constitute misapplication of the concept of maximum medical improvement under the statute. Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969), explains:

The nature of medical treatment is not to be determined by the ultimate success or failure of the treatments. Treatments are curative in nature if administered or prescribed by a qualified physician with a reasonable expectation that they will bring about some degree of recovery.... Temporary disability continues as long as recovery or lasting improvement in the injured person's condition can reasonably be expected.... Maximum medical improvement is the date after which recovery or lasting improvement can no longer reasonably be anticipated.

In the present case Dr. Williamson testified that he referred claimant to Dr. Boling for such further treatment as Dr. Boling might deem advisable, and claimant continued under Dr. Boling's active care until April 13, 1983. At no time before that date in the course of Dr. Boling's attendance was claimant unequivocally released from care or advised that any medical care other than surgery was useless. Regardless of the ultimate success or failure of his attendance in effecting improvement in claimant's condition, Dr. Boling's care was remedial in nature since it was continued with an expectation that some degree of further recovery might be effected. Such expectation precludes an earlier determination of maximum medical improvement, and the deputy did not err in finding that claimant reached this plateau only upon the termination of Dr. Boling's attendance. ³

Evidence of medical incapacity causing total economic disability, or evidence of a good faith work search, is required to establish entitlement to temporary disability benefits. See e.g., Huntley Jiffy Stores v. Allen, 445 So.2d 630 (Fla. 1st DCA 1984). In the present case claimant's physicians all agreed that throughout the course of Dr. Boling's care claimant remained unable to return to his former employment or any other heavy laboring endeavor. Although claimant admittedly did not contact all prospective employers whom he listed on the wage loss forms he submitted, claimant did testify as to a significant number of contacts with listed employers, as well as other unlisted employment contacts. The deputy was accordingly entitled to conclude that claimant's effort to find other employment,...