Velasquez v. Malaja Const., Inc.
| Decision Date | 10 November 1998 |
| Docket Number | No. 97-1719,97-1719 |
| Parties | 23 Fla. L. Weekly D2515 Israel VELASQUEZ, Appellant, v. MALAJA CONSTRUCTION, INC. and Wausau Insurance Companies, Appellees. |
| Court | Florida District Court of Appeals |
Mark J. Feldman of Mark J. Feldman, P.A., Miami, for Appellant.
Benjamin D. Levy and Cindy J. Mishcon of Pyszka, Douberley, Blackmon, Levy & Savola, P.A., Miami, for Appellees.
Israel Velasquez appeals a final compensation order which ruled that he had "failed to prevail on any of his requests." On appeal, he contends that the judge of compensation claims erred in not assigning a higher permanent impairment rating, in refusing to order an independent medical (psychiatric) examination, and in denying a motion for continuance of the merits hearing. Finding no error, we affirm.
On July 21, 1995, Mr. Velasquez fell off a roof and fractured two vertebrae. His employer, Malaja Construction, Inc. (Malaja), and Wausau Insurance Company (Wausau), the employer's carrier, accepted the accident as compensable and provided treatment, including surgery on August 8, 1995, by Dr. Carter, a neurosurgeon, and Dr. Stauber, an orthopedist. Wausau voluntarily paid temporary disability benefits and, based on a permanent impairment rating of eighteen per cent, also paid permanent impairment benefits.
Mr. Velasquez filed petitions for benefits seeking, among other things, additional permanent impairment benefits. Permanent impairment benefits are "computed at the rate of 3 weeks for each percentage point of impairment." § 440.15(3)(a)3.a., Fla. Stat. (1995). At issue as a factual matter below was the extent of Mr. Velasquez's permanent impairment stated as a percentage of the body as a whole in accordance with "a uniform permanent impairment rating schedule." § 440.15(3)(a)2., Fla. Stat. (1995).
Dr. Carter was of the opinion that Mr. Velasquez had attained maximum medical improvement by October 7, 1996, and probably earlier, and that he had a permanent impairment of eighteen per cent. Dr. Stauber, the other treating physician, expressed the view that by the time he examined Mr. Velasquez on October 21, 1996, he was at maximum medical improvement with a permanent impairment of twelve per cent.
The highest impairment rating was assigned by Dr. Barrios, the independent medical examiner selected by Malaja and Wausau, who had performed his examination some six months earlier on April 17, 1996. Dr. Barrios thought Mr. Velasquez had already reached maximum medical improvement as of April 17, 1996, and put what he concluded was a permanent impairment at forty per cent. 1 Dr. Lustgarten, the independent medical examiner Mr. Velasquez chose, performed his examination on September 26, 1996, concluded that Mr. Velasquez had reached maximum medical improvement as of that date, and assigned a ten per cent permanent impairment.
As the finder of fact, the judge of compensation claims had to decide which doctor's testimony to credit. See Kessler v. Community Blood Bank, 621 So.2d 539, 542 (Fla. 1st DCA 1993); S and S Stove Repair, Inc. v. Dumas, 465 So.2d 644, 646 (Fla. 1st DCA 1985); Jefferson Stores, Inc. v. Rosenfeld, 386 So.2d 865, 865-66 (Fla. 1st DCA 1980). After considering the opinions of Drs. Carter, Stauber, Barrios, and Lustgarten, the judge of compensation claims found that Mr. Velasquez had reached maximum medical improvement by October 10, 1996, 2 with a permanent impairment of eighteen per cent as a result of the accident.
The statute contemplates a two-step process. The first step is to ascertain the point of maximum medical improvement. The second step is to gauge the extent of impairment existing at the point where "further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability." § 440.02(8), Fla. Stat. (1995). Ascertaining the exact date is necessary to determine when permanent indemnity benefits begin, if maximum medical improvement is reached before 104 weeks of temporary disability benefits have been paid. See generally City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998). In any event, the essential first step is that a qualified professional perceive (or envision, see Oswald, 710 So.2d at 97-98) the injured employee's medical condition as of the point of maximum medical improvement.
Dr. Barrios's opinion--the only opinion supporting an impairment rating higher than the rating the judge of compensation claims found--was eliminated from further consideration at the first step. 3 The order under review recites: "As I have no confidence in the opinions of Dr. Barrios, I specifically reject his thoughts on MMI and his 40% impairment rating." Dr. Carter testified that Dr. Barrios's assessment did not take into account the successful surgical intervention. Excluding Dr. Barrios's opinion--because it did not accurately reflect Mr. Velasquez's condition at the point of maximum medical improvement--left Dr. Carter's eighteen per cent rating the "highest ... estimate of permanent impairment ... in evidence." § 440.1925(5), Fla. Stat. (1995).
Mr. Velasquez also argues for reversal on grounds that his motion to compel an independent medical (psychiatric) examination should have been granted. A judge of compensation claims is authorized to order an employer or carrier to provide an independent medical examination only if there is a "dispute concerning overutilization, medical benefits, compensability, or disability." § 440.13(5)(a), Fla. Stat. (1995). Because Mr. Velasquez did not prove the existence of any dispute over his entitlement to psychiatric care, the judge of compensation claims properly denied Mr. Velasquez's motion.
A request for an independent medical evaluation made before evaluation and treatment have been authorized may itself be viewed as a request for medical benefits. Denying such a request may therefore create a dispute of the kind contemplated by section 440.13(5)(a), Florida Statutes (1995). See ABC Liquors, Inc. v. Flores, 700 So.2d 102, 102 (Fla. 1st DCA 1997). Differences over future medical benefits may also arise after medical benefits have been furnished, when one party disagrees with the diagnosis of a treating physician, or of the other party's independent medical examiner. See Union Camp Corp. v. Hurst, 696 So.2d 873, 875 (Fla. 1st DCA 1997) (...
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