Village Inn Restaurant v. Aridi

• Decision Date: 31 March 1989
• Docket Number: No. 87-1387,87-1387
• Citation: 14 Fla. L. Weekly 803,543 So.2d 778
• Parties: 14 Fla. L. Weekly 803 VILLAGE INN RESTAURANT and Gallagher-Bassett Services, Inc., Appellants, v. Sam ARIDI, Appellee.
• Court: Florida District Court of Appeals

Page 778

543 So.2d 778

14 Fla. L. Weekly 803

VILLAGE INN RESTAURANT and Gallagher-Bassett Services, Inc., Appellants, v. Sam ARIDI, Appellee.

No. 87-1387.

District Court of Appeal of Florida,

First District.

March 31, 1989.

Jonathan L. Alpert and Randall O. Reder, of Alpert, Josey, Grilli, Paris & Hanna, Tampa, for appellants/cross-appellees.

Stephen L. Rosen and Leo D. Gomez, of Morris & Rosen, P.A., Tampa, for appellee/cross-appellant.

ON MOTION FOR REHEARING

SHIVERS, Judge.

Appellants' Motion for Rehearing or Clarification and appellee's Motion for Rehearing are granted. We withdraw our opinion filed December 16, 1988, and substitute the following opinion therefor.

The employer/carrier (E/C) in this worker's compensation appeal challenge an order of the Deputy Commissioner (DC) ordering the E/C to pay temporary total disability (TTD) benefits, wage-loss benefits, and to pay for future medical treatment. Claimant cross-appeals the DC's denial of wage-loss benefits after December 15, 1986. We affirm the DC's award of TTD benefits through July 20, 1986 and his denial of wage-loss benefits after December 15, 1986. We remand for further proceedings on those benefits awarded between July 21, 1986 and December 15, 1986, and we reverse the award of future medical benefits.

The DC determined from the depositions of the experts taken in this case that the exchanges between the attorneys revealed a serious question as to whether the E/C intended to authorize any medical treatment for the claimant beyond what had already been provided. For that reason, the DC specifically authorized claimant's physician to continue treatment of the claimant as necessary.

Claimant did not request future medical benefits, not in his claim, not in the pretrial stipulation, and not in the notice of hearing. Thus, the DC's award of future medical benefits must be reversed as the issue was not properly placed in controversy. Sewell Plastics, Inc. v. Jackson, 418 So.2d 442 (Fla. 1st DCA 1982); Central Oil Company v. Campen, 390 So.2d 191 (Fla. 1st DCA 1980). All involved parties must have notice of the issues to be disputed and determined. Allman v. Meredith Corp., 451 So.2d 957 (Fla. 1st DCA 1984).

We reject the claimant's contention that because the E/C did not object to future medical benefits the issue is waived on appeal. Since the claimant never properly raised the issue below, he cannot now maintain that failure to object constitutes waiver; there was nothing before the E/C to which an objection could be made. We also reject the contention that the DC's determining an issue not properly placed into controversy is readily correctable, technical error that the E/C failed to attempt to have the DC rectify within the time available for correction. Such error must be the kind that could commonly be considered inconsequential. Department of Labor & Employment Security v. American Building Maintenance, 449 So.2d 932 (Fla. 1st DCA 1984). We cannot say that awarding future medical benefits where none were properly claimed and noticed is of no consequence.

On January 5, 1986, while working for Village Inn, claimant slipped and fell in his employer's freezer and struck his back and head. On July 20, 1986, claimant's physician advised him that he should return to light work and could lead a normal life if he observed minor restrictions on physical activity. On October 15, 1986 claimant's physician assigned him a five percent permanent impairment rating and determined that he had reached maximum medical improvement (MMI). The DC did not abuse his discretion by accepting the testimony of claimant's physician in awarding TTD benefits from the date of accident to July 20 1986, the date claimant was advised to return to light work.

The DC found that after July 20, claimant's "efforts" with a real estate businessman through October 15, 1986 were a reasonable alternative to working with Village Inn and to submitting work search forms. What the DC meant by "efforts" is not clear. "Efforts" could hardly have been used by the DC to mean "work search" because he refers to only one employer. The record in this case strongly suggests that claimant's "efforts" were actually gainful employment which, if the DC were to find, would require reversal of the TTD award after July 20, 1986. E.g., Suncrete Corp. v. Schofield, 490 So.2d 990, 992 (Fla. 1st DCA 1986) ("TTD benefits ... award is improper during those times a claimant demonstrates a partial ability to work.").

At deposition, claimant testified that except for the few days when he worked for his original employer, he had not otherwise been employed or had any income. However, after being confronted with evidence that he had worked in the real estate field he admitted to it. The E/C demonstrated that during the pertinent time period, claimant had in fact deposited thousands of dollars in various accounts, travelled extensively, and purchased a Mercedes Benz. The E/C also discovered numerous documents, including W-2 forms, a November 1986 pay stub, and a salary statement on an auto loan application, all indicating work related income on the part of the claimant during the pertinent time period.

In his order, the DC did not discuss most of this substantial evidence, and did not explain his reasons for not doing so. We thus remand the portion of the TTD award between July 21, 1986, the day after claimant was advised to return to light work, and October 15, 1986, the date claimant reached MMI, for consideration of the evidence that suggests the claimant had work related income. Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959); McCandless v. M.M. Parrish Construction, 449 So.2d 830 (Fla. 1st DCA 1984).

We decline to disturb the DC's findings regarding claimant's credibility. Irving v. City of Daytona Beach, 472 So.2d 810 (Fla. 1st DCA 1985). Whatever of the DC's findings was made in reliance upon claimant's testimony should be supplemented by the discussed evidence that the DC is directed to consider.

Competent, substantial evidence in the record supports the DC's award of wage-loss benefits for the period October 16, 1986 through the date claimant voluntarily limited his income, December 15, 1986. The record shows that claimant conducted an adequate job search; and, medical testimony in the record supports the conclusion that claimant sustained a permanent, physical impairment contributing to wage-loss. The record supports the DC's denial of wage-loss benefits after December 15, 1986 based on the finding that claimant voluntarily limited his income.

However, under section 440.15(3)(b)1, Fla.Stat. (1985), claimant must have actually earned less than 85 percent of his average monthly wage during the pertinent time period. Otherwise, the wage-loss calculation will result in a zero sum. Again, as with the TTD award already discussed, the record is replete with evidence that claimant had work related income during the pertinent time periods. The impact of that evidence should be considered with respect to the wage-loss award also. Magic City Bottle & Supply Co., supra; McCandless, supra.

Claimant was deposed a total of three times. In his May 29, 1987 deposition claimant invoked the fifth amendment and refused to answer questions concerning the amount and sources of his income. By an earlier order, the DC denied the E/C's motions to dismiss and to compel which, in effect, upheld claimant's invocation of the privilege. The E/C appealed and in Vicorp Restaurants, Inc. v. Aridi, 510 So.2d 1082 (Fla. 1st DCA), review denied, 519 So.2d 988 (Fla.1987), we denied review stating that the E/C would have a complete and adequate remedy on plenary appeal.

In its petition for rehearing, appellant argues that appellee, because he was the plaintiff below, should not be permitted to use the fifth amendment to shield himself from inquiry about work related income. Generally, a plaintiff in a civil action may not invoke the fifth amendment and refuse to comply with discovery requests pertinent to the litigation. E.g., Rollins Burdick Hunter v. Euroclassics Ltd., 502 So.2d 959 (Fla. 3d DCA 1987). This doctrine is commonly referred to as the "sword and shield" doctrine, e.g., Fischer v. E.F. Hutton and Company, 463 So.2d 289 (Fla. 2d DCA 1984), and is not without conflict in Florida. Much of the case law has arisen through dissolution appeals. The Third District in Simkins v. Simkins, 219 So.2d 724 (Fla. 3d DCA 1969), declined to follow the Florida Supreme Court case Stockham v....