Wackenhut Corp. v. Freilich, AW-121

• Decision Date: 20 February 1985
• Docket Number: No. AW-121,AW-121
• Citation: 464 So.2d 217,10 Fla. L. Weekly 468
• Parties: 10 Fla. L. Weekly 468 WACKENHUT CORPORATION and Home Insurance Company, Appellants, v. Victor Max FREILICH, Appellee.
• Court: Florida District Court of Appeals

Page 217

464 So.2d 217

10 Fla. L. Weekly 468

WACKENHUT CORPORATION and Home Insurance Company, Appellants, v. Victor Max FREILICH, Appellee.

No. AW-121.

District Court of Appeal of Florida First District.

Feb. 20, 1985.

Rehearings Denied March 20, 1985.

Barry A. Pemsler of Richard & Pemsler, Miami, for appellants.

Jerold Feuer, Miami, for appellee.

BARFIELD, Judge.

The employer/carrier appeal the final order of the deputy commissioner alleging several grounds for reversal, some of which we find to be without merit but others, with which we agree, are discussed below. The order is affirmed in all other respects.

As a result of his industrial accident, claimant requested psychiatric examination by Dr. Stillman. The carrier responded by refusing to authorize Dr. Stillman but offered two other psychiatrists. Claimant, finding those two unacceptable, began consulting Dr. Stillman. This physician suspected that claimant was suffering from brain damage and sought confirmation by neuropsychological testing. As before, the carrier refused to authorize claimant's preference, Dr. Crown, but authorized Dr. Morris. Claimant was tested by Dr. Crown nevertheless. The deputy commissioner authorized payment of the medical bills of Dr. Crown and Dr. Stillman incurred prior to a hearing. This was error and is reversed. Usher v. Cothron, 445 So.2d 387 (Fla. 1st DCA 1984), makes it clear that when the parties cannot agree to a treating physician in a non-emergency situation, it is the burden of the claimant to seek a decision through the deputy or risk paying the bill. Since the claimant failed to ask for resolution of the deadlocks, he is responsible for the charges of Drs. Stillman and Crown prior to the hearing. We find competent and substantial evidence in the record to support the deputy's authorization of continuing treatment of claimant by Dr. Stillman, however, and we affirm that portion of the order.

The deputy commissioner erroneously calculated average weekly wage of the claimant by including the value of insurance benefits and by concluding that there was a similar employee of the employer. Claimant's right to the insurance benefits had not vested, and their value could not properly be included in the calculation. City of Tampa v. Bartley, 413 So.2d 1280 (Fla. 1st DCA 1982). At deposition, prior to the hearing, the employer denied the existence of a similar employee. At the time of that deposition, the employer produced certain payroll computer printouts that included claimant's records, as well as many other employees, including one named Capasso. It is clear from the record that the computer...