Wilhoit Intern. v. Tidwell

• Decision Date: 17 November 1986
• Docket Number: No. BK-424,BK-424
• Citation: 11 Fla. L. Weekly 2396,497 So.2d 958
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 2396 WILHOIT INTERNATIONAL and Aetna Life & Casualty Company, Appellants, v. John TIDWELL, Appellee.

Page 958

497 So.2d 958

11 Fla. L. Weekly 2396

WILHOIT INTERNATIONAL and Aetna Life & Casualty Company, Appellants, v. John TIDWELL, Appellee.

No. BK-424.

District Court of Appeal of Florida First District.

Nov. 17, 1986.

Daniel DeCiccio of DeCiccio & Broussard, Orlando, for appellants.

Edward Hurt, Sr. of Hurt, Parrish & Dalton, P.A., Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.

MILLS, Judge.

Wilhoit International and Aetna Life & Casualty Co. (E/C) appeal from an order of the deputy commissioner (D/C) awarding Tidwell permanent total disability (PTD) benefits and an attorney's fee pursuant to Section 440.34(2)(c), Florida Statutes (1979). We affirm in part and reverse in part.

In October 1979, while employed by the E/C as a welder, Tidwell struck his lower back on a steel beam. He sought treatment in June 1980 from Dr. Ortiz, an orthopedic surgeon, who has continued to treat him. Ortiz found that the industrial accident had aggravated the pre-existing asymptomatic condition of spondylolisthesis and that, as a result, Tidwell had a 20% permanent impairment to his body as a whole. Therefore, Tidwell was restricted from continuous sitting and/or walking for more than 30 minutes at a time, from lifting more than 10 pounds and from bending, squatting, crawling or overhead reaching. Ortiz opined that Tidwell could not do even light work uninterruptedly and that rehabilitation was not recommended based on the length of time he had been out of work, his advanced age (66 years) and his physical problems.

Dr. Stanford is also an orthopedic surgeon, who examined Tidwell once at the behest of the E/C. It was his opinion that Tidwell was capable of light work and that, while he suffered 22% permanent impairment to the body as a whole, he would be 20% permanently impaired because of the pre-existing spondylolisthesis in the absence of any industrial injury. Stanford conceded that the pre-existing condition had been asymptomatic before the injury and had not affected Tidwell's ability to perform his job.

In an attempt by the E/C at rehabilitation, Tidwell was interviewed in February 1982 by Jack Thomas, a rehabilitation coordinator. However, Thomas questioned "the suitability of these services at the present time" due to some possibility of surgery and no further efforts at rehabilitation were undertaken by the E/C until February 1985. At that time, counselor Suzanne Funk was assigned Tidwell's case, but in May 1985, it was mutually agreed between Funk and the E/C, with no input from Tidwell or his attorney, that no more rehabilitation would be done at that time; it was "put on hold."

Tidwell authorized the recommencing of rehabilitative efforts in August 1985, but scheduling difficulties prevented any meetings with the assigned counselor. As a result of these difficulties, the E/C filed a "motion for vocational testing," alleging in part that because Tidwell was by that time seeking permanent total disability benefits, "the E/C is justified in establishing testimony which would indicate whether or not claimant is capable of performing any other jobs within his physical limitations and restrictions." The motion was denied after hearing.

The E/C thereupon authorized Tom Ireland, a rehabilitation counselor, to conduct an independent telephone job search, advising Ireland by letter to use Dr. Stanford's deposition and medical reports in establishing Tidwell's restrictions. Using these items, Ireland located three jobs which the respective employers opined someone with Tidwell's restrictions could do. Ireland conceded that he had had no access to Dr. Ortiz' opinions regarding Tidwell's restrictions and that, although he knew of Ortiz' opinion that Tidwell could not do light work, he did not mention that to the prospective employers.

In December 1985, the D/C entered his order granting Tidwell's request for PTD benefits, based on his acceptance of Ortiz' opinion that Tidwell could not do even light work uninterruptedly. With regard to rehabilitation, the D/C found that counseling had been provided for the first time in 1985 and that the counselor had been instructed to cease her efforts by the E/C itself; the August 1985 efforts were found to be for the sole purpose of creating a defense to Tidwell's PTD claim.

The E/C had contended at the hearing that 90% of the permanent benefits sought by Tidwell should be apportioned out, based on Dr. Stanford's testimony that Tidwell would be 20% permanently impaired from the pre-existing condition absent any industrial injury, after which he was 22% permanently impaired. The D/C rejected this argument, finding no evidence either of impairment before the accident or of natural progression of the pre-existing condition. Based on the apportionment defense, the D/C awarded Tidwell an attorney's fee pursuant to Section 440.34(2)(c), Florida Statutes (1979) (awardable when the E/C denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on compensability).

The E/C contends first that the award of PTD was erroneous in that there was medical testimony that Tidwell could do light work. However, Dr. Ortiz, Tidwell's treating physician since the time of the injury, testified that he was unable to do even light work uninterruptedly and it was within the D/C's discretion to accept this testimony over Dr. Stanford's to the contrary. See McCandless v. M.M. Parrish Construction, 449 So.2d 830, 833 (Fla. 1st DCA 1984).

Further, the E/C argues that...