Hirschensohn v. Personnel 455 So. 2d 537

SHIVERS, Judge.

In this workers’ compensation case, Hir-schensohn appeals an order of the deputy commissioner which fails to award any benefits beyond those voluntarily paid by the employer/carrier. Appellant contends that the deputy commissioner erred in determining her average weekly wage (AWW), in finding that appellant reached maximum recovery on October 7, 1982, in not awarding temporary total disability (TTD) benefits in excess of those paid by the employer/carrier, and in denying the claim for costs, penalties, interest and attorney’s fees. Appellant also contends that there is no competent, substantial evidence to support the deputy commissioner’s finding that TTD benefits were paid at a rate of $115.17 per week. We affirm in part, reverse and remand in part.

In the order sub judice the deputy commissioner did not explicitly state which subsection of section 440.14, Florida Statutes, was used to determine the claimant's AWW. It is apparent, however, that the mathematical method used was that of section 440.14(l)(a).1 This method cannot be used unless the injured employee has worked substantially the whole of 13 weeks immediately preceding the injury. The statute states that the term “during substantially the whole of 13 weeks” shall be deemed to mean during not less than 90% of the total customary full-time hours of employment within such period considered as a whole. The claimant testified that she was absent from work for a portion of the 13 weeks prior to her accident. There is evidence in the record to show that claimant worked 57 days during the three months prior to the accident. The record, however, does not reveal what appellant’s total customary full-time hours of employment within the 13 week period were. Without a proper predicate in the record, we cannot say that the deputy commissioner erred in utilizing the method of section 440.14(l)(a). Cf. Pate v. Maddox Foundry & Machine Works, 414 So.2d 524 (Fla. 1st DCA), rev. dismissed, 419 So.2d 1199 (Fla. 1982) (stating that the issue of AWW could be decided within the parameters of § 440.-14(1) without referring to a “similar employee” where the record showed that appellant worked more than 90% of a 40 hour week during the 13 weeks before the injury).

*539The record here contains conflicting medical testimony concerning the claimant’s orthopedic condition. Dr. Carlson, claimant’s chiropractor, testified that claimant suffered from low back strain and sub-luxation. He stated that claimant had not reached maximum medical improvement (MMI) at the time of the hearing and that he had recommended she not work from the date of accident, February 26, 1982, through the end of December 1982. However, Dr. Drucker, an orthopedic surgeon, examined claimant on October 7, 1982, and testified that claimant had reached MMI and was not TTD at the time he saw her, that she had no physical residual impairment, and that she was not in need of any active care.

The record also contains conflicting testimony concerning claimant’s psychiatric condition. Dr. Green, claimant’s psychologist, diagnosed depressive reaction with overtones of agitation causally related to the accident. As of the date of the hearing he felt that claimant had not reached MMI psychologically and that she was not able to return to work. However, Dr. Pinosky, a psychiatrist, testified that he saw and evaluated claimant on February 7, 1983, that claimant had no psychiatric condition as a result of the fall and that she needed no psychological treatment because of the fall.

A deputy commissioner may accept the testimony of one doctor and reject that of another, even without explanation. Buro v. Dino’s Southland Meats, 354 So.2d 874 (Fla.1978). The deputy commissioner in the instant case acknowledged the conflicting testimonies of the various doctors. We cannot say that the deputy commissioner erred in accepting the testimonies of a psychiatrist and orthopedic surgeon over those of a psychologist and a chiropractor. We note, however, that the doctors relied upon by the deputy commissioner, Drs. Drucker and Pinosky, did not examine the claimant until October 7, 1982, and February 7, 1983, respectively. For the periods prior to these dates, the only evidence in the record concerning claimant’s condition was the testimonies of Drs. Carlson and Green, both of whom testified that claimant had not reached MMI and was not capable of working. Therefore, we do not think that TTD benefits can be denied appellant prior to February 7, 1983.

Even if there was no medical evidence of total inability to work during this period of time, denial of TTD benefits here could not rest on claimant’s failure to seek work in the absence of evidence that claimant knew or should have known that she was medically released for that purpose. Fulmer-Orlando v. Taylor, 419 So.2d 734 (Fla. 1st DCA 1982); Lakeland Construction Co. v. Flatt, 433 So.2d 1253 (Fla. 1st DCA 1983). Therefore, we reverse the order sub judice insofar as it denies TTD benefits prior to February 7,1983. In light of this reversal, we remand to the deputy commissioner to award appropriate benefits and to reconsider the claim for costs, penalties, interest and attorney’s fees.

In all other respects, the order sub judice is affirmed. The other issue raised by appellant, relating to the compensation rate of $115.17 per week, was not raised before the deputy commissioner. Therefore, we will not address it on appeal. See Mezquita v. Florida Steel Corp., 419 So.2d 675 (Fla. 1st DCA 1982).

AFFIRMED in part, REVERSED and REMANDED in part.

WIGGINTON, J., concurs.

MILLS, J., concurs in part and dissents in part with written opinion.

MILLS, Judge,

concurring in part and dissenting in part:

I would affirm those parts of the deputy’s order which the majority affirmed, but I would also affirm those parts which the majority reversed and remanded.

I find the deputy’s order is supported by competent substantial evidence and the law. I adopt the following from the deputy’s order:

4. That the claimant received an injury by accident arising out of and in the *540course of her employment on February 26, 1982, when she slipped and fell in the waiting room of the employer’s office, suffering a hip sprain.

5. That the claimant’s average weekly wage is $172.76 giving her a compensation rate of $115.17. In making such findings, I recognize the several items of testimony introduced at the hearings relating to the question of average weekly wage and specifically find that, since the claimant and her fellow employees are commission employees and the performance of each depends on the particular ability of each employee, that there was no like employee whose wages should be considered in computing the average weekly wage and that the claimant’s actual earnings should be used. I have considered that the claimant testify that both Kathy Quinn and Shelly Mandell were like employees; however, the employer’s manager testified that Kathy Quinn was the most successful counselor in the employer’s business and her earnings and ability were not similar to the claimant’s. He did testify that Shelly Mandell was more of a like employee; however, I recognize that when computing Shelly Mandell’s earnings, he developed an average weekly wage of only $123.24. The claimant’s actual earnings as represented by the wage schedule submitted into evidence discloses that her earnings were substantially more than Shelly Mandell’s. I therefore find that there was no like employee whose wages should be considered in computing the average weekly wage and that the claimant’s actual earnings should be used. An analysis of the claimant’s wage schedule discloses that the claimant’s actual earnings during the three months prior to the industrial accident amounted to $1,951.30 with an additional fringe benefits of $294.54 for a total of $2,245.84 or $172.76 per week.

6. That the carrier paid temporary total disability compensation benefits at the rate of $115.17 per week for February 27 and 28, 1982 and again for March 2 to August 8, 1982.

7. I recognize the conflicting testimony between the medical evidence presented by the claimant and that presented by the Employer/Carrier and I accept the opinion by Melvin Drucker, M.D., an orthopedic specialist, over that expressed by the claimant’s chiropractic physician, Dr. Carlson. Dr. Drucker testified and I also find that by the time of his examination on October 7, 1982, the claimant had no residual impairment from the industrial accident of February 26, 1982.

8. I also accept the opinion of Dr. David Pinosky, a Board qualified psychiatrist, and Dr. Charles Kram, a psychologist, over that of the testimony of Dr. Robert A. Greene, a psychologist. It was the opinion of Dr. Pinosky that the claimant had a fragile personality; however, any emotional problems, such as she displayed, were not caused by the industrial accident. I further find that said opinion is supported by the opinion of Charles Kram Ph.D., the psychologist who examined and tested the claimant at the request of Dr. David Pinosky. Dr. Kram’s report was introduced into evidence by the claimant. It is my judgment that the opinions and evaluations of Dr. Pinosky and Dr. Kram are representative of a more detailed and objective analysis than that of Dr. Greene whose treatment had been provided to the claimant for slightly over a year prior to her industrial accident and was obviously initiated for conditions unrelated to the accident of February 26, 1982.

9. With regard to the claim for further temporary total disability compensation benefits, I find that the claimant is entitled to no further temporary total disability compensation benefits in excess of that paid by the Employer/Carrier. I recognize that the claimant testified on January 4, 1983 that she has continued complaints of neck pain and hip pain and headaches; however, I have found, based on the medical testimony of the only *541Board Certified Orthopedic Specialist, Dr. Drucker, that she has no residual complaints that are related to the industrial accident. I also recognize that Dr. Carlson testified on January 4, 1983 that the claimant continued to suffer from a low back strain and sprain and subluxation of the sacroilliac and interference with the lower vertebra and that in his opinion she was disabled; however, I have rejected the medical opinion of this doctor in favor of the Board Certified Orthopedic Specialist, Dr. Drucker, and also observe that Dr. Carlson has seen the claimant for neck problems and headaches starting in June of 1980, and that those conditions were obviously unrelated to the injury of February 26, 1982. In view of the fact that I find the claimant has no residual impairment related to the industrial accident, (although I recognize she does suffer from a significant physical impairment as a result of her pre-ex-isting unrelated multiple sclerosis) and in considering her testimony that she made no attempts to return to work, I find that the evidence accepted by me is insufficient in support of a finding of further temporary total disability compensation benefits in addition to those previously paid.

10. In view of the fact that I find that the claimant has no permanent residual impairment as a result of her industrial accident, the claim for wage loss benefits and the claim for permanent and total disability compensation benefits are hereby denied.

11. As the claimant reached her maximum recovery by October 7, 1982 with no residual impairment related to the industrial accident the claim for further remedial medical care and attendance subsequent to that date is hereby denied.

12. I find that the claimant has obtained no benefits as a result of her claim which were not voluntarily paid by the carrier and the claim for costs, penalties, interest and attorneys fees is hereby denied.