Opinion
No. AB-339.
March 8, 1982. Rehearing Denied April 7, 1982.
L. Barry Keyfetz, of Keyfetz Poses, Miami, for appellant.
H. George Kagan, of Miller, Hodges Kagan, Miami, for appellee.
Claimant seeks review of a workers' compensation order which we affirm except as to the denial of a witness fee and the further denial of "all claims . . . which could have been made. . . ."
The deputy refused to award as costs a fee for the testimony of claimant's doctor, reasoning that such a fee was unwarranted "since his testimony was submitted in support of claim for his bill which was denied." However, claimant did secure an award of temporary disability benefits, and while the doctor's testimony was propounded primarily in connection with the claim for payment of his medical bill the doctor did also testify regarding claimant's disability, the course of treatment furnished, and the causal etiology of claimant's condition. Such testimony was relevant to employer/carrier's general denial of the claim for temporary benefits. Since claimant prevailed on this issue, and the doctor's testimony was relevant thereto, a witness fee should have been awarded as costs pursuant to §§ 440.34(2) and 440.31, Florida Statutes, even though the deputy may not have relied on the witness's testimony. See Stich v. Independent Life Accident Insurance Co., 139 So.2d 398 (Fla. 1962).
Claimant initially presented a claim for wage-loss benefits pursuant to § 440.15(3)(b). During the course of the hearing the deputy expressly allowed claimant to withdraw this claim "without prejudice." In these circumstances the deputy may not preclude the resubmission of such a claim by denying "all claims . . . which could have been made. . . ."
The order appealed is affirmed in part and reversed in part, and the cause is remanded.
MILLS, J., concurs.
THOMPSON, J., dissents and concurs with opinion.
I would affirm the deputy commissioner's denial of a witness fee to Dr. Turke.
The testimony of Dr. Turke neither could nor did affect the issue of whether the claimant was entitled to additional temporary total disability (TTD) benefits. At or before the initial hearing held December 23, 1980, the parties stipulated that the claimant reached maximum medical improvement (MMI) on December 24, 1979. Therefore, when Dr. Turke testified at the second hearing on February 3, 1981, the issues as to the MMI date and the period for which TTD benefits were due had already been resolved by agreement of the parties.
Even if the parties had not previously resolved this issue by stipulation, there is substantial competent evidence to support the deputy's finding that Dr. Turke's testimony related solely to the proof of his bill, which bill had been denied as unauthorized. There were 11 pages of testimony by Dr. Turke and the testimony on only one of these pages could conceivably relate to the claimant's disability. Dr. Turke was asked: What kind of treatment had he furnished the claimant? Was the treatment related to the accident the claimant sustained? Did he actively treat the claimant from September 24 through September 28? Did he recommend that the claimant refrain from working during the period he treated the claimant? The doctor testified that his treatment consisted primarily of physiotherapy to the claimant's ankle and back. He answered "yes" to the remaining leading questions although his bill reflects that he treated the claimant through December 28, not September 28. Before a doctor is entitled to recover a bill for his services rendered to a claimant, the evidence must show: (1) that he treated the claimant for injuries received as a result of the industrial accident; (2) the period of time during which he treated claimant; and (3) that the curative treatment was given prior to MMI. The questions propounded to the doctor related solely to matters necessary to prove entitlement to payment of his bill. Dr. Turke was not asked if he had an opinion as to when the claimant reached MMI, whether the claimant sustained any permanent partial disability or any other questions relating to any issues pending before the deputy commissioner.