Opinion
No. BK-311.
August 22, 1986.
Appeal from the Deputy Commissioner William M. Wieland.
Delia A. Doyle of Haas, Boehm, Brown, Rigdon, Seacrest Fischer, Daytona Beach, and Valerie A. Marshall of Haas, Boehm, Brown, Rigdon, Seacrest Fisher, Orlando, for appellants.
J. David Parrish of Hurt, Parrish Dalton, Orlando, and Bill McCabe of Shepherd, McCabe Cooley, Orlando, for appellee.
The employer/carrier (e/c) appeals an award by the deputy commissioner (dc) of rehabilitation benefits pursuant to Section 440.49, Florida Statutes. We affirm.
The e/c argues on appeal that it was not given the opportunity to evaluate the necessity and appropriateness of the proposed treatment program, or to select the rehabilitation provider. We decline to address these issues on the merits, in that we find from our review of the record that the e/c did not preserve the issues it now complains of, and, therefore, has waived such questions on appeal. Prestressed Systems v. Goff, 486 So.2d 1378, 1380 (Fla. 1st DCA 1986); Florida Medical Center v. Renzi, 464 So.2d 231, 232 (Fla. 1st DCA 1985); Sunland Hospital v. Garrett, 415 So.2d 783, 784-85 (Fla. 1st DCA 1982).
The record does not contain the arguments of counsel. The record is moreover silent as to why the motion to compel rehabilitation benefits was resisted by the e/c, although it appears from the questions directed by the e/c during cross-examination of the witnesses that the e/c opposed the motion on the basis that claimant had not suffered any permanent impairment, and therefore was not entitled to rehabilitation benefits under Section 440.49, Florida Statutes (1983). We refuse to accept the argument, that by simply opposing the motion for rehabilitation benefits, any legal theory in defense thereto is necessarily preserved for appellate review, despite the absence of such theory in the record below.
The appellant states in its reply brief that "discussions" between the dc and counsel for the appellant and appellee were held prior to the recording of the proceedings below. The e/c does not, however, disclose the nature of the discussions, or argue that such discussions should have been included in the record on appeal. Florida Rule of Appellate Procedure 9.200(e) places the responsibility on the appellant to ensure that the record is prepared and transmitted to this court. Starks v. Starks, 423 So.2d 452, 453 (Fla. 1st DCA 1982). Because the appellant could have attempted to supplement the record by stipulated statement pursuant to Rule 9.200(f), or by preparing a statement of the proceedings pursuant to 9.200(b)(3), it cannot now argue issues that it failed to include in the record transmitted to this court. See Nicholason v. Bryant, 468 So.2d 311 (Fla. 5th DCA 1985). Moreover, since the record before this court does not appear incomplete, we refuse to delay further the disposition of this cause by ordering appellant to supplement the record pursuant to Rule 9.200(f)(2).
The Committee Notes to Rule 9.200(f) state in part: "The rule is not intended to cure inadequacies in the record which result from the failure of a party to properly make a record during the proceedings in the lower tribunal. The purpose of the rule is to give the parties an opportunity to have the appellate proceedings decided on the record before the lower tribunal." (e.s.)
AFFIRMED.
SHIVERS, J., concurs.
THOMPSON, J., dissents with written opinion.
I dissent.
The employer/carrier (E/C) appeal an order directing the E/C to provide to claimant rehabilitation services under the direction of Statewide Rehabilitation, Inc. (Statewide). I would reverse.
Claimant sustained a compensable injury on June 15, 1984. On June 24, 1985 claimant's treating physician advised the carrier that the claimant had reached maximum medical improvement (MMI) with no permanent partial physical impairment, and that he could return to work without restrictions.
Sometime prior to July 18, 1985 claimant's attorney referred him to Statewide for a recommendation concerning vocational rehabilitation. Claimant was seen pursuant to that referral on July 18, 1985. On July 22, 1985, just four days after his interview with Statewide, the claimant returned to his treating physician and advised him he was unable to return to work as a carpenter. He told the doctor that he was unable to climb stairs, had increasing pain, and had had problems with his knee giving away. The doctor then advised the E/C and claimant's attorney by report of that same date that he believed the claimant was going to be unable to do the heavy work of a carpenter and that he should be evaluated and trained for a less physically demanding job. This report was not received by the claimant's attorney until at least five or six days after he had referred the claimant to Statewide and after claimant had been interviewed by Statewide. Neither the claimant nor his attorney had made any request for rehabilitation benefits.
Subsection 440.49(1)(a) provides:
When an employee has suffered an injury covered by this chapter and it appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. The employer or carrier, at its own expense, shall provide such injured employee with appropriate training and education for suitable gainful employment and may cooperate with federal and state agencies for vocational education and with any public or private agency cooperating with such federal and state agencies in the vocational rehabilitation of such injured employees. For purposes of this section only, "suitable gainful employment" means employment or self-employment which is reasonably attainable in light of the individual's age, education, previous occupation, and injury and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his average weekly earnings at the time of injury. If such services are not voluntarily offered or accepted, the Division of Workers' Compensation of the Department of Labor and Employment Security, upon application of the employee, employer, or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training, necessary and appropriate to restore the employee to suitable gainful employment. On receipt of such report, and after affording the parties an opportunity to be heard, the deputy commissioner may order that the service and treatment recommended in the report, or such other rehabilitation treatment or service deemed necessary, be provided at the expense of the employer or carrier.
There was a total failure by the claimant's attorney to comply with the statute prior to referring the claimant to Statewide. The E/C had no reason to believe that the injury would preclude the claimant from earning wages equal to the wages he earned prior to the injury and that claimant might therefore be entitled to rehabilitation services. On the contrary, at the time claimant's attorney referred him to Statewide the only medical evidence available to the E/C was that the claimant had reached MMI with no physical impairment and could return to his former employment. The statute also provides that if rehabilitation services are not voluntarily offered or accepted after being offered then the Division of Workers' Compensation upon application of the employee, employer, or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for evaluation of the practicality of, the need for, and the kind of service, treatment, or training necessary and appropriate to restore the employee to gainful employment. The first notice that the E/C had that the claimant desired rehabilitation benefits came when a motion to compel rehabilitation was filed by the claimant's attorney on August 30, 1985, after Statewide had completed its initial interview and tests, and had issued a report with recommendations for vocational Individualized Written Rehabilitation Plan.
This case is not controlled by Viking Sprinkler Co. v. Thomas, 413 So.2d 816 (Fla. 1st DCA 1982). Viking merely held that the E/C could not select the vocation or occupation for which the claimant would be retrained, and that the E/C did not have an absolute right to select the rehabilitation provider. Even a casual reading of the statute reveals that such a conclusion is correct. The statute provides that the E/C shall offer to provide rehabilitation services through a rehabilitation provider when the need is perceived. If the E/C fails to offer the rehabilitation services, or if the services offered by the E/C are not voluntarily accepted, then either party may make application for a hearing to determine what rehabilitation services shall be rendered and who shall render them.
This case is controlled by City of Miami v. Simpson, 459 So.2d 326 (Fla. 1st DCA 1984), in which this court held that the deputy could not properly require the City to pay for a rehabilitation program which the claimant Simpson had embarked upon before informing the City of any need for or interest in such a program. In Simpson neither the claimant nor his attorney mentioned anything regarding rehabilitation to the City until after the claimant had begun rehabilitation and had incurred substantial expense therewith. The court expressly noted that the claimant's injury was not so severe that a reasonable employer would have known that the injured employee would likely be precluded from earning amounts comparable to his preinjury wage. In the instant case the claimant was referred to Statewide at a time when the only medical information available to the E/C was that the claimant had reached MMI without physical impairment and could return to his former employment. The E/C, therefore, had no reason to believe that the claimant would likely be precluded from earning amounts comparable to his preinjury wage. As in Simpson, the claimant in this case had already obtained rehabilitation services before any demand for rehabilitation benefits or request for payment for rehabilitation services was made. See also Visiting Nurses Association v. Teel, 443 So.2d 318 (Fla. 1st DCA 1983).
The majority decline to address the issue of whether the deputy commissioner erred in ordering that the E/C provide the claimant rehabilitation with Statewide, asserting that there is nothing in the record that reflects preservation of the issue. The majority's position is incorrect. This is not an appeal of a compensation order entered after hearing on a claim for benefits. Instead, this appeal involves an order issued after hearing on a motion to compel rehabilitation which requests the deputy commissioner "to enter an order requiring the employer/carrier to provide rehabilitation with Statewide Rehabilitation, Inc., pursuant to the attached Individualized Written Rehabilitation Plan (IWRP). . . ." The notice of hearing was made a part of the motion to compel rehabilitation. The order entered and appealed provides in part:
The employer/carrier shall provide the claimant rehabilitation under the direction of Statewide Rehabilitation, Inc. and Statewide Rehabilitation, Inc. is hereby authorized to carry out the vocational objectives as set out in their IWRP filed with the aforementioned motion to compel rehabilitation. . . .
The sole issue at the hearing was whether the E/C should be compelled to provide rehabilitation by Statewide, and the sole relief required by the order was that the E/C provide the claimant rehabilitation by Statewide. The E/C opposed the motion to compel them to provide the claimant with rehabilitation by Statewide, and their contest of the issue was the sole reason the hearing was held. The issue was necessarily preserved for appeal.
I would follow the established applicable case law and reverse the order directing the E/C to provide the claimant with rehabilitation by Statewide.