Court: District Court of Appeal of Florida; April 11, 1989; Florida; State Appellate Court
Teresa Mello appeals the dismissal of her claim for permanent total disability benefits, which the court affirms. Mello argues that there is insufficient evidence to support the deputy commissioner's findings that she did not timely report a second accident in April 1983 and that the job offered did not qualify as sheltered employment. The court emphasizes that the determination of factual questions by deputy commissioners is not to be disturbed if supported by competent, substantial evidence, regardless of conflicting evidence. Mello sustained a back injury in August 1980 and reached maximum medical improvement (MMI) by February 1981. She worked full-time until allegedly sustaining another back injury on April 7, 1983, during a slip and fall at K-Mart. However, records from her treating physician, Dr. Crist, do not indicate an injury from the April incident, noting only that her condition was unchanged. An independent examination by Dr. Boring in November 1983 revealed Mello's claim of the incident but lacked evidence that the employer was notified until Dr. Boring's report, received over seven months later. Furthermore, Mello did not file her claim for the April injury until November 1986, well beyond the 30-day notification requirement. The court concludes that the employer's lack of knowledge of the injury and any resulting prejudice from the delayed notification are critical factors in affirming the dismissal of Mello's claim.
The employer denied knowledge of the claimant's reported accident. In November 1983, the claimant indicated to Dr. Boring that she was unsure if she had reported the incident, yet testified in December 1987 that she had reported it, naming the store manager. Evidence supports the deputy's finding that the employer was unaware of the accident for over seven months and was prejudiced by the claimant's failure to report it. The claimant's first medical visit post-accident was on May 4, 1983, where she did not inform Dr. Crist of the April 7 incident, leading him to attribute her complaints to a prior accident in 1980. This lack of timely reporting hindered the employer's ability to conduct an investigation and provide necessary medical attention. The claimant filed for benefits on November 15, 1986, over three years after the incident, which is outside the two-year filing requirement under Section 440.19, Fla.Stat. Additionally, the deputy found that the claimant's refusal to accept sedentary work offered by the employer constituted a voluntary limitation of income, as the position was suitable given her limitations. The court affirmed the deputy’s conclusions, with judges BOOTH and THOMPSON concurring and ERVIN dissenting.
