Opinion
No. 93-1706.
November 18, 1994. Rehearing Denied December 19, 1994.
Appeal from the Judge of Compensation Claims, John J. Tomlinson.
Renee R. Pelzman of Pelzman Ruska, South Miami, for appellant.
Ileana Marcos of Marcos Rothman, Miami, for appellees.
The Claimant appeals a worker's compensation order denying claims for permanent total disability benefits, for wage loss benefits, and for an independent evaluation by a vocational rehabilitation counselor. Because we find that the 5% permanent impairment rating due to the work-related left knee injury established in a prior order is res judicata in the absence of grounds for modification of the order, we reverse the judge of compensation claims' finding in the order at issue that "none of claimant's left knee problems were the result of the accident of November 16, 1983." We also reverse the alternative finding that "no proper permanent total disability claim is before me for adjudication," in view of the fact that, although no formal claim is included in this record, the pretrial stipulation included a claim for permanent total disability. The order is otherwise affirmed, but the case is remanded to the judge of compensation claims for consideration of the applicability, if any, of the "deemed earning ability" provision, section 440.15(4)(b), Florida Statutes, in regard to the claim for wage loss benefits. See Ankeny v. Palm Beach County School Board, 643 So.2d 1127 (Fla. 1st DCA 1994). The judge may, in his discretion, receive additional evidence on this issue should that be found appropriate.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings. The motions for appellate attorney fees filed by the claimant and by the employer/carrier are both DENIED.
ERVIN and JOANOS, JJ., concur.