Christopher v. Dobbs Houses, Inc.

WENTWORTH, Judge.

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.