Lawrence v. O.B. Cannon & Sons, Inc.

579 So. 2d 812 | Fla. Dist. Ct. App. | 1991

Lead Opinion

ALLEN, Judge.

The claimant in this workers’ compensation case appeals a final order of the judge of compensation claims denying his claim for wage loss benefits. Because we find competent substantial evidence exists in the record to support the judge’s denial of benefits, we affirm.

The claimant first injured his. back in a work-related accident in 1971, which accident necessitated a laminectomy and a dis-kectomy. In 1981, the claimant injured his back again, this time while working for O.B. Cannon. The claimant’s second back injury also required surgery for removal of disc material and scar tissue. He settled his resulting claim for compensation benefits against the appellee, Aetna Casualty & Surety Company, the carrier on risk at the time of his 1981 accident. In June of 1986, the claimant went to work for a construction company as a painter and sander, work which required high climbing and some lifting. He performed the work without apparent difficulty for approximately one month until he was laid off. He then resumed work as an industrial painter for O.B. Cannon on September 25, 1986. Just a few days later the claimant suffered another work-related back injury, his second while in the employ of O.B. Cannon. At the time of this 1986 injury, the employer was insured by the appellee, Liberty Mutual Insurance Company.

At a hearing in which all the parties to this appeal participated, the claimant sought payment of medical bills and authorization for future remedial care. He also sought catastrophic loss benefits and wage loss benefits from Liberty Mutual. The judge determined that the claimant’s 1986 injury caused only a temporary aggravation of his preexisting back condition, that the aggravation had completely subsided by June 23,1988, and that the claimant was in need of further medical care for his back and bladder conditions, which were causally related to his 1981 industrial accident. Upon these findings, the judge concluded that Aetna was liable for all treatment rendered after June 23, 1988, and all future necessary treatment, and Liberty Mutual was liable for treatment rendered after the 1986 injury until June 23, 1988. The judge implicitly denied the claimant’s request for catastrophic loss and wage loss benefits from Liberty Mutual, because of his conclusion that the claimant’s 1986 injury had no lasting effect upon his condition.

The claimant and Aetna argue on appeal that the evidence shows that the claimant’s 1986 injury caused a permanent impairment, thus entitling claimant to an award of wage loss benefits from Liberty Mutual, and requiring a remand for a more appropriate division of the responsibility for payment of medical costs between the two carriers. Liberty Mutual responds by identifying the considerable evidence in the record which supports the judge’s findings. First, it should be noted that the claimant’s testimony of new and different pains following his 1986 injury was largely discredited by his admission on cross-examination that he had made all of the same complaints of pain at various times prior to his 1986 fall. More importantly, all three of the doctors who testified about the claimant’s back condition opined that his 1986 injury only temporarily aggravated his preexisting, serious back problems.

Dr. Scales, a board certified neurologist, testified that a myelogram taken shortly after the claimant’s 1986 fall revealed preexisting arachnoiditis, inflammation of a membrane covering the spinal cord, but no fracture or other instability that might be caused by a fall. Scales opined that the claimant’s 1986 fall could be expected to cause only a temporary aggravation of his condition, which should have subsided in about one month. Dr. Eddings, a board certified neurologist and orthopedist, examined the claimant about one week before his 1986 injury and again on June 23, 1988, about 18 months later. Based upon his examination and the history that the claimant provided about the fall, Eddings concluded that it did no permanent damage to claimant’s back, though it certainly temporarily increased his pain. When asked about the claimant’s date of maximum medical improvement, Eddings responded that he had never noted any improvement in the claimant’s condition, nor did he expect any.¹ Dr. Wirth, a board certified neurosurgeon, agreed that the aggravation of the claimant’s arachnoiditis caused by the 1986 fall, would have been only temporary. The fact that the claimant has required the use of painkilling narcotics since his 1986 injury which he never required before, did not alter the opinions of Drs. Scales or Eddings about the temporary nature of the aggravation caused by that fall; both doctors noting the habituating characteristics of such medication.

In view of all of this supporting testimony, it cannot be said that the judge erred in reaching the conclusions that he did. It is not the role of this court to search the record for evidence which supports a claim for benefits disallowed by the judge of compensation claims; rather, the court is bound to affirm his decision when, as here, it has a record basis. See Cuccarollo v. Gulf Coast Bldg. Contractors, 500 So.2d 547 (Fla. 1st DCA 1986), quoting, Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1988). The claimant’s final contention that a remand is necessary because the judge’s reasons for rejecting the testimony of Drs. Eddings and Wirth are not explained in his order or apparent from the record, is without merit because the record reflects that the doctors’ testimony was consistent with, not contrary to, the opinion of Dr. Scales, upon which the judge expressly relied.

Accordingly, we affirm the denial of the claimant’s request for wage loss benefits from Liberty Mutual.

WOLF, J., concurs. ERVIN, J., dissents with written opinion.

1 . This testimony supports the judge’s implicit finding that the claimant reached maximum medical improvement after the 1986 injury on June 23, 1988. Though the judge could have made specific reference to Eddings' testimony in his order, it cannot be said that the order is "so deficient as to impede review when measured against the record facts.” Curry v. Miami Dolphins, Ltd., 522 So.2d 1010, 1011 (Fla. 1st DCA 1988).

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Dissenting Opinion

ERVIN, Judge,

dissenting.

I respectfully dissent. If this case involved only the issue of whether there was sufficient medical evidence to support the judge’s determination that the September 29, 1986 industrial accident caused merely a temporary aggravation of the claimant’s preexisting back condition, I would have no difficulty in affirming. The issue before us, however, involves far more. The case turns on the legal effect of other evidence which indicates that the claimant had completely recovered from both his 1971 and 1981 injuries, in that in 1986 he worked with a construction company performing manual tasks without apparent difficulty for approximately one month and was terminated for reasons unrelated to his preexisting condition; and he resumed work in September 1986 with his former employer and four days thereafter suffered his final injury. Because the judge’s order did not address what effect, if any, the evidence relating to claimant’s employment activities following his 1981 injury may have had in his assessment that claimant’s 1986 injury was merely a recurrence of the former injury, I would remand the case to the judge with directions that he clarify his findings in that regard.

I think the rule is reasonably clear, notwithstanding the existence of medical testimony suggesting that an employee’s injury amounts to nothing more than a re-injury or recurrence of an earlier injury, that an employee who, at the time of a later injury, had been suffering from a prior condition which did not disable him from carrying out gainful employment, may nonetheless recover workers’ compensation benefits caused by a subsequent, compensable industrial injury from the carrier then at risk. Sunland Center at Miami v. Rudolph, 521 So.2d 132, 134 (Fla. 1st DCA 1988); Vanguard Pest Control v. Turner, 501 So.2d 66, 67 (Fla. 1st DCA 1987); Escambia County Council on Aging v. Goldsmith, 500 So.2d 626, 635 (Fla. 1st DCA 1986); Miami-Dade Water & Sewer Auth. v. Leech, 447 So.2d 979, 981 (Fla. 1st DCA 1984); Hayward Trucking, Inc. v. Aetna Ins. Co., 445 So.2d 385, 386-87 (Fla. 1st DCA 1984); Barile Excavation & Pipeline Sewer Improvement v. Hough, 417 So.2d 843, 844 (Fla. 1st DCA 1982); Sarasota County v. Reichert, 413 So.2d 163, 163 (Fla. 1st DCA 1982); Caruso v. Crown Liquors, Inc., 379 So.2d 1317, 1318 (Fla. 1st DCA 1980).

Although the above rule is most frequently applied to preclude the apportionment of permanent benefits in disputes between claimants and employers/carriers (E/Cs), it has also been applied to preclude the placement of liability on the first carrier for the payment of medical expenses and temporary compensation benefits between claimants and e/cs, e.g., Miami-Dade Water & Sewer Authority; Structural Systems, Inc. v. Worthen, 463 So.2d 502 (Fla. 1st DCA 1985), disavowed on other grounds, City of Fernandina Beach v. School Bd. of Nassau County, 488 So.2d 871 (Fla. 1st DCA 1986), and to preclude, in cases involving successive injuries with different carriers at risk, a division of liability between the carriers, pursuant to Section 440.42(3), Florida Statutes. See, Hayward Trucking, Inc.

Thus, the carrier providing coverage at the time of the final accident may be held solely liable on evidence showing that following an earlier injury, an employee was able to return to work and carry out the same general duties he or she had performed before the prior injury. The facts in Structural Systems, Inc. are particularly instructive. There the employee suffered three industrial accidents, two in 1980 and the third in 1983. Similar to the claimant at bar,² Worthen entered into a washout settlement of his claim; however, unlike the facts at bar, the settlement related to the claim arising from the final accident. Notwithstanding medical testimony, on which the deputy relied, stating that claimant would not have suffered the 1983 accident if he had not had the underlying pathology stemming from the earlier accidents, and that he was predisposed to the final injury “100%,” the majority reversed the deputy’s order which had held the carrier at risk at the time of the earlier accidents solely liable for temporary total disability (TTD) benefits and past and future remedial medical treatment resulting from the 1983 injury. In its decision the majority observed that the claimant had lost only a few days’ work following his earlier accidents; that all medical bills for treatment therefor had been paid, and significantly: “At the time of the subsequent accident and injury the claimant was able to work and did not require any medical treatment.” Structural Sys., Inc., 463 So.2d at 504. The court thereupon concluded that were it not for the washout settlement with the subsequent carrier, any TTD and remedial medical benefits would be solely its responsibility.³

In the case at bar, although claimant was unable to work for a substantial amount of time between his 1981 and 1986 injuries, nonetheless, in June 1986, during his employment with Williams Construction Company doing painting and sanding, claimant’s job activities included climbing, lifting, and using a hand grinder, which he performed without apparent difficulty while working twelve hours a day, seven days a week. This evidence furnishes strong support for the conclusion that the claimant was not experiencing any disability caused by the earlier injury at the time of the final accident, as well as the conclusion that claimant was not then suffering from any disability attributable to the preexisting condition which was independent of the aggravating effect of the subsequent accident. If neither circumstance exists, any resulting liability for compensation and medical benefits should be solely the responsibility of the carrier having coverage at the time of the subsequent accident. Evans v. Florida Indus. Comm’n, 196 So.2d 748 (Fla.1967).

In my opinion, the judge below and the majority have incorrectly focused solely upon medical evidence in concluding that the employee suffered only a recurrence of his earlier injury, whereas their inquiry should have been whether claimant remained disabled at the time of the subsequent injury. Because disability is defined as an “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of injury,” Section 440.02(9), Florida Statutes, the judge should have taken into consideration other factors, including the claimant’s capacity at the time of the later accident to engage in gainful employment. Escambia County Council on Aging v. Goldsmith, 500 So.2d 626, 635 (Fla. 1st DCA 1986).

Because the judge appears to have relied entirely on medical testimony in reaching his decision, I consider that critical evidence in the record was either overlooked or ignored. Cf. Allied Parcel Delivery v. Dixon, 466 So.2d 439 (Fla. 1st DCA 1985); Poorman v. Muncy & Bartle Painting, 433 So.2d 1371 (Fla. 1st DCA 1983). In my judgment the case should be remanded to the judge for him to determine, after considering claimant’s employment history following his 1981 injury, whether appellant was capable of engaging in gainful employment at the time he suffered his 1986 injury-

If the judge concludes that claimant did have such capacity and was therefore not disabled, he should next consider whether claimant has as yet reached maximum medical improvement (MMI), and, if so, whether his condition is such as to entitle him to permanent compensation benefits. If claimant has not yet reached MMI, his entitlement to temporary compensation and medical benefits should then be established. The responsibility for payment of same under either circumstance should be placed solely on Liberty Mutual Insurance Company (carrier number two).

If, on the other hand, the judge determines from all of the evidence that claimant’s disability from the prior injury continued at the time of his 1986 injury, he should then decide whether the two injuries combined to produce an overall greater disability than that preexisting the 1986 injury. Due to the washout agreement with carrier number one, such carrier would be absolved from any legal responsibility for additional compensation benefits. But its responsibility for the payment of future medical benefits may be affected by a proper allocation, if this issue can be resolved. Additionally, if claimant on remand is determined to have achieved MMI, with, as stated, a greater disability by reason of the second accident, carrier number two’s responsibility for payment of compensation benefits, by applying the Evans principles of apportionment, should, if possible, be ascertained. It should be noted that section 440.42(3) authorizes a judge to allocate responsibility and order reimbursement between multiple carriers, and that allocation should be based on the extent to which each accident contributes to any resulting disability or need for medical care. Atkins Constr. Co. v. Wilson, 509 So.2d 1185 (Fla. 1st DCA 1987).

2 . In the case below, the evidence reflects that a judge of compensation claims approved, before claimant's final injury, a settlement agreement in which claimant had agreed, in exchange for the receipt of $60,000 in lump-sum compensation benefits, to release Aetna Life and Casualty (carrier number one) from any further liability for future payment of compensation benefits resulting from his 1981 injury. Based upon this agreement, the judge in the case at bar, in finding that claimant’s 1986 injury was only a recurrence of his 1981 injury, determined that claimant was not entitled to any additional compensation benefits.

3 . As earlier indicated, the majority's opinion in Structural Systems, Inc., was subsequently disavowed in part on other grounds. The disavowal related to certain dicta in the majority's opinion, unnecessary to the holding, which indicated that Section 440.15(5), Florida Statutes (1979), bars apportionment of TTD and medical benefits between two carriers. City of Fernandina Beach v. School Bd. of Nassau County, 488 So.2d 871, 872 (Fla. 1st DCA 1986).