428 So. 2d 338 | Fla. Dist. Ct. App. | 1983
Lead Opinion
The employer/carrier (E/C) appeal the order awarding claimant temporary total disability (TTD) and wage loss benefits. We reverse.
Claimant suffered a compensable injury on August 13, 1979. On January 31, 1980, claimant’s treating physician, Dr. Kanell, opined that claimant had reached MMI and discharged him without any limitations on his physical activities. During May of 1980, claimant fell while carrying his son on his shoulder and reaggravated his back condition. At that time, claimant returned to his treating physician for further treatment and also sought treatment from two other physicians, Dr. May and Dr. Wallquist. Thereafter, claimant’s treating physician opined that, based on claimant’s subjective complaints, claimant had sustained a 3-5% permanent disability as a result of his com-pensable injury. Claimant then filed a claim seeking TTD and wage loss benefits. The deputy commissioner (DC) awarded claimant TTD benefits from February 1, 1980 through June 30, 1980, less one month that claimant had worked during that period. The DC also awarded claimant TTD benefits for the period between March 12, 1981, and April 13, 1981. In addition, the DC awarded claimant wage loss benefits from June 30,1980, through the date of the order. Since the date of claimant’s compen-sable injury, claimant has held two jobs. With the exception of a one month period between March and April of 1981, claimant has worked as a custodian since November 7, 1980. Prior to his job as a custodian, claimant’s only other period of employment since the date of his compensable injury, was a one month period during which time he was employed as a gas attendant.
On appeal, the E/C raises several issues, but we find it necessary to address only two. Specifically, we address the E/C’s contentions that the awards of TTD and wage loss benefits should be reversed because they are not supported by competent and substantial evidence in the record.
Turning first to the awards of TTD benefits, we find that the awards must be reversed for lack of competent, substantial evidence in the record to support them. Claimant’s initial treating physician released him to return to work without any limitations on January 31,1980. Over three months later, after claimant had fallen and reinjured his back, he returned to his treating physician for further treatment. Despite the fact that claimant failed to elicit any testimony from the treating physician as to whether he was TTD at that time, claimant contends that we should affirm the award of TTD benefits from February 1, 1980 through June 30, 1980, based on the testimony from Dr. May, who did not even examine claimant until June 30, 1980. We disagree.
Even assuming that Dr. May was competent to render an opinion concerning the question of whether claimant was TTD prior to June 30, 1980, his testimony, as reflected in the record, would be insufficient to support a finding of TTD from February 1, 1980, to June 30, 1980. Although Dr. May responded affirmatively to claimant’s question concerning whether claimant was TTD from the date of the accident through August 15, 1980, the date Dr. May discharged claimant, Dr. May immediately qualified, if not completely contradicted, this statement by stating that:
I examined this gentleman 6/30/80 for an injury he had sustained 8/13/79; okay? I do not have or cannot have any opinion from 1979, from August of 1979 until June of 1980. Assuming that his condition at the time was comparable to the condition he had when I examined him 6/30/80,1 do not feel that he was able to return to work.
Even construing this testimony in the light most favorable to claimant, we believe that it could support a finding of TTD during the period in question only if claimant’s condition during that period was in fact the same as it was on June 30, 1980. The evidence, however, indicates that claimant’s condition on June 30, 1980, was not the same as it was during the preceding five months. This finding is based on the fact that claimant’s initial treating physician re
We must also reverse the award of TTD benefits for the period between March 12, 1981, and April 13, 1981, for similar reasons. Although Dr. Wallquist opined that claimant was TTD during this period, this opinion lacks the proper factual foundation to support a finding of TTD during that period. Dr. Wallquist was unaware of claimant’s second injury and, therefore, his opinion was based on an incomplete history of claimant’s condition. Moreover, Dr. Wallquist’s testimony is insufficient to support a finding of TTD because he failed to express an opinion as to whether claimant’s disability during this period was causally related to claimant’s industrial accident. For these reasons, we reverse the award of TTD benefits from March 12, 1981, to April 13, 1981.
We now address the award of wage loss benefits. Wage loss benefits are not awardable unless the injured employee has suffered a permanent impairment which is “scientifically demonstrable” to the deputy by his own observations or which is based on the AMA Guides. Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982); Mathis v. Kelly Construction Co., 417 So.2d 740 (Fla. 1st DCA 1982); and section 440.15(3)(a)3, Fla.Stat. (1979). Claimant contends that the testimony of his initial treating physician supports a finding of permanent impairment and, thus, an award of wage loss benefits. We cannot agree.
Although two physicians, including claimant’s initial treating physician, testified that claimant had sustained a permanent impairment, none of this testimony was based on the AMA Guides or objective observations. Claimant’s first treating physician testified that claimant did not suffer any permanent physical impairment based on “scientifically or medically demonstrable findings,” and that his opinion as to claimant’s permanent physical impairment was based on claimant’s subjective complaints. Dr. May also testified that claimant had not sustained any permanent impairment which was scientifically demonstrable. Based on the absence of any competent medical testimony to indicate that claimant had sustained a permanent impairment based on the AMA Guides or other scientifically demonstrable findings, we must reverse the award of wage loss benefits.
REVERSED.
Dissenting Opinion
dissenting.
In my opinion there is adequate evidence in the record, properly viewed under the presumption of correctness that attends the deputy’s order in such a case as this, to support the order granting Edmond temporary total disability benefits from February through June 1980, except for a month in which Edmond worked at a filling station, and in March and April 1981.
What my colleagues say about the testimony of Drs. May and Wallquist is of course true. The opinions of those physicians perhaps would not persuade me, if I were the trier of facts. But it is also true that (a) Dr. May’s qualification of his opinion testimony simply made explicit what is obvious in all medical opinion testimony, that the physician assumes the truth of the history given him by the patient, in this case reflected in Dr. May’s written report (R. 237) that was attached to his deposition without objection; (b) Dr. Wallquist’s deposition testimony and his attached report (R. 209) adequately express or imply a causal relationship between the industrial accident and Edmond’s condition; (c) the carrier’s lawyer pointedly did not ask Dr. Wallquist
Questions such as these are not peculiar to workers’ compensation litigation; they commonly arise, or are potential issues, in virtually every personal injury case tried in the circuit courts. Yet I doubt that I have seen, in nearly eight years on this bench, more than two or three appeals from circuit court judgments on such issues as these. That is because, in conventional litigation, such issues are brought to the attention of the trial judge and are properly resolved; because such questions about physicians’ opinions are deemed to have been resolved, as a matter of weight not competency, by the jury’s verdict; and because it does not occur to conventional litigants to spend their money and the State’s resources appealing such questions, and it does not occur to us to reward those who do by reversing.
We therefore give to workers’ compensation appeals a scope of review unparalleled in our other work, amounting to a second trial on issues not made, preserved, and pressed at the first trial. This depreciates the orders of the deputies, rewards casual presentations by lawyers below, and encourages more appeals of the same kind. I would give the deputy’s orders the same deference we give to the verdicts of juries and to the judgments of circuit judges in nonjury trials, and so would treat the issues pertaining to the Drs. May and Wallquist testimony as subsumed in and foreclosed by the deputy’s findings.
Nat Harrison Associates, Inc. v. Byrd, 256 So.2d 50, 53 (Fla. 4th DCA 1971):
[D]eficiencies in a factual predicate submitted to an expert as a basis for an expert opinion, normally relate to the weight and not the admissibility of the opinion [Citations omitted.] Where, however, the factual predicate submitted to the expert witness in the hypothetical question omits a fact which is so obviously necessary to the formation of an opinion that the trial judge may take note of the omission on the basis of his common knowledge, an objection founded on the inadequacy of the predicate may be sustained. [Citation omitted.]