B & L SERVICES, INC. v. COACH USA, No. 1D00-1570.

CourtCourt of Appeal of Florida (US)
Writing for the CourtLEWIS, J.
Citation791 So.2d 1138
PartiesB & L SERVICES, INC., d/b/a Gray Line of Orlando and Claims Control, Inc., Employer/Carrier # 1, Appellants/Cross-Appellees, v. COACH USA f/k/a Gray Line of Orlando and Cigna, Employer/Carrier # 2, Appellee, and Rafael Guzman, Claimant, Appellee/Cross-Appellant.
Decision Date18 June 2001
Docket NumberNo. 1D00-1570.

791 So.2d 1138

B & L SERVICES, INC., d/b/a Gray Line of Orlando and Claims Control, Inc., Employer/Carrier # 1, Appellants/Cross-Appellees,
v.
COACH USA f/k/a Gray Line of Orlando and Cigna, Employer/Carrier # 2, Appellee, and
Rafael Guzman, Claimant, Appellee/Cross-Appellant

No. 1D00-1570.

District Court of Appeal of Florida, First District.

June 18, 2001.

Rehearing Denied July 18, 2001.


791 So.2d 1140
Robert L. Dietz and C. Douglas Green of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Appellant/Cross-Appellee

Jamey S. Rodgers of McDonald and Rodgers, P.A., Altamonte Springs for Appellee/Cross-Appellee.

Neal P. Pitts and Matthew D. Valdes of Neal P. Pitts, P.A., Orlando, for Appellee/Cross-Appellant.

LEWIS, J.

B & L Services, Inc., employer # 1, appeals an order from the Judge of Compensation Claims (JCC) attributing 100% responsibility to it for Rafael Guzman's carpal tunnel condition. Rafael Guzman, the claimant, cross-appeals the JCC's assignment of an overall 2% impairment rating and its failure to award penalties for the temporary benefits due but unpaid. We affirm the JCC's finding that employer # l's work activities were the major contributing cause to the claimant's disability and need for treatment. Competent, substantial evidence exists in the record to support this finding. We also affirm the JCC's assignment of an overall 2% impairment rating. However, we reverse on the issue of reimbursement/contribution and attorney's fees because the JCC misapplied the law on this issue. Furthermore, the JCC erred in failing to make any findings of fact regarding when the obligation to pay temporary benefits became due. Therefore, we remand with directions for the JCC to make the appropriate findings and to determine whether statutory penalties should be assessed.

Background

In February 1994, Rafael Guzman, the claimant, began working for employer # 1 in its auto body repair shop. During his three years with employer # 1, he used various vibrating tools such as sanders, drills and grinders. In April 1996, the claimant began to experience numbness in his hands and wrists, particularly his right hand. He did not report his numbness and pain to employer # 1 until May 14, 1997. The day after, on May 15, 1997, employer # 1 sold the company to Coach USA, employer # 2.

On May 21, 1997, Dr. Barnard examined the claimant and diagnosed the claimant with bilateral carpal tunnel syndrome related to his work as an auto body repairman. On July 25, 1997, Dr. Barnard placed the claimant at MMI with a zero percent impairment rating because the claimant stated that he was not having any appreciable numbness.

After reporting his numbness on May 14, 1997, the claimant voluntarily began performing light duty work. He still dropped items and was never able to lift a gallon of milk with either hand; but he was not experiencing the same degree of numbness as before. Around July 1997, the claimant's two co-workers who assisted him in the body shop quit. As employer # 2 did not hire anyone to replace the assistants, the claimant was required to perform all the repair duties.

The claimant continued to work by himself in the body shop until October 28, 1997. He testified that he had to quit because he could no longer handle the numbness and pain in his hands and wrists. After he quit, the claimant testified that within three to four months the numbness and pain lessened. The claimant claimed October 28, 1997, as the date of his second injury.

791 So.2d 1141
On November 10, 1997, Dr. Barnard recommended carpal tunnel release surgery. Employer/carrier # 1 (E/C # 1) initially denied the surgery. It filed a Notice of Denial for medical treatment and surgery, on September 21, 1999, stating that the need for treatment and surgery was attributed to the work activities of employer # 2. The claimant went to Dr. Gupta, on January 26, 1998, for an independent medical examination arranged by E/C # 1. Dr. Gupta also diagnosed the claimant with bilateral carpal tunnel syndrome and recommended surgery. In his deposition, Dr. Gupta opined that the claimant's condition developed under his first employment and it was aggravated further by the heavy workload under his second employment

On October 1, 1998, E/C # 1 voluntarily authorized the surgery with Dr. Barnard. Dr. Barnard performed the surgery and released the claimant to light duty employment on November 3, 1998. He placed the claimant at MMI on December 8, 1998 and gave the claimant an overall whole body impairment rating of 11%. On April 22, 1999, Dr. Shure conducted an independent medical examination of the claimant for E/C # 2. Dr. Shure stated that the claimant developed carpal tunnel syndrome over the three-year period with employer # 1. He attributed approximately 90% of the responsibility to employer # 1 and 10% to employer # 2 based on the length of time the claimant was employed with each employer. Dr. Shure gave the claimant a 2% impairment rating.

The JCC held a merits hearing on the claimant's petition for benefits on May 18, 1999. The issues presented to the JCC were determining responsibility between the employers for the claimant's unpaid temporary total disability benefits from October 28, 1997 through November 3, 1998 and determining whether E/C # 2 should reimburse E/C # 1 or contribute for the surgery, medical treatment, and indemnity benefits. E/C # 1 has paid impairment benefits to the claimant since October 1, 1998. E/C # 1 argued that the major contributing cause of the claimant's injury was the additional employment with employer # 2, and that E/C # 2 should contribute its portion for the claimant's benefits. In addition, the claimant sought a determination of his impairment rating and requested penalties, interest and attorney's fees and costs.

The JCC continued the hearing to allow an Expert Medical Advisor (EMA) to determine the relative responsibility of each employer. Dr. White was appointed and examined the claimant on September 9, 1999. In his deposition, Dr. White stated that the claimant would have eventually required surgery whether he continued doing auto body repair work or not. He further testified that the major contributing cause of the claimant's surgery, disability and need for treatment was the work performed for employer # 1. He opined that the responsibility should be allocated 90% to employer # 1 and 10% to employer # 2 based on the length of employment with each employer. He also gave the claimant a 2% impairment rating.

On February 14, 2000, the JCC conducted the second merits hearing. The JCC found that the claimant continued to suffer symptoms throughout the entire period, despite Dr. Barnard's zero percent impairment rating. The JCC attributed 100% responsibility to E/C # 1 because the evidence did not support the finding that the claimant's second employment was the major contributing cause of the need for surgery. E/C # 1 was ordered to pay temporary total disability benefits and temporary partial disability benefits. E/C # 1 also was responsible for the claimant's medical compensation and rehabilitative benefits. The JCC also found the claimant's

791 So.2d 1142
overall impairment rating was 2% based on Drs. Shure's and White's testimonies. The JCC also awarded reasonable attorney's fees to the claimant

Major Contributing Cause

Competent, substantial evidence exists in the record to support the JCC's finding that employer # l's employment was the major contributing cause of the claimant's carpal tunnel condition. Therefore, the claimant's condition is compensable. Accordingly, we affirm on this issue.

Reimbursement/Contribution1

While employment with employer # 1 was the major contributing cause, we hold that the JCC erred in using a major contributing cause standard for determining whether employer # 1 was entitled to contribution from employer # 2. The JCC found that "the employment with Employer/Carrier # 2 did result in an acceleration of claimant's need for surgery, but that the need for surgery was inevitable and that the acceleration did not rise to the level of major contributing cause so as to place a percentage of responsibility for the need for treatment and disability on Employer/Carrier # 2." The JCC appears to have confused the standard for determining compensability with the standard for determining responsibility.

Section 440.42(3), Florida Statutes (1995), provides the procedure for resolving disputes between carriers regarding responsibility for compensation. It provides in pertinent part: "When there is any controversy as to which of two or more carriers is liable for the discharge of the obligations and duties of one or more employers with respect to a claim for compensation, remedial treatment, or other benefits under this chapter, the judge of compensation claims shall have jurisdiction to adjudicate such controversy." Prior to 1994, this Court held that the JCC must consider the actual extent to which each accident has contributed to a compensable disability in determining contribution between multiple carriers under section 440.42. See Copeland Steel Erectors v. McCollom, 587 So.2d 658 (Fla. 1st DCA 1991); Standard Fire Ins. Co. v. U-Haul Co., 551 So.2d 580 (Fla. 1st DCA 1989); Sauer Indus. Contracting, Inc. v. Ditch, 547 So.2d 276 (Fla. 1st DCA 1989).

In 1994, the Florida legislature substantially amended the workers' compensation laws. One of these amendments included a new burden of proof standard for a claimant to prove compensability: major contributing cause. See § 440.09, Fla. Stat. (1995). However, the legislature did not include section 440.42 in its amendments. See Ch. 93-415, Laws of Fla. The question on appeal in this case is whether the 1994 amendments changed the standard for determining contribution under section 440.42(3) to a major contributing cause standard.

Where the legislature fails to make substantive changes to the pertinent statutory language, it...

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