ABC Liquors, Inc. v. Acree

Decision Date27 May 1997
Docket Number96-2291,Nos. 96-2212,s. 96-2212
Citation695 So.2d 813
Parties22 Fla. L. Weekly D1331 ABC LIQUORS, INC. and United Self Insured Services, Appellants, v. Evelyn ACREE, Appellee.
CourtFlorida District Court of Appeals

Charles R. Stepter, Jr. of Fishback, Dominick, Bennett, Stepter, Ardaman, Ahlers & Bonus, Orlando, for Appellants.

Douglas H. Glicken of Douglas H. Glicken, P.A., Orlando, for Appellee.

PER CURIAM.

ABC Liquors, Inc., and United Self Insured Services appeal an order of the judge of compensation claims denying their petition for modification of an order which awarded medical benefits (attendant care) to Evelyn Acree, a workers' compensation claimant. No. 96-2212. Appellants--Ms. Acree's employer some two decades ago and her former employer's servicing agent--contend that the judge of compensation claims erred in excluding evidence proffered to show that Ms. Acree was able to perform the activities of daily living without attendant care. In No. 96-2212, we reverse and remand for consideration of the proffered evidence at a new hearing. We also reverse the award of attorney's fees appealed separately in No. 96-2291. On appeal, the cases have been consolidated. 1

Recently clarifying the scope of section 440.09(4), Florida Statutes (1995), we left undiminished the JCC's responsibility to decide--if necessary to determine entitlement to benefits--whether a claimant is malingering. Horizons Painting v. Lessard, 688 So.2d 941 (Fla. 1st DCA 1997)(holding that, while collateral determinations of fraud must be made in another forum, the judge of compensation claims retains the fact-finder's traditional role in resolving credibility issues); E.H. v. Temporary Labor Source, Inc., 687 So.2d 884 (Fla. 1st DCA 1997)(holding inability to make a section 440.09(4) determination does not affect the ability of the judge of compensation claims to decide a claimant's credibility).

Need for Attendant Care Disputed

Ms. Acree was injured in industrial accidents in 1973. Fifteen years later, after a third laminectomy (with screw fixation), she continued to report intractable pain which nerve blocks did not alleviate. In 1993, a morphine pump was implanted in her back. Appellants maintain that she has since improved sufficiently so that her need for attendant care has been reduced or eliminated. They alleged below that her improved mobility allowed Ms. Acree to cook for herself, do laundry, dress herself, put on makeup and nail polish, drive a car, and take her own medication, among other things. 2

The evidence on which the JCC based his order denying the petition for modification included live testimony from Ms. Acree and Dr. Fred Cohen, and depositions and medical records from Dr. John Barsa and Dr. Remigio Palumbo, a cardiologist. Drs. Cohen and Barsa are algologists, physicians who specialize in pain management. Ms. Acree testified that she "need[ed] assistance with just about everything," specifically, that she needed assistance with walking, bathing, cooking, washing dishes, dressing, clipping and painting her nails, combing her hair, applying makeup, driving, and shopping.

Medical testimony conflicted. Based on his review of her medical records, Dr. Cohen testified that he did not think Ms. Acree needed attendant care at all, but that, in any event, no more than two hours a day would be required. Dr. Palumbo testified that Ms. Acree needed six to eight hours of attendant care a day seven days a week. He said that, even if he knew that she could consistently perform activities of daily living, he would not change his opinion "on the basis of what I see in this patient by examining her." On cross examination, however, Dr. Palumbo deferred to Dr. Barsa as to the level of attendant care Ms. Acree needed.

Dr. Barsa testified (on deposition) that he could not say whether Ms. Acree still needed twelve hours of attendant care a day, the amount appellants were required to provide at the time the hearing took place. 3 Asked if knowledge that Ms. Acree could cook, do laundry, and dress herself on a consistent basis for weeks at a time would affect his opinion as to the amount of attendant care she needed, Dr. Barsa answered:

[I]f she can go on for three months cook every day and drive every day and bathe herself every day and don't need any help whatsoever and you have documentation with that, obviously, I think a blooming idiot, not a doctor, to say, no, you don't need attendant care, but we're talking about a patient that has some pain, she may have good days and bad days ... I cannot be--unless I have--see some data.

If you're going to make me assume and go through that, you have to be very specific. Don't say week, weeks or months or two months. Give me some dates, give me some numbers, so that ... I can give you some answer....

Dr. Barsa said that if Ms. Acree could put her hose on and take them off daily for three months, apply her own makeup regularly for an extended period, and actively baby-sit for her grandchildren for at least nine months after the morphine pump was in place (taking the children out to dinner, to watch baseball games, and otherwise being "active" with them), he would change his medical opinion regarding the need for attendant care: He would request another evaluation, 4 and "obviously" he would request less than twelve hours.

When asked to assume that the person allegedly providing Ms. Acree attendant care from February to April 1993 was actually in the hospital dying at the time, and that Ms. Acree could and did perform activities of daily living for herself during this time period, Dr. Barsa agreed that these assumptions would change his opinion as to the need for attendant care. Asked to assume that another alleged caregiver was not even living in the same city as Ms. Acree, when he allegedly provided attendant care from July through December of 1993, and that Ms. Acree was able to and did perform activities of daily living for herself during this time period, Dr. Barsa replied (over claimant's objection that the question assumed facts not in evidence) that such hypothetical facts would change his opinion as to the medical necessity of eight to twelve hours of attendant care.

Proffered Evidence Excluded

Before the hearing began, the judge and counsel adverted to an earlier oral ruling concerning evidence offered only to prove misrepresentation, concealment, and fraud, but this ruling was not reduced to writing and no transcript of the ruling is part of the record. At hearing, appellants proffered witnesses who they said would testify to facts like those on which the hypothetical questions put to Dr. Barsa were predicated. 5 But the judge ruled Now, it can be argued that ....well, you need to know that the claimant said that she couldn't do so and so and we have witnesses that says (sic) that she can do so and so. Suppose we take one of those ....that the claimant says: "I can't get up and get my own medicine." And then that's proved to be absolutely false. What would I do with that information? I couldn't make a decision based on it other than to say go tell it to the doctor.... And you might say, well, how do we know what she needs if she's a liar or if the people that work for her are liars or there's a lot of fraud going on .... how do we know what she needs. Tell it to the doctors and let the doctor tell me what is needed relative to attendant care. Because the only alternative is for us to bog ourselves down here for hours and hours and possibly days trying a fraud case.

Perhaps the prehearing ruling was intended to exclude consideration of collateral matters concerning misrepresentation, concealment, and fraud that did not lead to an adjudication in another forum. See Lessard; Temporary Labor. But it is clear that a party may seek modification of an order entered by a judge of compensation claims on grounds that the order was procured by fraud. Oakdell, Inc. v. Gallardo, 505 So.2d 672, 674-675 (Fla. 1st DCA 1987). To the extent the judge of compensation claims ruled otherwise, we are obliged to reverse.

Issue for Judge of Compensation Claims

The exclusion of evidence relevant to the claimant's condition at the time of hearing or to her credibility, simply because it also tended to prove fraud, was error. The judge of...

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