Carson v. Gaineswood Condominiums, 87-1236

• Decision Date: 13 September 1988
• Docket Number: No. 87-1236,87-1236
• Parties: Michael J. CARSON, Appellant, v. GAINESWOOD CONDOMINIUMS, et al. and State Farm Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 28

532 So.2d 28

Michael J. CARSON, Appellant, v. GAINESWOOD CONDOMINIUMS, et al. and State Farm Insurance Company, Appellees.

No. 87-1236.

District Court of Appeal of Florida,

First District.

Sept. 13, 1988.

Anthony J. Beisler, III, P.A., Fort Lauderdale, for appellant.

Jack A. Langdon of Langdon & McCarty, P.A., Gainesville, for appellees.

JOANOS, Judge.

Michael J. Carson (claimant) appeals a final workers' compensation order denying his claim for permanent total disability or permanent partial disability benefits. The issues raised in this appeal are: (1) whether the deputy commissioner's order is supported by competent substantial evidence, and (2) whether the deputy commissioner erred in failing to find claimant is permanently and totally disabled. We reverse and remand for more specific findings.

On July 17, 1977, claimant sustained a back injury in the course of his employment with Gaineswood Condominiums (employer). At that time, the Veterans Administration had given claimant a 70% service-connected disability, due primarily to nerves. On October 26, 1982, the employer and carrier accepted claimant as permanently and totally disabled, and provided benefits accordingly from October 27, 1982, until July 2, 1984. On June 25, 1984, the employer and carrier filed a notice to controvert on grounds that claimant was able to work, and that there was no evidence that claimant suffered any continuing impairment or disability from the accident beyond that for which compensation had been paid.

The record reflects that claimant served in the Pacific theater during World War II, and after the war, he continued in government employment acting in various intelligence-related capacities. After his July 1977 fall, claimant developed severe back pain, and on July 20, 1977, he was taken by ambulance to the Gainesville Veterans Administration Hospital, with an acute onset of low back pain and left lower extremity radicular pain. The hospital admission summary states in part that claimant "ha[d] a long history of low back pain and right lower extremity radicular pain secondary to a service connected injury." When questioned about these purported pre-existing back problems, claimant explained his prior back problems were due to a pilonidal cyst, and that he had never experienced ongoing back pain of the type associated with the work-related back injury. Despite bed rest and medication, claimant continued to experience severe back problems. In addition, he developed a condition known as drop foot, which was related to the back injury. In 1978, claimant was examined at Ochsner Clinic, and immediate surgery was recommended. After undergoing a lumbar laminectomy in May 1978, claimant experienced initial relief, but his pain returned; the medical records reflect that since that time he has had persistent back pain.

On June 30, 1978, claimant resigned as manager of employer Gaineswood Condominiums, effective July 9, 1978, to take a position with Lake City Community College. Claimant worked full-time at the community college in the areas of vocational evaluation, testing and guidance, until October 1978, when he was readmitted to the Veterans Administration Hospital with lower back and leg pain, and a nervous condition. On April 10, 1979, claimant was examined by Dr. Arthur Rehme, orthopedist, with, among other things, complaints of lower back and leg pains, and numb left leg. Dr. Rehme found claimant had residual effects of his spinal stenosis and previous surgery, with mild arthritis of cervical spine and some arthritis of the lumbosacral spine. In a follow-up report dated July 25, 1979, Dr. Rehme assigned claimant a permanent functional impairment of 20% of the whole body as a result of his back injury. The report also reflects that in Dr. Rehme's opinion, claimant's psychological problems were more severe than his organic problems.

In February 1979, the Veterans Administration notified claimant that his 70% service-connected disability rating had been increased to 100%, retroactive to May 1978, the date of the back surgery. At the hearing, claimant explained that although his service-connected disability was due primarily to nerves, the Veterans Administration rated him as 100% disabled as of the date of his back operation, because it was at that point that he was deemed unemployable.

A psychiatric evaluation dated April 6, 1981, reflects that claimant was suffering from depression secondary to the back injury and the subsequent pain and deficit experienced in relation to the surgery. This report indicates that claimant's prognosis for recovery and return to work were poor. At claimant's request, Dr. Wright provided a letter report dated September 15, 1982, which states that claimant has peripheral neuropathy and radicular nerve pain and secondary degenerative arthritis as a result of his original surgery, and that claimant is totally and permanently disabled because of these medical problems. Dr. Wright further stated that claimant had reached maximum medical improvement, and was totally and permanently disabled for any practical employment efforts.

The deposition of Dr. Rehme, claimant's orthopedic surgeon, reflects that claimant's back problems were the type that would have him feeling totally disabled one day, and reasonably well on another day. Dr. Rehme stated he had increased the former disability rating he had given claimant from 20% to 25%, based on definite changes revealed by x-rays. Dr. Rehme explained that the arthritic changes revealed in the x-rays were related to claimant's back surgery, and that as a result of these changes, claimant would have additional back pain from this point on. According to Dr. Rehme, claimant must avoid any type of heavy manual labor, and he was prohibited from performing some aspects of a condominium manager's job--such as ladder climbing, crawling, lifting and straining at heavy equipment.

Dr. Cote, Veterans Administration orthopedist, began treating claimant in July 1985. Dr. Cote noted that claimant had had back surgery, and was using a TNS unit and taking codeine for chronic pain. He also stated that claimant had undergone surgery for placement of electrical implants for control of his chronic pain, although the implants later had to be removed. Dr. Cote diagnosed claimant's condition as degenerative arthritis and degenerative disc disease of the lumbar spine. Like Dr. Rehme, Dr. Cote explained that claimant could function fairly well some days, and on other days he could be confined to bed due to a flareup. He further stated that although claimant was functioning with the aid of the TNS unit and pain medication, he is forced to lead a sedentary existence.

A private investigator retained by the employer and carrier testified at the hearing regarding his surveillance of claimant. This surveillance was videotaped on June 14, 15, and 16, 1984; August 29, 1984; October 24, 1984; June 29, 1985; and March 26, 1987. A surveillance report and four surveillance tapes, totalling 6- 1/2 hours in all, were introduced into evidence. The tapes show claimant involved in a variety of activities such as driving, walking, washing boat cushions, boat riding, walking around a marina office, talking on the telephone, cleaning waste baskets, drinking coffee, removing trash from the trunk of his car and placing it in a dumpster, walking into the Veterans Administration building with the use of a cane, spraying a driveway and his car with a hose, and washing a car. The tapes depict claimant engaging in these activities with no discernible difficulty.

On August 19, 1987, the deputy commissioner entered an order finding, among other things, that claimant failed to show that he has any permanent impairment or permanent disability beyond the 25% of the body as a whole assigned by his physician. In addition, the order states that claimant failed to prove that he is permanently and totally disabled, and specifically rejected all medical evidence to the contrary. The order further states that in arriving at this conclusion, the deputy commissioner considered that the surveillance films introduced into evidence "clearly show that the claimant is not as physically impaired as he claims to his doctors," and that the medical reports of the Veterans Administration Hospital indicate that claimant had complaints of low back problems before the accident of July 17, 1977. In the order, the deputy expresses doubt concerning the reliability of claimant's testimony, apparently based on the deputy commissioner's skepticism concerning statements made by claimant regarding his work with the National Security Council. It appears that this skepticism was the basis for denial of the claim for permanent total or permanent partial disability benefits.

It is well settled that this court is bound by the deputy's view of the facts, unless the factual findings are clearly erroneous. Chicken 'n Things v. Murray, 329 So.2d 302 (Fla.1976). As a consequence, we will "only review whether the record contains competent, substantial evidence to support the deputy's order." Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). Conversely, if the record demonstrates an absence of competent substantial evidence to support the deputy's determination, the order will be reversed and remanded for further proceedings. Collazo v. Sourini Painting Company, 516 So.2d 288 (Fla. 1st DCA 1987).

Furthermore, while it is the deputy's prerogative to determine the credibility of witnesses, Grillo v. Big "B" Ranch, 328 So.2d 429 (Fla.1976), the deputy is not required to accept the testimony of a witness merely because that witness is competent to testify on a given subject. Paul H. Cowart/Building Specialty v. Cowart, 481 So.2d 83, 84 (Fla. 1st DCA 1986). Nevertheless, where, as in the...