Chavarria v. Selugal Clothing, Inc.

• Decision Date: 03 February 2003
• Docket Number: No. 1D00-3467.,1D00-3467.
• Parties: Elva CHAVARRIA, Appellant, v. SELUGAL CLOTHING, INC., Clarendon National Insurance Co. and Stirling Cooke Insurance Services, Appellees.
• Court: Florida District Court of Appeals

840 So.2d 1071

Elva CHAVARRIA, Appellant, v. SELUGAL CLOTHING, INC., Clarendon National Insurance Co. and Stirling Cooke Insurance Services, Appellees.

No. 1D00-3467.

District Court of Appeal of Florida, First District.

February 3, 2003.

Rehearing Denied March 31, 2003.

Charles E. Bloom, of Bloom & Kinnear, Miami, and Randy D. Ellison, West Palm Beach, for Appellant.

Robert L. Teitler and Lazaro C. Rodriguez of Walton, Lantaff, Schroeder & Carson, Miami for Appellees.

EN BANC.

KAHN, J.

In this workers' compensation case, physicians gave expert testimony that, in some regards, was not consonant with testimony given by other physicians. The judge of compensation claims (JCC), as trier of fact, chose to credit portions of certain expert testimony over portions of other expert testimony. The disciplines involved are orthopedics and psychiatry. Because the JCC followed the rule required by both statute and supreme court precedent, we affirm.

I.

Appellant Elva Chavarria suffered a significant crush injury to her right hand as the result of an industrial accident on September 10, 1996. The JCC rejected the testimony of two orthopedists concerning the degree of physical impairment in favor of evidence provided by Chavarria's longtime treating physician. The JCC also accepted psychiatric testimony concerning degree of impairment that differed from other testimony.

The issue concerning the orthopedic testimony centers upon a difference between the testimony of Dr. Richard Rogachefsky and Dr. Jay Dennis. The JCC made the following observations concerning the orthopedic testimony:

3. Dr. Richard Rogachefsky (orthopedic surgeon/hand surgeon) diagnosed the Claimant with a right hand crush injury with fractures of the two through five metacarpals. He initially operated on the Claimant's right hand on September 12, 1996 at Jackson Memorial Hospital. Dr. Rogachefsky performed a second surgery to the Claimant's right hand on March 20, 1997 to further correct the problem, and released the Claimant to light duty work on June 24, 1997, with the following restrictions: she can work an eight hour day, she can stand, sit and walk for five to eight hours, she can drive one to three hours, she can do simple grasping of both hands, no pushing/pulling on the right, she can on the left, fine manipulation on both hands, she can bend, squat, reach above shoulders, kneel and use foot controls continuously, she cannot climb or crawl, and she can lift a maximum of ten pounds. He continued to treat the Claimant and placed her at Maximum Medical Improvement (M.M.I.) on February 4, 1998, with an 11% permanent impairment rating to the body as a whole. At that time Dr. Rogachefsky issued the following permanent work restrictions: no heavy pushing or pulling on the right, no climbing or crawling, lift maximum of 20 lbs. On June 16, 1999, Dr. Rogachefsky performed a third surgery on the Claimant's right hand to remove a plate from the second and fifth metacarpals. Subsequent to the third surgery, Dr. Rogachefsky moved his practice to New York and his partner, Dr. Jay Dennis, took over as the authorized treating provider for the Claimant's right hand injury.

4. Dr. Jay Dennis (orthopedic surgeon / hand surgeon) first saw the Claimant on August 3, 1999. Dr. Dennis continued to treat the Claimant through October 8, 1999, at which point he placed her at Maximum Medical Improvement (M.M.I.). At his deposition of May 9, 2000, Dr. Dennis initially indicated that he concurred with the permanent impairment rating of 11% given by Dr. Rogachefsky back on February 4, 1998. However, upon conducting an additional review of the 1996 Florida Impairment Guide at said deposition, Dr. Dennis indicated that in his opinion the Claimant had a 16% permanent impairment rating to the body as a whole as a result of her right hand crush injury. He further agreed with the work restrictions issued by Dr. Rogachefsky on February 4, 1998 (stated above). Dr. Dennis also indicated that there was nothing else that could be done for the Claimant from an orthopedic/hand surgeon standpoint, and that the Claimant may benefit from the care of a pain management specialist.

5. Dr. Dennis Zaslow (orthopedic surgeon) performed an Independent Medical Examination (I.M.E.) of the Claimant (on behalf of the Claimant) on January 26, 1999. At his deposition of April 3, 2000, Dr. Zaslow testified that the Claimant had reached Maximum Medical Improvement for her right hand condition as of January 26, 1999, with a 16% permanent impairment rating to the body as a whole. He also opined that the Claimant would not be able to return to work as a result of her right hand condition.

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12. I accept the medical opinion evidence as contained in the medical records of Dr. Richard Rogachefsky indicating the Claimant's Maximum Medical Improvement (M.M.I.) date for her right hand condition to be February 4, 1998, and setting the Claimant's permanent physical impairment rating to the body as a whole at 11%. I also accept the Claimant's physical work restrictions as indicated by Dr. Rogachefsky on February 4, 1998 of no heavy pushing or pulling on the right, no climbing or crawling, lift maximum of 20 lbs. (subsequently reiterated and adopted by Dr. Jay Dennis).

13. I accept the medical opinion testimony of Dr. Jay Dennis once again placing the Claimant at Maximum Medical Improvement (M.M.I.) (after her last surgery of June 16, 1999) for her right hand condition on October 8, 1999.[¹] I also accept Dr. Dennis' medical opinion testimony indicating that the Claimant may benefit from the services of a pain management specialist. I, however, reject the 16% permanent physical impairment rating assigned by Dr. Dennis to the body as a whole, as I accept the 11% permanent physical impairment rating assigned by Dr. Rogachefsky (see above) since the Claimant's physical condition was virtually unchanged after February 4, 1998 (only a plate removal procedure took place after said date), and Dr. Rogachefsky performed all three surgeries on the Claimant and treated the Claimant for a longer period of time.

The JCC made the following findings with regard to the psychiatric testimony:

7. The Claimant's treating psychiatrist, Dr. Angel Diaz, diagnosed "adjustment disorder with depressive and anxiety features, chronic type, and pain disorder, chronic type." He treated the Claimant and placed her at Maximum Medical Improvement from a psychiatric standpoint on October 20, 1999, and assigned a 10% permanent psychiatric impairment rating to the body as a whole. Dr. Diaz released the Claimant to light duty work as of that date with the following restrictions: "no complex tasks, no quotas or deadlines to be met, and not to deal with the public."

8. Dr. Juan Espinosa (psychiatrist) performed an Independent Medical Examination (I.M.E.) of the Claimant (on behalf of the Employer/Carrier/Servicing Agent) on January 26, 2000, and opined at this deposition of May 10, 2000, that while the Claimant may still improve from additional psychiatric treatment, he would issue a permanent impairment rating of 5% to the body with a depressive disorder, mild to moderate. He further opined that the Claimant was able to work from a psychiatric standpoint, with the only restriction being to limit employment to low stress jobs.

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14. I accept the medical opinion testimony of Dr. Juan Espinosa, psychiatrist, who diagnosed the Claimant with a depressive disorder, mild to moderate. I also accept Dr. Espinosa's medical opinion testimony indicating the Claimant to have a psychiatric impairment rating to the body as a whole of 5% as of January 26, 2000, and indicating that the Claimant is able to return to work from a psychiatric standpoint with the only work restriction being low stress.

15. I accept the medical opinion testimony of Dr. Angel Diaz, psychiatrist, to the extent that it is consistent with the medical opinion testimony of Dr. Juan Espinosa (above). Dr. Diaz diagnosed the claimant with "adjustment disorder with depressive and anxiety features, chronic type, and pain disorder, chronic type", placed the Claimant at Maximum Medical Improvement from a psychiatric standpoint on October 20, 1999, and released the Claimant to light duty work as of that date with the following psychiatric work restrictions: "no complex tasks, no quotas or deadlines to be met, and not to deal with the public."

Claimant has never argued, either before the JCC or before this court, that the evidence provided by Dr. Rogachefsky or Dr. Espinosa was legally incompetent and, therefore, could not serve as the basis for a decision. Cf., e.g., Rinker Materials Corp. v. Hill, 471 So.2d 119 (Fla. 1st DCA 1985)

(rejecting an argument that testimony of an economic expert was not competent because it was based on factual assumptions not supported by the record and noting that such argument would not be considered on appeal because no contemporaneous objection was made before the JCC). Although Dr. Rogachefsky provided his orthopedic impairment rating as part of his medical chart rather than in testimony, "[a]ll medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the judge of compensation claims upon proper motion." § 440.29(4), Fla. Stat. (1999). Nevertheless, appellant argues on appeal that under certain case law, the JCC failed to provide adequate reasons for acceptance of the Rogachefsky and Espinosa opinions.

II.

Workers' compensation law in Florida is statutory. See Thompson v. Fla. Indus. Comm'n, 224 So.2d 286, 287 (Fla.1969)

(noting that the remedy for any inadequacy in the Workmen's Compensation Act lies with the Legislature and not with the Industrial Commission or the court); Fournigault v. Jackson Mem'l Hosp. Standard Accident Ins. Co., 87 So.2d 102, 104 (Fla.1956) ("Workmen's compensation is statutory...."). For this reason, court decisions in the area of workers'...