Dalzell v. Mercy Hosp.
| Decision Date | 25 June 1997 |
| Docket Number | No. 96-4616,96-4616 |
| Citation | 697 So.2d 537 |
| Parties | 22 Fla. L. Weekly D1571 Kasia DALZELL, Appellant, v. MERCY HOSPITAL and Multi-Line Claims Service, Appellees. |
| Court | Florida District Court of Appeals |
Steven M. Dunn of Dunn & Johnson, P.A., Miami, for Appellant.
Robert L. Teitler of Walton Lantaff Schroeder & Carson, Miami, for Appellees.
The JCC was entitled to reject the opinion of the only physician who testified that the claimant's disability was work-related. This witness, a Dr. Wand, formed his opinion without the benefit of existing base line information (which he did look over afterwards). Even more disconcerting, Dr. Wand certified that the claimant's problems were not job-related in submitting bills to her health insurer. His testimony as to causation was impeached on this basis. The JCC was under no legal obligation to accept Dr. Wand's self-serving explanation for the inconsistent positions he took.
Affirmed.
I cannot agree with my colleagues' decision to affirm the order denying claimant's petition for permanent total disability (PTD) benefits. In my judgment, the judge of compensations claims (JCC) ignored or overlooked critical evidence in the record indicating a contrary result, and erroneously made certain critical findings that are unsupported by the record. I would therefore reverse the order and remand the cause to the JCC with directions that he either award the benefits requested, or, in the alternative, that he clarify his findings by both correcting his erroneous findings and addressing evidence in the record which he did not address in the order on review.
Because a proper decision in this case depends upon the essential facts, I consider that a brief exposition of the evidence is necessary. Claimant, nearly 62 at the time of the 1996 hearing, suffered two compensable injuries while employed as a licensed practical nurse: the first, on May 19, 1991, when she slipped and fell from a table on which she had been standing, resulting in the fracture of two bones in her left wrist, and the second, on September 2, 1991, when she fell while walking on the grounds of the hospital, breaking her ankle in two places. In early 1992 she began to suffer great pain in her left hand, and her condition was diagnosed as carpal tunnel syndrome (CTS), which resulted in surgery performed on the wrist during June 1992. She then resumed her employment in late July 1992. After working about a month, the pain returned to her left hand, and she believed she was incapable of performing the duties of her position. She explained that because she did not want to be a burden to her coworkers, she had tendered her resignation. Claimant has not worked at any job since her resignation.
Several doctors provided treatment to claimant. Her primary authorized physician, Dr. Harlan Selesnick, an orthopedist, conducted the carpal tunnel surgery and cared for claimant's ankle fractures. Dr. Selesnick listed claimant's physical limitations on a form he filled out on May 31, 1991, stating that the patient could on occasion lift up to ten pounds with her right hand, and that she could not use her left hand to grasp, push, pull or finely manipulate. He also restricted her from climbing. Dr. Selesnick further noted that the claimant had a comminuted wrist fracture. Dr. Selesnick last saw claimant in March 1993, and he determined that she had reached maximum medical improvement (MMI)as of that date with a seven percent permanent impairment (PI) to the body as a whole.
Claimant was also seen by Dr. Paul Wand, a neurologist, who never treated her but instead evaluated her restrictions in December 1993, and again in June 1995 in regard to her application for Social Security disability benefits. Dr. Wand did not order any diagnostic tests, nor did he receive the records from her previous physicians before he made his reports. He did, however, subsequently review the testing that Dr. Selesnick had performed, and indicated in his deposition that the information did not alter his evaluation or restrictions.
Dr. Wand diagnosed CTS in both of claimant's wrists in December 1993. 1 In his functional-capacities evaluation form, which he had filled out for Social Security purposes in 1995, Dr. Wand opined that claimant should not lift more than five pounds, should not stand or walk for more than one hour at a time because of weakness in the left foot, should not sit for more than two hours at one time, should never climb, balance or crouch, and only occasionally stoop, kneel or crawl, and that reaching, handling, feeling, pushing and pulling were affected by her work-related injuries. Moreover, he placed claimant at MMI as of June 27, 1995, with a 13 to 15 percent PI to the body as a whole. Dr. Wand testified at his 1996 deposition that these restrictions would still apply, and he clearly opined that they were established as a result of the accidents that claimant had suffered at work.
Jerry Adato, a certified vocational evaluator with approximately 14 years of experience evaluating workers' vocational abilities, evaluated claimant in October 1994. When he performed a computer match of the transferable skills from her former nursing position, taking into account the restrictions assigned by Drs. Selesnick and Wand, he found that claimant was incapable of performing a single position out of the 12,000 listed in the national economy. While Mr. Adato testified that he had not considered claimant's ability to perform part-time work, he also stated that the same restrictions would apply whether the work was part-time or full-time, because the basic skills that were needed would not change.
Claimant also entered into evidence a copy of the order that awarded her Social Security disability benefits. It found entitlement because physically she would be able to perform only a very narrow range of sedentary jobs. This order was based on the testimony of a different vocational evaluator than Mr. Adato and a different consulting physician for the Social Security Administration than either Drs. Selesnick or Wand.
The...
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