Delgado v. Blanco & Sons Catering, 91-1850

• Decision Date: 17 September 1992
• Docket Number: No. 91-1850,91-1850
• Citation: 606 So.2d 658
• Court: Florida District Court of Appeals
• Parties: 17 Fla. L. Weekly D2186 Juan B. DELGADO, Appellant, v. BLANCO & SONS CATERING and Fireman's Fund Insurance, Appellees.

Page 658

606 So.2d 658

17 Fla. L. Weekly D2186

Juan B. DELGADO, Appellant, v. BLANCO & SONS CATERING and Fireman's Fund Insurance, Appellees.

No. 91-1850.

District Court of Appeal of Florida,

First District.

Sept. 17, 1992.

Susan W. Fox of MacFarlane, Ferguson, Allison & Kelly, Tampa, and Paul Sidney Elliott, Tampa, for appellant.

Laurie R. Leon of Sussman, Byrd, Hektner & Mayfield, Tampa, for appellees.

ERVIN, Judge.

In this workers' compensation appeal, Juan B. Delgado, the claimant/appellant, appeals the denial of his claim for the surgical repair of his hernia and temporary total disability (TTD) benefits though December 28, 1989. We reverse and remand, because claimant's preexisting hernia was aggravated by the work-related accident, thereby necessitating the surgery.

Claimant was employed as a deli sandwich maker for the employer, Blanco & Sons Catering. He had been diagnosed as having an inguinal hernia in 1987. Surgery was recommended, but claimant declined, and claimant continued working for the employer in that the hernia did not prevent him from performing his job duties. On July 5, 1989, claimant was involved in an altercation with one of his employers. Following the incident, he was taken to the emergency room where his injuries were diagnosed as a fracture of the hip and an inguinal hernia.

Claimant was treated by Dr. Martinez, an orthopedist, for his fractured hip. While under his care, claimant was referred to Dr. Reddy, a general surgeon, for his hernia. Dr. Reddy recommended surgery, but delayed same while claimant was being treated for the hip fracture. On August 10, 1989, Dr. Martinez released claimant from his care and instructed him to return only on a PRN (as needed) basis. Dr. Reddy then performed surgery to repair claimant's hernia on September 6, 1989. Claimant was released from Dr. Reddy's care on December 28, 1989.

While finding the hip fracture was work-related and medical and disability benefits pertaining thereto compensable, the judge of compensation claims (JCC) denied any disability or medical benefits associated with the hernia, stating "that the overwhelming weight of the evidence is that this claimant's hernia condition was no worse after this incident than it was before, and that the surgery that was done to repair the hernia was surgery that was already needed and was not the result of any aggravation by this incident." The JCC thereupon directed that TTD benefits be paid for the period immediately following the accident through August 10, 1989, the date claimant was discharged by Dr. Martinez.

The record indisputably discloses that claimant had a preexisting hernia; however, the unrefuted medical evidence established through Dr. Reddy's testimony shows that claimant's hernia was aggravated by the work-related incident. Dr. Reddy specifically testified that the hernia caused more pain, tenderness, and discomfort following the altercation. Additionally, Dr. Reddy opined that the hernia surgery was required to repair the hernia due to the aggravation. He did admit that there was no objective way to tell whether claimant's condition was actually made worse due to the altercation, except by the history given to him by claimant; in our judgment, however, for the reasons stated infra, the history claimant gave Dr. Reddy was not refuted by other evidence in the record showing an earlier need for hernia repair.

Thus, there was no medical evidence on which the JCC could base a finding that claimant's condition was no worse following the altercation than it was before or that the surgery was not the result of any aggravation of the hernia. The testimony by two of the employers, Robert and Rofino Blanco, that claimant had, prior to the altercation, complained frequently of hernia pain, that claimant had been taken in 1987 to Tampa General Hospital, and that claimant had been told by an unnamed doctor that he needed hernia surgery is not that kind of competent, substantial evidence essential to support a finding to the contrary. Neither did the medical records, wherein the existence of claimant's hernia was noted, of claimant's visits to the hospital in September 1987 and February 1989 conflict with Dr. Reddy's opinion. Rather, such evidence merely established the presence of the preexisting condition. In fact, at the time Dr. Reddy's deposition was taken, Dr. Reddy had reviewed the prior medical records of claimant's preexisting hernia condition, and, despite his knowledge of claimant's prior condition, his opinion that claimant's prior herniated condition had been aggravated during the altercation remained unchanged. Indeed, Dr. Reddy stated that the facts contained in the medical records relating to claimant's preexisting condition were consistent with his findings.

Dr. Reddy's opinion of aggravation was, moreover, corroborated by other evidence in the record showing that prior to the altercation claimant's preexisting condition had never disabled him from working. In fact, the record clearly shows that claimant continued to perform his job after the initial diagnosis, albeit with occasional pain. In cases such as this, when a preexisting disease is aggravated by a work-related accident, the resulting disability must be considered as falling into one of the following three categories:

(1) that which resulted directly and solely from the accident and which would have occurred even in the absence of the pre-existing disease; (2) that which resulted from the acceleration or aggravation of the pre-existing disease by the accident; and (3) that which resulted from the normal progress of the disease and would have existed had the accident never occurred.

Evans v. Florida Indus. Comm'n, 196 So.2d 748, 752 (Fla.1967). See also Escambia County Council on Aging v. Goldsmith, 500 So.2d 626, 629 (Fla. 1st DCA 1986) (quoting Evans ). Disability falling within the first two categories is compensable. Evans, 196 So.2d at 752; Goldsmith, 500 So.2d at 629 (quoting Evans ). Thus, if apportionment were appropriate, which it is not under the circumstances at bar, ¹ apportionment between the employer and the claimant as to a preexisting condition would be only warranted "when and to the extent that the pre-existing disease either, (1) was disabling at the time of the accident and continued to be so at the time the award is made or (2) was producing no disability at the time of the accident but through its normal progress is doing so at the time ... an award is made." Evans, 196 So.2d at 752-53; Goldsmith, 500 So.2d at 629 (quoting Evans ).

Indisputably, the instant case does not fall into the first category--the record clearly shows claimant's hernia did not result directly and solely from the altercation with the employer. Moreover, it cannot be said that claimant's hernia surgery resulted from the normal progress of the disease--the record clearly established that claimant was able to perform his job duties continuously from the 1987 diagnosis until the July 5, 1989 altercation. Claimant's condition thus falls into the second category--that which resulted from an aggravation of his preexisting hernia, as was testified to by Dr. Reddy.

In deciding that claimant's hernia was aggravated during the industrial accident, we have not overlooked case law authority recognizing that a JCC may reject expert medical testimony and base a compensation decision on lay testimony or other such evidence if the issue involves matters within the knowledge and sensory experience of lay persons, such as the employee's inability to perform work. See Jackson v. Dade County Sch. Bd., 454 So.2d 765, 766 (Fla. 1st DCA 1984). In the present case, there was, however, no evidence that claimant was unable to work, or that he was suffering from any disability prior to the accident in question. Hence, the judge's essential finding that claimant's preexisting condition was no worse following the accident than it was before is simply not supported by competent, substantial evidence, in that there was no evidence in the record refuting Dr. Reddy's opinion that claimant's prior condition was aggravated by the work-related accident. As Professor Larson explains: "Preexisting disease or infirmity of the employee does not disqualify a claim under the 'arising out of employment' requirement if the employment aggravated, accelerated, or combined with the disease or infirmity to produce the death or disability for which compensation is sought." 1 Arthur Larson, The Law of Workmen's Compensation Sec. 12.21, at 3-381 (footnotes omitted). Professor Larson continues that "in practice most of the problems in this area are medical rather than legal." Id., Sec. 12.24, at 3-452.

Because claimant was not "disabled" ² from working up until the time of his work-related accident, the aggravation of his preexisting condition must be considered compensable. See McGarity v. Merit Elec. Co., 478 So.2d 1074 (Fla. 1st DCA 1985); Kuczkowski v. Bethlehem Steel Corp., 90 A.D.2d 612, 456 N.Y.S.2d 166, aff'd, 58 N.Y.2d 946, 460 N.Y.S.2d 533, 447 N.E.2d 81 (1983). Compare Padrick Chevrolet Co. v. Crosby, 75 So.2d 762 (Fla.1954) (finding preexisting hernia condition compensable, but requiring apportionment under statute then in effect).

REVERSED and REMANDED for further proceedings.

SMITH, J., concurs.

KAHN, J., dissents with written opinion.

KAHN, Judge, dissenting.

It is extremely important to remember that while doctors always give testimony as to causation, such expert opinion is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion. Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561, 562 (Fla.1960). "The opinion of the expert cannot constitute proof of the existence of facts necessary to the support of the opinion." Arkin Constr. Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957). I hope that this court has not forgotten the wise observation made by Judge Wentworth in Tampa Bay...