Entenmann's Bakery v. Nunez

• Decision Date: 14 January 1992
• Docket Number: Nos. 90-3422,90-3423,s. 90-3422
• Parties: 17 Fla. L. Weekly D287 ENTENMANN'S BAKERY and The Hartford Insurance Company, Appellants, v. Miguel NUNEZ, Appellee. ENTENMANN'S BAKERY and Liberty Mutual Insurance Company, Appellants, v. Miguel NUNEZ, Appellee.
• Court: Florida District Court of Appeals

Page 1158

592 So.2d 1158

17 Fla. L. Weekly D287

ENTENMANN'S BAKERY and The Hartford Insurance Company, Appellants, v. Miguel NUNEZ, Appellee.

ENTENMANN'S BAKERY and Liberty Mutual Insurance Company, Appellants, v. Miguel NUNEZ, Appellee.

Nos. 90-3422, 90-3423.

District Court of Appeal of Florida,

First District.

Jan. 14, 1992.

Rehearing Denied March 3, 1992.

Jorge A. Pena of Reinert, Perez & Goran, P.A., Coral Gables, for appellants in No. 90-3422.

Arturo Borbolla of Miller, Kagan and Chait, P.A., Coral Gables, for appellants in No. 90-3423.

Jerold Feuer, Miami, for appellee Nunez in No. 90-3422.

Arturo Borbolla of Miller, Kagan and Chait, P.A., Coral Gables, for appellee Liberty Mut. Ins. Co. in No. 90-3422.

Jorge A. Pena of Reinert, Perez & Goran, P.A., Coral Gables, for appellee The Hartford Ins. Co. in No. 90-3423.

WENTWORTH, Senior Judge.

The appellant carriers, Liberty Mutual Insurance Company and The Hartford Group raise several issues in their separate appeals from a worker's compensation order allocating liability equally between them for all compensation benefits due or advanced by Liberty between June 20, 1988 and the June 1990 hearing. We affirm the order for payment of certain past medical and rehabilitation bills by Liberty as necessitated solely by its accidents, but reverse and remand for reconsideration of the remaining decretal portions of the order as to future rehabilitation and the award and reimbursement of compensation benefits due from June 20, 1988 through the date of hearing "and continuing" at the stipulated rate for the last accident.

The order states in material part:

The Claimant suffered serious injuries to his neck and low back due to his accidents of 1983 and 1985; ... he cannot stand for any long period of time; and ... he is unable to bend often or lift more than 25 pounds. I further find that as a result of Claimant's accident of April 2, 1988 ... he suffered injuries to his right leg and a nervous condition which he developed and is described as a serious depressive disorder. I find that after periods of disability, the Claimant returned to work after each of his accidents of October 18, 1983 and September 14, 1985. I further find that the Claimant did attempt to return to work after his accident of April 2, 1988 and he tried to continue to work until June, 1988, when he was no longer able to work due to his physical condition as well as his psychiatric problems.

The Claimant reached maximum medical improvement on April 3, 1984 based upon the testimony of Dr. Orestes Rosabal. On September 4, 1986, after the Claimant's second accident of September 14, 1985, Dr. Rosabal determined that the Claimant had reached maximum medical improvement with a Permanent Partial Disability rating of 5% to the body as a whole based upon the AMI Guide to Permanent Impairment. On November 10, 1988, Dr. Rosabal determined that the Claimant had a Permanent Partial Disability to the body as a whole of 2%. Dr. Lazaro Guerra stated that the Claimant reached maximum medical improvement on February 4, 1987 with a Permanent Partial Disability rating to the body as a whole of 7-8% based upon the AMI Guide to Permanent Impairment due to the injuries to his cervical spine and low back. According to Dr. A. Carlos Casademont the Claimant reached maximum medical improvement on September 7, 1990. Dr. Casademont was further of the opinion that the Claimant would have a permanent partial disability from a psychiatric standpoint,....

I accept the opinions of Dr. Casademont that the psychiatric disability is related to the accident of April 2, 1988 and is not related to the accidents of October 18, 1983 or September 14, 1985.... Based upon ... findings by Dr. Dukovich, the Claimant's employment with the Employer was terminated on March 22, 1990. Dr. Dukovich testified that "this patient is not suitable to continue his regular duty and if he was put back in his regular duty he would very soon be disabled again."

I find that the Claimant tried on several occasions to return to his job at ENTENMANN'S BAKERY. Initially he attempted light duty and thereafter, his regular duties without positive results.

I find that the Claimant did conduct good faith job searches....

G. I have carefully considered the testimony of Dr. Casademont and I accept his opinions as being consistent with the history given by the Claimant as well as all of the other medical opinions and information available to Dr. Casademont,.... (e.s.)

The record here adequately supports the judge's findings that after June, 1988, claimant was no longer able to work due in significant part to his psychiatric disability related to Hartford's accident of April 2, 1988, and that the opinions of Dr. Casademont, including claimant's final maximum medical (psychiatric) improvement on September 7, 1990, were consistent with claimant's history. We find Hartford's contrary contentions to be without merit.

The only other issue raised by Hartford in its appeal is that the judge erred "in finding the Hartford solely responsible for the claimant's psychiatric condition." The order's finding instead is that claimant's psychiatric disability is "related to the accident of April 2, 1988." We construe that language in accord with the evidence to mean that Hartford's accident triggered the psychiatric disability, i.e., but for the latter accident the disability would not have resulted at the time it did. Under these circumstances, and in accord with the relevant statutes and decisions cited in Cruise Quality Painting v. Paige, 564 So.2d 1190 (Fla. 1st DCA 1990), ¹ Hartford is solely responsible for compensation for temporary disability resulting in material part from its accident until the date of final maximum medical or psychiatric improvement.

Decisions allocating temporary benefits between carriers on successive accidents, on the basis of proportionate causal contribution, have involved continuing treatment or temporary disability from prior injuries at the time of a later accident which causes new or additional aggravating disability. See Flagship National Bank v. Hinkle, 479 So.2d 828 (Fla. 1st DCA 1985); Atkins Construction Company v. Wilson, 509 So.2d 1185 (Fla. 1st DCA 1987), rehearing denied; Sauer Industrial Contracting, Inc. and CNA Insurance v. Ditch, 547 So.2d 276 (Fla. 1st DCA 1989). No such circumstances can be gleaned from the record in the present case. Instead, the 1988 accident caused a new physical and psychiatric injury which aggravated claimant's preexisting permanent condition, in the sense that he could no longer tolerate pain from his various injuries, preexisting or otherwise, so as to continue his former employment. Representative testimony in the record of the treating psychiatrist is: "I felt that after I completed my evaluation that Mr. Nunez was suffering from a depressive disorder, and this depressive...