Fuchs Baking Co. v. Estate of Szlosek, AY-231

CourtCourt of Appeal of Florida (US)
Citation466 So.2d 415,10 Fla. L. Weekly 836
Docket NumberNo. AY-231,AY-231
Parties10 Fla. L. Weekly 836 FUCHS BAKING COMPANY and Employer's Service Corp., Appellants, v. ESTATE of Francis SZLOSEK, Appellee.
Decision Date02 April 1985

Mark L. Zientz of Williams & Zientz, Coral Gables, for appellants.

Randolph W. Adams, Fort Lauderdale, for appellee.


The employer/carrier appeal from an order of the deputy commissioner awarding temporary total disability (TTD) benefits with interest, medical bills, attorney's fees, and costs. We affirm the award of TTD for the entire period from February 28, 1981 until November 17, 1983. We also find no error in the commissioner's finding that claimant's treatment by Drs. Stillman and Berntson was reasonable and necessary. However, we find an absence of a finding of "good cause" to excuse the failure to file timely medical reports as required by Section 440.13(2), Florida Statutes (1983). Affirmed in part, reversed in part, and remanded.

On April 14, 1979, claimant, a 45-year-old bakery delivery supervisor, was injured in a compensable industrial accident. He sustained both orthopedic and psychiatric injuries due to the accident and subsequently committed suicide on November 17, 1983, during the course of the litigation below. Due to claimant's unfortunate death, the facts surrounding the accident were introduced into evidence by way of the history given by claimant to his treating orthopedic surgeon and psychiatrist. The accident occurred when the delivery truck in which claimant was riding as a passenger collided with a second vehicle. The impact caused heavy racks of baked goods stacked behind claimant to slide forward, pushing claimant's head against the truck's windshield. He experienced pain in his back and legs upon impact and was taken to a hospital emergency room where he was x-rayed and released later that day. Claimant continued to suffer with severe headaches and bodily pains and began treatment by orthopedic surgeons and a chiropractor on the day following the accident. On September 20, 1979, he began treatment with Dr. Stuart, an orthopedic surgeon authorized by the employer/carrier (E/C). Dr. Stuart diagnosed a cervical lumbar strain and bursitis and treated claimant monthly until February 23, 1981. At that time, it was Stuart's opinion that maximum medical improvement (MMI) had been reached. He thus released the claimant and assigned a rating of 10% permanent partial disability (PPD). Claimant apparently attempted to work after that date, but returned to Dr. Stuart in a worsened condition in November 1981 and, on February 3, 1982, monthly orthopedic treatment was resumed. Dr. Stuart testified at the hearing that, based on claimant's worsened condition and the results of further medical examinations, his opinion was changed regarding the initial MMI date. Instead, he decided that claimant had not reached orthopedic MMI until August, 1983 at which time he assigned a 15 to 20% PPD rating. The doctor testified that, when claimant returned in February 1982, he was "really worse and having more problems, more pain, and he was unable to work." Dr. Stuart's testimony was such that it indicated both depression and orthopedic injuries as the cause of claimant's inability to work.

By March 1983, claimant's depression had reached a point where Dr. Stuart felt it necessary to recommend psychiatric treatment. Authorization for a Dr. Waldheim was requested from the E/C in March. A letter dated April 6, 1983 from claimant's attorney to the E/C's attorney was introduced into evidence at the hearing, confirming a "recent conversation" wherein the E/C had refused authorization of Dr. Waldheim. Claimant then began unauthorized psychiatric treatment with Dr. Stillman on April 14, 1983. The E/C's attorney did eventually schedule an appointment for an examination of claimant by a psychiatrist, Dr. Cohn, for May 16, 1983. However, the DC determined this appointment to be in the nature of authorization for an independent medical examination, and found that psychiatric treatment was at no point authorized by the E/C.

Dr. Stillman, upon examination, diagnosed claimant as suffering from post-traumatic stress disorder, organic brain syndrome and petit mal epilepsy, all of which he attributed to the April 14, 1979 accident. His diagnosis was based upon his own examinations of the claimant and was confirmed by the results of tests performed by Dr. Berntson, a psychologist recommended by Dr. Stillman. Between July and November of 1983 claimant's psychiatric condition worsened to the extent that Dr. Stillman testified he could do nothing to help claimant short of anesthesia. By November 4, 1983 claimant had slipped into psychotic depression and was expressing thoughts of suicide. Claimant was hospitalized on November 10, 1983 and committed suicide on November 17, 1983.

Dr. Stillman testified that it was his opinion that, psychiatrically, by April 14, 1983, the date of his initial visit with Stillman, claimant had reached MMI and was permanently impaired. He also stated that claimant was unable to work not only during the period of Stillman's treatment, but from February 28, 1981 until his death on November 17, 1983. The doctor stated that claimant's inability to work from February 28, 1981 until April 14, 1983 (prior to his having treated claimant) was based upon his examination of claimant, the history given to him by claimant, corroboration of that history by claimant's family members, the nature of claimant's disorder, its natural history (which Stillman explained to be a "known entity"), and his personal experience as a psychiatrist working with such cases. Claimant's estate claimed TTD benefits from February 28, 1981 until November 17, 1983 with interest, wage loss and PTD benefits from the date of MMI with interest, payment of Drs. Stillman and Berntson's medical bills, costs and attorney's fees. The DC found as fact that the E/C had refused to authorize any psychiatric treatment for claimant, that such refusal was unreasonable, and that claimant's unauthorized treatment by Stillman and Berntson was reasonable and necessary. As to disability benefits, the DC found as fact that claimant was psychiatrically TTD from February 28, 1981 until April 14, 1983, psychiatrically PTD after April 14, 1983, and orthopedically TTD from February 3, 1982 until November 17, 1983. The E/C was ordered to pay Drs. Stillman and Berntson's medical bills with interest, TTD from February 28, 1981 until November 17, 1983 with interest, attorney's fees and costs. From this order the E/C appeal, raising two points of error.

The E/C first argue that there was no competent substantial evidence to support the commissioner's order to pay TTD from February 28, 1981 until November 17, 1983, finding fault with each of the three periods of disability reflected in the commissioner's order. As to the period of psychiatric TTD from February 1981 until April 14, 1983, the E/C argue that Dr. Stillman's opinion, though admittedly admissible, is nonetheless incompetent because it is unsupported by independent evidence. Appellant has cited for support several cases which stand for the proposition that a medical expert's opinion must be based upon evidence in the record, Geiger Distributors, Inc. v. Snow, 186 So.2d 507 (Fla.1966), not upon facts or inferences not supported by evidence, Victoria Hospital v. Perez, 395 So.2d 1165 (Fla. 1st DCA 1981) or not independently proved. Lang Pools v. McIntosh, 415 So.2d 842 (Fla. 1st DCA 1982); Gold Coast Paving Co., Inc. v. Fonseca, 411 So.2d 259 (Fla. 1st DCA 1982). See also Arkin Construction Co. v. Simpkins, 99 So.2d 557 (Fla.1957). Appellant contends that, as the claimant did not begin treatment with Dr. Stillman until April 14, 1983, Stillman's opinion that claimant was TTD during the two years prior to that date must necessarily have been based upon the history given to him by claimant. Further, since the claimant was unavailable to testify at the hearing, nor was his deposition placed into evidence, the accuracy of the history upon which Dr. Stillman based his opinion cannot be tested and, thus, Stillman's opinion is not competent evidence.

While we do not dispute that the cases cited by appellant indeed stand for the proposition stated, we feel that those cases are distinguishable from the case at bar. The cases cited involved fact situations where a doctor based a causation opinion upon an assumption of the truth of a single fact or event. One of the clearest examples is Lang Pools v. McIntosh, supra, wherein the doctor testified that claimant's hip problems had come about as the result of a fall she suffered at work. The assumption that the claimant had suffered a fall, however, was totally unsupported by any evidence. Indeed, even the claimant's description of the accident did not include a fall. The case at bar involves a different situation. Dr. Stillman's opinion that claimant was unable to work due to his psychiatric condition as far back as February 1981 was based not upon a sole, unsupported fact, but upon a number of grounds, including his own expertise as a psychiatrist dealing with such illnesses. We believe Dr. Stillman's opinion was competent to support a finding of psychiatric TTD from February 28, 1981, until April 14, 1983.

As to the period of psychiatric TTD which the commissioner found to exist from April 14, 1983, until claimant's death, appellant argues that, as...

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