Glades County Sugar Growers v. Gonzales, QQ-338

• Decision Date: 23 September 1980
• Docket Number: No. QQ-338,QQ-338
• Parties: GLADES COUNTY SUGAR GROWERS and Employers Insurance of Wausau, Appellants, v. Thomas GONZALES, Appellee.
• Court: Florida District Court of Appeals

Page 333

388 So.2d 333

GLADES COUNTY SUGAR GROWERS and Employers Insurance of Wausau, Appellants, v. Thomas GONZALES, Appellee.

No. QQ-338.

District Court of Appeal of Florida, First District.

Sept. 23, 1980.

William L. Contole of Brennan, McAliley, Hayskar & McAliley, West Palm Beach, for appellants.

Fred O. Pasternack, Miami, for appellee.

PER CURIAM.

The employer/carrier appeals a worker's compensation order entered March 27, 1979, after hearing on November 17, 1978, awarding Gonzales continued temporary total disability and requiring the employer/carrier to pay all medical bills including those necessary for treatment of injuries from a non-compensable automobile accident. We affirm in part and reverse for reconsideration of the award of medical costs.

On August 11, 1976, Gonzales suffered a compensable accident, resulting in a herniated disc and laminectomy at L-5 with decompression of the S-1 nerve root. The surgery was performed on October 20, 1976.

On January 2, 1977, before Gonzales had reached maximum medical improvement from the first accident, he was involved in a non-compensable automobile accident in which he sustained a herniated disc at L-1. The herniated disc required a laminectomy at L-1-2 which was performed on August 30, 1977.

The employer/carrier raises the following points on appeal:

1. The judge of industrial claims erred in finding that the claimant had not reached maximum medical improvement from the compensable accident of August 11, 1976.

2. The judge of industrial claims erred in not setting forth a finding that he was rejecting Dr. Picaza's testimony and/or Dr. Diaz-Padron's testimony.

3. The judge of industrial claims erred in not setting forth any reasons or justifications for rejecting Dr. Picaza's testimony or Dr. Diaz-Padron's testimony or for accepting Dr. Lopez's testimony over that of Dr. Picaza's and/or Dr. Diaz-Padron's.

4. The judge of industrial claims erred in not segregating the effects of the subsequent non-compensable accident of January 2, 1977, from those of the earlier compensable accident of August 11, 1976.

5. The judge of industrial claims erred in finding that the employer and the carrier were responsible for the treatment for the claimant's subsequent non-compensable accident of January 2, 1977.

Our review of the record indicates no error with respect to the first three points. We therefore affirm on these issues. There was competent, substantial evidence in the record based on the testimony of Dr. Lopez that maximum medical improvement from injuries received in the compensable accident had not been reached at the date of the hearing. In addition to this medical evidence, the deputy commissioner had the opportunity to observe the claimant himself.

Points 2 and 3 are without merit since the order clearly states that the testimony of Dr. Lopez was accepted. This was an implicit rejection of the contrary testimony of Dr. Picaza and Dr. Diaz-Padron. In Pierce v. Piper Aircraft Corp., 279 So.2d 281, 284 (Fla. 1973), the Supreme Court indicated only that under certain circumstances more explicit findings would be helpful:

(W)here testimony of two or more expert witnesses of comparable qualification are in direct conflict, it will be helpful to the Commission and this Court if some explanation is given as to why the testimony of one is accepted and the other rejected.

In Vargas v. Americana of Bal Harbor, 345 So.2d 1052, 1054 (Fla. 1976), the opinion clearly rejects the idea that orders should contain a recounting of the testimony. Pierce and Vargas do not impose any absolute requirement that an order explain why one doctor is found more credible than another. Questions of witness credibility, including that of expert witnesses, have always been for the trier of fact. South Venice Corp. v. Caspersen, 229 So.2d 652 (Fla.2d DCA 1969). So long as the order is not so deficient as to impede review when measured against the record facts, reversal is not in order.

As to Point 4, the order finds that the evidence failed to show "that the second accident had increased the degree of temporary disability;" that at the time of the hearing claimant "had not reached maximum medical improvement from the compensable accident and that his temporary disability still flows from this accident;" and that "there can be no apportioning, legally or factually, of the effects of the second accident until the claimant has attained maximum medical improvement." We...