Gold Coast Paving Co., Inc. v. Fonseca, YY-308
| Decision Date | 04 March 1982 |
| Docket Number | No. YY-308,YY-308 |
| Parties | GOLD COAST PAVING COMPANY, INC. and Maryland Casualty Insurance Company, Appellants, v. Baltazar FONSECA, Appellee. |
| Court | Florida District Court of Appeals |
Frank G. Cibula, Jr., West Palm Beach, for appellants.
Shelton Clyatt, Jr., West Palm Beach, for appellee.
This cause is before us on appeal by the employer/carrier from a workers' compensation order awarding continuing temporary total disability benefits from the date of the accident, past and continuing medical treatment by claimant's physicians in Mexico, attorney fees, interest, penalties and costs. The employer/carrier raises numerous points on appeal. Because we find that there was no competent substantial evidence that the claimant's disability at the time of the hearing on September 25, 1980 was causally related to his May 21, 1978 industrial accident, we reverse.
Claimant, Baltazar Fonseca, is a native of Mexico who was employed as a laborer by appellant, Gold Coast Paving Company, Inc., in Palm Beach County, Florida. He had a history of back and groin pain dating from 1976. In August, 1977, Fonseca sustained an industrial accident while working for a prior employer. He was treated for back pain and underwent surgery to repair a hernia but returned to work without restriction in December, 1977.
Approximately five months later, on May 21, 1978, Fonseca sustained a second accident when he jumped from a roller machine in the course of his employment with appellant. Following a short hospitalization for contusions and muscle spasm of the lumbrosacral area of the left hip, Fonseca lived with his brother in Pahokee, Florida, for approximately two months. During this period, the employer/carrier supplied medical treatment by several authorized physicians and paid temporary total disability benefits until June 29, 1978, when the payments ceased for reasons not apparent in the record. After filing a "shotgun" workers' compensation claim on July 17, 1978, Fonseca left the United States in August, 1978, and flew back to his residence in Irapuato, Mexico, where he remained during the proceedings below.
Prior to Fonseca's departure from the United States, his physicians felt that he was able to return to work, and all x-rays were normal. Dr. Penner, the treating orthopedic surgeon, stated by deposition that his examination of Fonseca on July 25, 1978 was "completely normal" and that he suspected malingering, although he "tried ... to be fair to this patient." Dr. Orduna, a general surgeon who repaired Fonseca's 1977 hernia, examined him on June 14, 1978, after Fonseca complained of groin pain. Dr. Orduna found "no recurrence or breakdown in the hernia repair" and recommended that Fonseca return to work in two weeks. At the time Fonseca left the United States, there was no medical evidence of any disability or inability to work.
The Deputy Commissioner's finding that Fonseca had "serious and continuing medical problems" related to the May 21, 1978 accident was based entirely on deposition testimony by two physicians in Irapuato, Mexico, approximately one and a half years after the accident. This testimony was taken on October 19, 1979, without the presence of the employer/carrier's counsel. The deposition testimony revealed that Fonseca waited approximately six months after his return to Mexico (eight months after the accident) before seeking medical attention on February 9, 1979. Dr. Arboleya, a specialist in physical therapy, testified that at this time Fonseca's x-rays revealed a herniated disc caused by a wedge fracture and nerve root compression. Dr. Arboleya felt that Fonseca was totally disabled and might require surgery if he did not improve within two months. He did not testify as to causation. Dr. Delfin, a Mexican neurosurgeon, also examined Fonseca in early 1979 and diagnosed radicular compression and a herniated disc. Dr. Delfin also felt that Fonseca was totally disabled.
The Deputy Commissioner based his finding that Fonseca's disability in early 1979 was causally related to the industrial accident on...
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