Gomez v. Neckwear
| Decision Date | 22 December 1982 |
| Docket Number | No. YY-423,YY-423 |
| Citation | 424 So.2d 106 |
| Parties | Amelia GOMEZ, Appellant, v. Jack Steinberg NECKWEAR, Appellee. |
| Court | Florida District Court of Appeals |
Edward A. Sirkin, H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellant.
Russell A. Ortmayer, of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellee.
In this workers' compensation litigation arising from a May 1977 industrial accident, claimant appeals from Deputy Commissioner Tomlinson's order recognizing claimant's ten percent permanent partial disability, and ordering appropriate benefits, but denying claimant additional benefits based on loss of wage earning capacity and impairment due to claimant's psychiatric difficulties.
The court by a decisive majority vote, and to maintain uniformity in the court's decisions, ordered that this case be determined en banc, Fla.R.App.P. 9.331(a), as requested by the three-judge panel originally assigned.
Upon considering the matter at some length, we conclude that this case presents an occasion for deference to the deputy's permissible findings and conclusions. The deputy's order recites and interprets the evidence, makes findings, and denies compensation for wage earning capacity loss upon evidence which we find adequate, and denies compensation for permanent psychiatric impairment on the ground those problems "do not arise out of the industrial accident" but were related only to a subsequent event, in this case her employer's denial of further employment when she reported back to work. That finding presents a close question of interpreting a physician's testimony. No doubt some of the judges now deciding this appeal, if we were instead deputy commissioners, would have viewed the evidence differently. But considering the deputy's decisive finding with a disposition to sustain it exactly as we would view a jury's verdict or a circuit judge's findings on contested facts and disputed inferences, we must affirm the deputy's decision as being a permissible view of the evidence.
This claimant had a long and complex history of various troubling ills. She was subject to depression long before her industrial accident in May 1971. When she fell and was hurt on the job, psychological ramifications were inevitable and did in fact occur at least temporarily. We are not here concerned with the workers' compensation benefits justly paid to her during the period of her convalescence, or with permanent disability benefits paid to her, and assessed by the deputy, for her residual physical disability at the time of maximum medical improvement in March 1979. When she reported back to work in November 1977, some time before the undisputed maximum medical improvement date, Dr. Casademont, claimant's psychiatric physician, described her address to life and work in this way:
I think that ... in spite of all the problems she was still motivated and had returned to work, to Jack Steinberg, and I said, yes, this is exactly what happened. That in spite of all these problems she continued to try to lead an active or productive type of life.
....
She tried to go back to work. I mean, you see, the same pattern. Again, maybe she was not feeling well, but she did try to go back one more time.
What claimant found, when she returned to work, was that her job was no longer available. In claimant's words, her employer told her "I don't want you here anymore." This event, Dr. Casademont concluded, was the critical factor (in what he called the "accident"), which accounted for that part of her permanent partial psychiatric disability not attributed to her predisposing conditions. In March 1980 she found both the opportunity and the will to return to gainful employment elsewhere.
Given the complexity of this human experience, and the variety of medical testimony in the record, it is no doubt possible to remodel the deputy's description of causal events in various ways. One might say that claimant's distress over the firing incident extended and aggravated or prevented her recovery from psychological conditions related to the compensable accident. One might say that her reactions to loss of employment and to her injury were concurrent causes of her rated permanent psychiatric disability.
The difficulty with those divergent interpretations of the record, and with others that might be imagined by some combination of three judges of a twelve-judge court, is that the deputy viewed the facts somewhat differently. Weighing all the complex and necessarily abstract medical opinion in the light of his complete familiarity with the claimant and her case, gained over the course of several hearings, the deputy found as a fact that
the psychiatric problems of the claimant do not arise out of the industrial accident, but were related only to the loss of her employment.
If the deputy's finding is sustained, claimant's depression is not compensable, since that finding necessarily rests on a determination that her industrial injury was not a direct or indirect cause of her loss of employment (conceded by counsel on this record) or the ensuing permanent psychiatric impairment. Chapter 440 encourages but does not require an employer to keep open a job for a returning worker, and it does not monitor the employer's reasons for giving the job to another or declaring it surplus. If the law did have that effect, claimant's jobless condition in such circumstances as these would automatically be compensable regardless of other available work. An employer's decision not to rehire does not necessarily become a compensable event, as a matter of law, because the former employee is wracked with disappointment.
So the deputy's assessment of the evidence as a whole, including Dr. Casademont's testimony, was a permissible one, whether or not we would have made such an assessment in his position. This is the kind of winnowing decision, applying law to facts, that circuit court judges and juries make every day; it is the kind of decision, from those sources, that appellate courts routinely and steadfastly refuse to disturb. In the same way, then, the findings and conclusions of deputy commissioners command our respect, and when we withhold that due deference we only unsettle the compensation system and invite retrials of compensation claims in this court. We therefore reaffirm that the deputy's findings will be sustained if that is permitted by any view of the evidence and its permissible inferences; that, as we said in Poinciana Village Construction Corp. v. Gallarano, 421 So.2d 621 (Fla. 1st DCA 1982), the deputy is "the trier of facts and the judge of their significance both first and foremost," and the deputy's decisions falling "within that range of reasonable analysis" will be sustained.
The deputy's order is therefore AFFIRMED.
In this workers' compensation case, the claimant appeals the deputy's findings that claimant's psychiatric problems were not caused by her compensable accident and that she did not suffer a loss of wage earning capacity greater than 10% physical impairment. I would reverse and remand with directions.
On 16 May 1977, claimant suffered injuries to her left ankle, right leg, right wrist and hand, right rib cage, and dorsal spine when she slipped and fell on the employer's premises. Prior to her fall she had been continuously able to hold a job, had worked approximately five years for the employer, and had a history of preexisting psychiatric problems which were symptomatic but not disabling. Subsequent to her industrial injury, her attending physician, Dr. Barrios, reported that non-organic factors were playing a role in her symptoms and recommended psychiatric evaluation. During hospitalization in September of 1977, a psychiatric consultant, Dr. Escoto, recommended psychotherapy for acute depression. This recommendation was reiterated in October, but claimant continued to decline psychotherapy. On 3 November 1977, Dr. Barrios recommended that she return to work. However, when she attempted to return to her former employment on 7 November 1977, she was informed that her services were no longer desired. In February of 1978 claimant consulted a psychiatrist, Dr. Casademont, for treatment of her emotional problems. This treatment was authorized by the carrier and continued through 19 March 1980, at which time Dr. Casademont opined that claimant had reached maximum medical improvement with a psychiatric disability of the body as a whole in the range of 30-35%, only 25-30% of which the doctor attributed to the accident.
In his order finding that claimant's psychiatric problems did not arise out of her industrial accident, the deputy relied upon the testimony of Dr. Casademont, and concluded that claimant's psychiatric problems were triggered by her former employer's refusal to rehire her and did not arise out of the industrial accident. 1 The employer/carrier urge on appeal that Dr. Casademont's characterization of the firing establishes it as having independently caused claimant's psychiatric problems, and furnishes competent substantial evidence supportive of the deputy's finding.
The deputy's findings are presumed to be correct, and our appellate function is to determine whether the findings are supported by competent substantial evidence. Howard v. Green's Tractor Co., 290 So.2d 46 (Fla.1973). In my view, the finding that no psychiatric impairment is attributable to the accident is not so supported. Doctors Barrios and Escoto opined prior to the firing that the claimant...
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