H & A Frank's Const., Inc. v. Mendoza, No. 90-3013

CourtCourt of Appeal of Florida (US)
Writing for the CourtKAHN
Citation582 So.2d 780
PartiesH & A FRANK'S CONSTRUCTION, INC. and CNA Ins. Co., Appellants, v. Antonia MENDOZA, Appellee. 582 So.2d 780, 16 Fla. L. Week. D1860
Docket NumberNo. 90-3013
Decision Date17 July 1991

Page 780

582 So.2d 780
H & A FRANK'S CONSTRUCTION, INC. and CNA Ins. Co., Appellants,
v.
Antonia MENDOZA, Appellee.
No. 90-3013.
582 So.2d 780, 16 Fla. L. Week. D1860
District Court of Appeal of Florida,
First District.
July 17, 1991.

Page 781

Daniel J. DeMay of Adams, Coogler, Watson & Merkel, West Palm Beach; and Marjorie Gadarian Graham, West Palm Beach, for appellants.

Jorge Lagarga of Wagner, Nugent, Johnson, Roth, Romano, Eriksen & Kupfer, West Palm Beach, for appellee.

KAHN, Judge.

The employer/carrier appeal from a final order of the Judge of Compensation Claims (JCC) awarding claimant temporary total disability (TTD). The issue before us is whether the JCC erred in accepting the deposition testimony of chiropractor Dr. Dexter DiMarco over the deposition testimony of Dr. Argentina Brito, claimant's general physician; Dr. Jeffrey Katzell, the orthopedic surgeon to whom her attorney referred claimant; Dr. Raymond Tronzo, the orthopedic surgeon whom employer/carrier provided when claimant wanted a second opinion; and chiropractor Joseph Pollak, who performed an independent medical examination on claimant. We hold that on the state of this record the JCC erred in accepting the testimony of Dr. DiMarco over the other doctors based on Yeargin Construction Co. v. Hutchinson, 547 So.2d 1269 (Fla. 1st DCA 1989). In Yeargin, this court held that the JCC erred in accepting the testimony of a chiropractor over that of three orthopedic surgeons without articulating the reasons for doing so in his order where the reasons were not apparent from the record.

A JCC has the discretion to determine credibility, resolve conflicts in evidence, and accept the testimony of one physician over that of several others. Id.; S and S Stove Repair, Inc. v. Dumas, 465 So.2d 644 (Fla. 1st DCA 1985); Jefferson Stores, Inc. v. Rosenfeld, 386 So.2d 865 (Fla. 1st DCA 1980). His discretion, however, is not unbridled. Although a JCC generally does not need to explain when he accepts the testimony of one doctor and rejects the testimony of another, he must state his reasons when: (1) the reason for the finding in the order is not apparent from the record; or (2) it appears that the JCC has overlooked or ignored evidence in the record. Buro v. Dino's Southland Meats, 354 So.2d 874 (Fla.1978); Curry v. Miami Dolphins, Ltd, 522 So.2d 1010 (Fla. 1st DCA 1988); South v. Heartland Employment & Training Administration, 527 So.2d 270 (Fla. 1st DCA 1988).

In the instant case, it is obvious from the order that the JCC did not overlook or ignore the deposition testimony of Dr. Brito, Dr. Katzell, Dr. Tronzo and Dr....

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16 practice notes
  • Chavarria v. Selugal Clothing, Inc., No. 1D00-3467.
    • United States
    • Court of Appeal of Florida (US)
    • February 3, 2003
    ...doctors"); Yeargin Constr. Co. v. Hutchinson, 547 So.2d 1269, 1271 (Fla. 1st DCA 1989) (same); H & A Frank's Constr. Co. v. Mendoza, 582 So.2d 780, 781-82 (Fla. 1st DCA 1991) 6. An appellate body's authority to apply the de novo standard has long been recognized in a wide variety of cases, ......
  • Stacy v. Venice Isles Mobile Home Park, No. 92-2328
    • United States
    • Court of Appeal of Florida (US)
    • April 27, 1994
    ...the JCC overlooked or ignored evidence in the record. Days Inn v. Thomas, 623 So.2d at 532; H & A Franks Construction, Inc. v. Mendoza, 582 So.2d 780 (Fla. 1st DCA 1991); Curry v. Miami Dolphins, Ltd., 522 So.2d 1010 (Fla. 1st DCA 1988). The reasons provided by the JCC must be logical and m......
  • Holiday Foliage v. Anderson, No. 93-1598
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 1994
    ...McCandless v. M.M. Parrish Construction, 449 So.2d 830, 833 (Fla. 1st DCA 1984). See also H & A Frank's Construction v. Mendoza, 582 So.2d 780, 782 (Fla. 1st DCA 1991). Specifically, the JCC, not a doctor, "is the finder and adjudicator of facts, including medical facts, subject only to spe......
  • Shaw v. Publix Supermarkets, Inc., No. 91-2547
    • United States
    • Court of Appeal of Florida (US)
    • December 1, 1992
    ...by deposition only, we are not in a position inferior to that of the JCC to interpret the record. H & A Frank's Constr., Inc. v. Mendoza, 582 So.2d 780, 781-82 (Fla. 1st E/C concede Dr. Borrero's determination of Claimant's ability to work was crucial to the JCC's finding, yet the doctor's ......
  • Request a trial to view additional results
16 cases
  • Chavarria v. Selugal Clothing, Inc., No. 1D00-3467.
    • United States
    • Court of Appeal of Florida (US)
    • February 3, 2003
    ...doctors"); Yeargin Constr. Co. v. Hutchinson, 547 So.2d 1269, 1271 (Fla. 1st DCA 1989) (same); H & A Frank's Constr. Co. v. Mendoza, 582 So.2d 780, 781-82 (Fla. 1st DCA 1991) 6. An appellate body's authority to apply the de novo standard has long been recognized in a wide variety of cases, ......
  • Stacy v. Venice Isles Mobile Home Park, No. 92-2328
    • United States
    • Court of Appeal of Florida (US)
    • April 27, 1994
    ...the JCC overlooked or ignored evidence in the record. Days Inn v. Thomas, 623 So.2d at 532; H & A Franks Construction, Inc. v. Mendoza, 582 So.2d 780 (Fla. 1st DCA 1991); Curry v. Miami Dolphins, Ltd., 522 So.2d 1010 (Fla. 1st DCA 1988). The reasons provided by the JCC must be logical and m......
  • Holiday Foliage v. Anderson, No. 93-1598
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 1994
    ...McCandless v. M.M. Parrish Construction, 449 So.2d 830, 833 (Fla. 1st DCA 1984). See also H & A Frank's Construction v. Mendoza, 582 So.2d 780, 782 (Fla. 1st DCA 1991). Specifically, the JCC, not a doctor, "is the finder and adjudicator of facts, including medical facts, subject only to spe......
  • Shaw v. Publix Supermarkets, Inc., No. 91-2547
    • United States
    • Court of Appeal of Florida (US)
    • December 1, 1992
    ...by deposition only, we are not in a position inferior to that of the JCC to interpret the record. H & A Frank's Constr., Inc. v. Mendoza, 582 So.2d 780, 781-82 (Fla. 1st E/C concede Dr. Borrero's determination of Claimant's ability to work was crucial to the JCC's finding, yet the doctor's ......
  • Request a trial to view additional results

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