Holiday Foliage v. Anderson

• Decision Date: 07 September 1994
• Docket Number: No. 93-1598,93-1598
• Citation: 642 So.2d 94
• Court: Florida District Court of Appeals
• Parties: 19 Fla. L. Weekly D1916 HOLIDAY FOLIAGE and Crawford and Company, Inc., Appellants, v. Emanuel ANDERSON, Appellee.

Page 94

642 So.2d 94

19 Fla. L. Weekly D1916

HOLIDAY FOLIAGE and Crawford and Company, Inc., Appellants, v. Emanuel ANDERSON, Appellee.

No. 93-1598.

District Court of Appeal of Florida,

First District.

Sept. 7, 1994.

Brian B. Bolton, of Langston, Hess and Bolton, P.A., Maitland, for appellants.

Douglas H. Glicken, of Douglas H. Glicken, P.A., Orlando, for appellee.

JOANOS, Judge.

The employer and servicing agent (e/sa) appeal an order of the Judge of Compensation Claims (JCC), awarding the claimant temporary total disability benefits, medical treatment, attorney's fees, costs, and interest. The issues are whether there is competent substantial evidence to support the JCC's findings that claimant sustained an aggravation of a pre-existing condition, and whether claimant is temporarily totally disabled as a result of the aggravation. We affirm in part and reverse in part.

The record reflects that in July 1989, claimant's right foot was severely injured in an automobile accident. The medical records and claimant's undisputed testimony establish that he received treatment for his right foot for approximately six months, then was released with no restrictions. In May 1991, claimant obtained a job as a metal press operator, an occupation which required him to stand during the work day. In July 1991, claimant left the metal press job and began employment with Holiday Foliage, the employer in this case. Claimant worked a 45-hour work week; his duties included mowing, rototilling with a walk tiller, and carrying boxes weighing fifty pounds. Claimant performed these tasks adequately, and took no time off from work.

On October 7, 1991, while stretching a canopy across sheds, claimant's right foot went into a hole. The incident occurred at the end of the work day, and was witnessed by three employees who helped claimant remove his foot. Claimant testified that his ankle "snapped," and that he felt immediate pain. The e/sa provided claimant with medical treatment until December 18, 1991, and paid temporary total disability benefits until January 20, 1992.

Claimant was incarcerated from November 15, 1991, until December 16, 1991, and from January 15, 1992, until October 7, 1992. On November 10, 1992, claimant filed a claim for the benefits here under review. The hearing on the claim was conducted February 19, 1993.

The medical evidence established that the industrial accident resulted in an acute exacerbation of claimant's 1989 right foot condition. Claimant's treating physician, and an orthopedic surgeon who saw claimant once for an examination, recommended surgery for claimant's right foot. On November 26, 1991, e/sa authorized surgery, but cancelled the surgery on December 18, 1991. Subsequently, e/sa concluded claimant's need for medical treatment and disability related to the 1989 injury, and terminated further medical care and disability benefits to claimant.

Claimant's treating physician placed him on temporary total disability (TTD) status on October 17, 1991. The doctor continued claimant's TTD status on December 18, 1991, the date he last examined the claimant. The e/sa sent a rehabilitation nurse to consult the treating physician concerning whether claimant's condition was attributable to his 1989 automobile accident, or to the 1991 compensable injury. The treating physician stated that claimant's problems were related "almost entirely to his injury in 1989." In his 1993 deposition, the doctor stated that unless claimant's condition had been followed medically from the date of the 1989 injury on, it would be impossible to determine objectively whether the 1991 industrial accident made his condition worse. Since claimant received no treatment for his right foot from 1989 until the new injury in 1991, such determination had to be made based on what the patient said.

The JCC found that claimant was entitled to continuing medical care and indemnity benefits as a result of the 1991 industrial accident, based on claimant's testimony regarding the condition of his foot prior to the industrial accident, and his increased symptomatology since the accident. The JCC awarded TTD benefits from January 21, 1992, to continue for so long as claimant remained TTD, and authorized medical treatment and surgery for claimant's right foot condition.

The evidence in this case is conflicting with respect to the compensability of the claim, and the degree of claimant's continuing disability. Such circumstances highlight the deference due a JCC's fact finding. The reviewing court is bound by the JCC's conclusions, even though the court may have reached a different conclusion based on the same evidence, unless the findings lack any substantial support in the record. Chicken 'N' Things v. Murray, 329 So.2d 302, 306 (Fla.1976); Rinker Materials Corporation v. Hill, 471 So.2d 119, 120 (Fla. 1st DCA 1985). In this vein, where the evidence is sufficient to support the JCC's interpretation of a physician's testimony, the decision will be affirmed, notwithstanding that the reviewing court could or would have viewed the evidence differently. Gomez v. Neckwear, 424 So.2d 106, 107 (Fla. 1st DCA 1982). Where the medical testimony and evidence is conflicting and paradoxical, it is the JCC's duty to resolve the conflict. Grillo v. Big "B" Ranch, 328 So.2d 429 (Fla.1976).

In this regard, the JCC should consider and evaluate both lay and medical evidence, and in a proper case, may give greater weight to physical evidence and lay testimony than is accorded to the scientific opinions of the experts. When the JCC relies on one as against the other, he should state reasons for doing so. Jeffers v. Pan American Envelope Co., 172 So.2d 577, 578 (Fla.1965). In a proper case, the JCC can rely upon lay testimony, even if it directly conflicts with medical testimony. 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 specific statutory requirements for the evidentiary predicate for certain determinations." Tampa Bay Moving Systems, Inc. v. Frederick, 433 So.2d 628, 630 (Fla. 1st DCA 1983).

Moreover, the reasonable medical probability necessary to establish a causal relationship between accident and disability may be established by medical or lay testimony. That is, lay testimony can establish the necessary relationship as to conditions and symptoms within the sensory experience and actual knowledge of the claimant, but it is insufficient as to conditions which are not readily observable, such as blood pressure and soft tissue injuries. Peters v. Armellini Express Lines, 527 So.2d 266, 269 (Fla. 1st DCA 1988); Osceola County Commissioners v. Hand, 458 So.2d 1134, 1135 (Fla. 1st DCA 1984); Decks, Inc. v. Wright, 389 So.2d 1074, 1076 (Fla. 1st DCA 1980). See also Teleflex, Inc. v. Arndts, 499 So.2d 45, 46 (Fla. 1st DCA 1986).

In the instant case, ambiguous and conflicting medical evidence was introduced with respect to a causal relationship between claimant's present need for medical treatment and the 1991 industrial injury. In Delgado v. Blanco & Sons Catering, 606 So.2d 658 (Fla. 1st DCA 1992), on similar facts, this court reversed the JCC's finding that Delgado's condition was no worse following a work altercation than it had been before, and that the surgery was not the result of the altercation. As has the claimant in this case, Delgado had a pre-existing condition for which surgery had been recommended, but the pre-existing condition did not interfere with Delgado's ability to perform all job duties on a full time basis. In Delgado, as here, the...