Jackson v. Dade County School Bd., AV-226

CourtCourt of Appeal of Florida (US)
Citation454 So.2d 765
Docket NumberNo. AV-226,AV-226
PartiesFrances JACKSON, Appellant, v. DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellees.
Decision Date24 August 1984

Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellant.

Steven Kronenberg, of Adams, Kelley & Kronenberg, Miami, for appellees.


In this workers' compensation case, Jackson appeals a deputy commissioner's order which denies and dismisses her claim. She contends that the deputy commissioner erred in rejecting the testimony of her psychiatrist, Dr. Mutter. We reverse and remand.

Claimant was injured in a compensable industrial accident on January 27, 1981. She was in an elevator which stopped abruptly, throwing her to the side of the elevator and jarring her back. Dr. Stein, an orthopedic surgeon, diagnosed acute lumboscral strain and treated claimant for this injury. By August 13, 1981, appellant had reached maximum medical improvement (MMI) from an orthopedic standpoint. However, claimant was examined by Dr. Mutter, the only psychiatric expert to testify in this case, who opined that claimant suffered from agitated depression causally related to her industrial accident, that she needed psychotherapy and hypnotherapy, and that she had not reached MMI from a psychiatric standpoint.

Concerning Dr. Mutter's testimony, the deputy commissioner found as follows:

I reject the opinions of Dr. Mutter for a variety of reasons, among which are the failure of the claimant to advise Dr. Mutter of her self-employment as a Shaklee distributor, her announced retirement as a school teacher, her high earnings as a Shaklee distributor, and my own observations of the claimant. All of these things have so lessened her credibility as to make that which she says unworthy of belief. In making these findings I have accepted the testimony of the private investigator, Juan Cayado, that the claimant told Cayado that she was making approximately $3,400 per month as a Shaklee distributor and that she had retired as a school teacher and did not wish to do that work any longer when she could make so much more money as a Shaklee distributor. It follows, therefore, that the claimant had financial reasons for not accepting and performing suitable employment with the School Board.

The deputy commissioner is, of course, entitled to reject claimant's testimony as unworthy of belief. See John Caves Land Development Co. v. Suggs, 352 So.2d 44 (Fla.1977); Barnett v. Lakeland Construction Co., 417 So.2d 834 (Fla. 1st DCA 1982). A deputy commissioner can reject expert testimony, even uncontradicted expert testimony, where the expert's opinion is based on assumptions not supported by the evidence. Arkin Construction Co. v. Simpkins, 99 So.2d 557 (Fla.1957). A deputy commissioner can reject expert testimony and base a decision on lay testimony and other evidence where the question concerns matters which are within the knowledge and sensory experience of lay persons, e.g., the existence and location of pain, sequence of events and actual ability or inability to perform work. Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980). Some issues, however, involve essentially medical questions which are most persuasively answered by medical experts, e.g., whether a claimant has reached MMI. Sanlando Utility Corp. v. Morris, 418 So.2d 389 (Fla. 1st DCA 1982). Where the question is essentially a medical one, a deputy commissioner should offer a sufficient reason for rejecting expert medical testimony, especially if such testimony is unrefuted. Castro v. Florida Juice Division, 400 So.2d 1280 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982). In the instant case, we find the stated reasons for the rejection of Dr. Mutter's testimony insufficient.

Although Dr. Mutter, at the time of his examination, was unaware of the claimant's current vocational activities and did not know how much she earned, Dr. Mutter's opinion did not change when he was informed of these matters on cross-examination. Dr. Mutter appeared to be uninterested in whether or not claimant was motivated to return to work. When asked if he formed any impression as to whether or not claimant was motivated to return to work he replied, "No, not at that point. My examination was more specifically centered towards determining whether or not she had a psychological problem, what it was related to, and what kind of treatment would be indicated to help her with that." In short, the assumptions and facts underlying Dr. Mutter's opinion appear to be wholly unrelated to the facts recited by the deputy commissioner in rejecting the doctor's testimony. Dr. Mutter indicated that his suggested treatment was intended to help claimant alter some of her physical symptoms and alleviate her mental problems. Dr. Mutter's opinion that claimant continues to have psychological problems was in small part bolstered by Dr. Stein's note from January 1983, that claimant appeared anxious and depressed.

The facts of the instant case, which involve the relationship between a claimant's credibility and a doctor's opinion, are remarkably similar to those in Allman v. Meredith Corp., 451 So.2d 957 (Fla. 1st DCA 1984). In that case the deputy commissioner also rejected a doctor's opinion because the claimant was untruthful, and the deputy commissioner found that the doctor was totally unfamiliar with claimant's true physical abilities. This court stated that, although a claimant's lack of candor about his disability might preclude an award of compensation benefits, Allman's lack of credibility did not constitute an adequate basis for the wholesale rejection of the only competent, substantial evidence as to the cause of his condition. In the instant case, the deputy commissioner did not have the benefit of our opinion in Allman at the time he rendered his decision.

Although we find the deputy commissioner's stated reasons for rejecting Dr. Mutter's opinion are insufficient, the wording of the order implies that the deputy commissioner had other reasons for rejecting the opinion which he did not state. Therefore, we remand this case to the deputy commissioner to reconsider Dr. Mutter's testimony in light of this opinion and Allman. 1


WIGGINTON, J., concurs.

MILLS, J., dissents with opinion.

MILLS, Judge, dissenting:

I dissent. I would affirm.

The deputy's order is supported by competent substantial evidence and the law. I adopt the deputy's order in part as my dissent. It is as follows:

3. The claimant sustained a compensable injury on January...

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