Jones v. Citrus Cent., Inc., BT-33

• Decision Date: 02 February 1989
• Docket Number: No. BT-33,BT-33
• Citation: 14 Fla. L. Weekly 316,537 So.2d 1123
• Parties: 14 Fla. L. Weekly 316 Aaron JONES, Appellant, v. CITRUS CENTRAL, INC., and Professional Administrators, Appellees.
• Court: Florida District Court of Appeals

Page 1123

537 So.2d 1123

14 Fla. L. Weekly 316

Aaron JONES, Appellant, v. CITRUS CENTRAL, INC., and Professional Administrators, Appellees.

No. BT-33.

District Court of Appeal of Florida,

First District.

Feb. 2, 1989.

Howard G. Butler, Meyers and Mooney, Orlando, for appellant.

Thomas H. McDonald, Cooper, Rissman, Weisberg, Barret & Hurt, Orlando, for appellees.

ZEHMER, Judge.

Aaron Jones appeals an order denying his claim for workers' compensation benefits on the ground that he did not sustain a compensable injury. Claimant contends that undisputed, unrebutted evidence causally related his injury to an industrial accident that occurred during the course of his employment, and seeks reversal because the employer and carrier called no witnesses and presented no evidence to contradict and thereby cast doubt on the veracity of his evidence. The deputy commissioner's ruling was premised on his rejection, for lack of credibility, of the claimant's testimony that he was injured on the job. The stated grounds for rejecting claimant's testimony for lack of credibility are that claimant did not report the accident the day it occurred, he did not report the accident or injury the next day when he called in sick, and parts of claimant's testimony were inconsistent with other parts of his testimony and the initial medical report. Careful review of the record fails to reveal any such inconsistencies and leads us to conclude that the deputy's rejection of claimant's testimony for lack of credibility was clearly arbitrary and unreasonable. Therefore, we reverse.

Claimant, an employee of eighteen years with this employer, testified on deposition and at the hearing to the following version of the facts. While loading heavy material on an assembly line at work he twisted his lower back. The incident occurred a few minutes before quitting time on July 1, 1986, but because it did not cause much immediate pain, he did not report it to anyone at that time. After he arrived home his back began hurting badly. The next morning his back was still hurting, but he believed it would improve with rest, so did not go to work; he did call in and advise office personnel that he was sick and hurting without mentioning the back injury. ¹ The following morning, July 3, he reported his back injury to three of his supervisors and they sent him to the emergency room at Florida Hospital for an examination. Claimant was scheduled for a three-week vacation from July 3 to July 25 and he did not return to work immediately. A death occurred in his family and he drove to Atlanta to help his mother; however the drive increased the soreness in his back, so he spent most of the 7 or 8 days in Atlanta lying down. On July 25, 1986, claimant returned to Florida Hospital emergency room complaining of back pain. The examining physician recommended that he see a back specialist, but the particular specialist he recommended could not see claimant until September 27. Claimant called work to advise them that he could not return to work from his vacation because his back was still sore and he did not have a doctor's release to work. On July 29, 1986, the employer "fired" claimant. Claimant requested a meeting with the employer to determine the reason for the termination, and at that meeting the employer referred him to Dr. Scarlotos.

Claimant first saw Dr. Scarlotos on August 5, 1986. He found the claimant cooperative and noted the initial diagnosis was lumbro-sacral strain and degenerative disc disease at L5-S1, which was visible on x-ray. He ordered a CAT scan, which was performed in September 1986 and revealed a disc herniation at L5-S1. He also performed a confirming myelogram. Dr. Scarlotos opined there was a causal relationship between the herniated disc and the July 1, 1986 industrial accident described by claimant. He explained that the accident either caused the herniated disc or aggravated its symptomatic condition, and that the herniated disc was causing most of claimant's problems, although some of the degenerative changes were associated with pre-existing degenerative disc disease. He found that claimant had reached maximum medical improvement, without specifying a date, and assigned claimant a rating of 5 percent impairment of the body as a whole. Therefore, Dr. Scarlotos concluded, claimant must find lighter work to avoid re-injuring his back. He last saw claimant on November 14, 1986.

Claimant returned to work on November 18, 1986, and is performing the same job, although he tries to avoid lifting with the assistance of fellow employees.

The employer and servicing agent first controverted compensability on September 15, 1986. At the hearing they cross-examined the claimant's witnesses and stipulated to certain documents going into evidence, but did not otherwise present any testimony. The deputy commissioner entered a final order on March 13, 1987 denying the claim on grounds the claimant "did not sustain a compensable injury from any accident arising out of and in the course of his employment." (R. 135). The order continued:

Making this finding, I have carefully considered the claimant's testimony that he was injured on the job, but reject same as not credible. Additionally, his testimony is inconsistent with other parts of his testimony and the initial medical report.

The claimant testified that he told no one of his accident or injury the day it supposedly occurred. He also testified that the next day, he called the employer to report that he would not be coming in that day because he was "sick." He admittedly did not mention his back, nor did he state that he was injured on the job.

I have also relied upon the initial medical report which states "no known trauma."

I have considered the testimony of Dr. Scarlotos. However, the opinions of Dr. Scarlotos with regards to the relation between the claimant's condition and the history of an industrial injury are based upon the accuracy of that history. Since I have rejected the veracity of this history, Dr. Scarlotos's opinion on causality is irrelevant. Furthermore, I note that Dr. Scarlotos was unable to testify specifically that he believed, within a reasonable medical probability, that the alleged industrial accident was causally related to the claimant's condition.

(R. 135).

We note at the outset that claimant's testimony at the hearing was rather abbreviated because his deposition was in evidence and the deputy commissioner directed that claimant not duplicate matters covered in the deposition. The hearing transcript contains only two pages of cross-examination of claimant at the hearing and two pages of cross-examination at the deposition, with no attempt to impeach claimant on the basis of prior inconsistent statements. The majority of claimant's testimony was by deposition, and this court is in as good a position as the deputy commissioner to evaluate the credibility of a witness's deposition testimony. Romero v. Waterproofing Systems of Miami, 491 So.2d 600 (Fla. 1st DCA 1986); Poorman v. Muncy & Bartle Painting, 433 So.2d 1371 (Fla. 1st DCA 1983).

The only issue on this appeal is whether the deputy commissioner's rejection of claimant's explanation of his injury at work on July 1 based on lack of credibility constitutes reversible error. We note that "questions regarding the credibility of witnesses are solely within the province of the [deputy commissioner] and his resolution of those questions will not be reversed unless clearly arbitrary and unreasonable." John Caves Land Development Co. v. Suggs, 352 So.2d 44, 45 (Fla.1977). It is also appropriate to the resolution of this appeal to recall Justice Terrell's discussion of the claimant's burden of proof in a workers' compensation proceeding:

I think the facts as revealed by the findings of the deputy commissioner are ample to show that the deceased was engaged in his employer's business at the time he was killed. In such cases it is essential that claimant prove or show a state of facts from which it may be reasonably inferred that deceased was engaged in his master's business when the accident resulting in his injury took place. This court is committed to the doctrine that in making such proof the claimant is not bound by the preponderance of the evidence rule or the rule of proof beyond and to the exclusion of a reasonable doubt. Sanford v. A.P. Clark Motors, Fla.1950, 45 So.2d 185. These rules grew out of the necessity for orderly procedure in reaching and litigating issues in civil and criminal cases.

Workmen's compensation is a complete departure from the civil and criminal code; the issues are different and require a different procedure to resolve them. As heretofore stated, in workmen's compensation, it is essential that claimant prove or show a state of facts from which it may be reasonably inferred that deceased was engaged in his master's business when the accident resulting in his injury took place. If the evidence to establish such a state of facts is competent and substantial and comports with reason or from which it may be reasonably inferred that deceased was engaged in his master's business when he was injured, it is sufficient.

Evidence to show a state of facts from which a conclusion may be reasonably inferred or that is substantial and comports with...