Luttrell v. Roger Holler Chevrolet

• Decision Date: 15 October 1993
• Docket Number: No. 92-786,92-786
• Citation: 625 So.2d 921
• Parties: 18 Fla. L. Weekly D2265 Robert LUTTRELL, Appellant, v. ROGER HOLLER CHEVROLET, and Crum & Forster, Appellees.
• Court: Florida District Court of Appeals

Page 921

625 So.2d 921

18 Fla. L. Weekly D2265

Robert LUTTRELL, Appellant, v. ROGER HOLLER CHEVROLET, and Crum & Forster, Appellees.

No. 92-786.

District Court of Appeal of Florida First District.

Oct. 15, 1993.

Bill McCabe, Longwood, for appellant.

Mark S. Spangler, Rissman, Weisberg, Barrett & Hurt, P.A., Orlando, for appellees.

ERVIN, Judge.

Claimant appeals from a workers' compensation order denying his claim for indemnity benefits from the date of maximum medical improvement (MMI), incidental costs, penalties, interest, and attorney's fees, arguing that in denying the claim, the judge of compensation claims (JCC) erroneously relied upon the medical testimony of one of claimant's treating physicians who had opined that claimant's industrial accident of September 28, 1989 was only a temporary exacerbation of a preexisting condition, and that there was no resulting permanent impairment (PI) associated with the accident. We affirm in part, reverse in part, and remand for further consistent proceedings.

On September 28, 1989, claimant, who suffered from preexisting degenerative disc disease, injured his lower back while installing a dash carrier on an automobile. During the course of claimant's medical care, he received treatment from six different physicians, three of whom related claimant's lumbar condition to his industrial accident, opined that claimant had reached MMI with various percentages of PI, and placed restrictions on claimant's employment activities. One of those who did not so conclude, Dr. D'Erano, a chiropractor, while stating that there was no specific event at work which created any situation of permanent injury, nevertheless believed that claimant's duties at work temporarily aggravated his preexisting condition. He also placed limitations on claimant's work performance. Another physician, Dr. Broom, an orthopedic surgeon, initially testified by deposition that claimant had suffered a sprain to his lower back as a result of the industrial accident, which permanently aggravated his prior condition, and that he was at MMI as of August 14, 1991, with a five percent PI. Dr. Broom, as well as all the physicians who were asked to give opinions regarding claimant's condition, was, however, unaware from the history claimant provided that claimant had sustained an earlier injury to his lower back. Later, over objection, Dr. Broom was asked to review certain medical records in the possession of Adjustco Inc., a carrier furnishing workers' compensation insurance to the employer in 1987, relating to an October 1987 injury to claimant's lower back while he was working for the same employer. After doing so, Dr. Broom stated that it would be extremely difficult for him to relate claimant's PI solely to his later industrial injury, and that it was more likely that the 1989 accident only temporarily exacerbated claimant's prior condition, thereby resulting in no PI attributable to the 1989 industrial injury alone. He therefore opined that claimant's PI, as related to the 1989 industrial injury, was zero percent, and he concurred with another physician's MMI date of September 18, 1990. ¹

At the hearing, claimant testified that he had no symptoms or complaints involving his lower back before September 1989, and that in 1987 he suffered an injury to his neck and upper shoulder while working for the employer. In contradiction to claimant's testimony, the employer/carrier (E/C) presented the testimony of the claims supervisor for Adjustco Inc., who recounted that he had processed a claim appellant filed resulting from the 1987 accident. He brought the records pertaining to that injury to the hearing, including a notice of injury form claimant signed referring to a lower back injury, as well as insurance claim forms covering numerous visits to Dr. Seltzer, the then-treating chiropractor. Over claimant's hearsay objection, the JCC allowed the records into evidence, holding that they were admissible for the purpose of impeachment, and that they complied as well with hearsay exceptions set forth under Sections 90.803(6) (business records), 90.803(18) (admissions by a party opponent), and 90.804(2) (declarations against interest), Florida Statutes (1989).

The notice of injury form, signed by Luttrell in October 1987, and verified by him at the hearing, stated that while he was removing a windshield, he strained his groin and lower back. A workers' compensation history Luttrell signed on October 16, 1987, also recited the back injury. Numerous reports from Dr. Seltzer, beginning in 1987 and continuing through 1988 and March 1989, refer to claimant's low back pain. A final report stated that claimant had reached MMI as to the 1987 injury on March 6, 1989; the report does not, however, indicate any amount of PI claimant sustained.

In his final order denying the claim for benefits pertaining to the 1989 accident, the JCC, after considering all of the evidence, found claimant's testimony "wholly unbelievable" and observed that Dr. Broom was the only physician who was aware of claimant's complete medical history involving both the 1987 and 1989 injuries. The JCC therefore accepted Dr. Broom's testimony over that of other physicians who had testified to the contrary, because they had not been given a complete history due to "claimant's intentional misrepresentations on his prior medical history." Accordingly, based upon the testimony of Dr. Broom, the claim for wage loss (WL) was denied.

Appellant first contends that the JCC erred in admitting into evidence, over claimant's hearsay objection, Dr. Seltzer's medical records relating to claimant's 1987 industrial accident. We agree that the JCC did not err in so ruling. The documents which claimant himself signed were properly admissible under Section 90.608(1)(a), Florida Statutes (1989), which allows the introduction of a witness's prior inconsistent statements for the purpose of impeachment. They were also admissible under section 90.803(18)(a), which permits the introduction of a statement offered against a party if it is the party's own statement in either an individual or a representative capacity. Thus, even if it could be said that it was error to admit the remaining business records of Dr. Seltzer, which involved no direct admissions by claimant, their introduction should, in our judgment, be considered only harmless error because they were largely cumulative to other admissible documents. See Quinn v. Millard, 358 So.2d 1378, 1383 (Fla. 3d DCA1978).

The remaining records, consisting of insurance claim forms from Adjustco's files and Dr. Seltzer's progress reports to the carrier, were admissible under section 90.803(18)(c), permitting the admission into evidence of "[a] statement by a person specifically authorized by [a party] to make a statement concerning the subject." See Charles W. Ehrhardt, Florida Evidence Sec. 803.18(c), at 663-64 (1993 ed.). The insurance claim forms at issue contained the claimant's authorization for "the release of any medical information necessary to process this claim." The clear import of this statement was to permit Dr. Seltzer to convey his diagnosis of lumber IVD displacement to Adjustco, as well as to provide it with his progress reports. See United States v. Duncan, 919 F.2d 981, 987 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991) ("A patient routinely authorizes the release of medical records for use by insurance companies. A medical provider without express authority to release information would be acting as the patient's agent in obtaining payment of medical expenses from insurance companies.").

While we find no error in the admission of the above documents, we are nonetheless of the opinion that the JCC erred in denying the claim based upon the opinion testimony of Dr. Broom. Although many of the findings the JCC recited in his order are supported by competent, substantial evidence, e.g., that claimant lied when he testified that he had suffered no prior back injury before the September 1989 accident; that claimant failed to advise any of his treating physicians that he had any back pain before the 1989 accident; that Dr. Broom was the only physician who became aware of the claimant's complete history; nevertheless, the JCC's essential finding, relying upon Dr. Broom's testimony that the 1989 injury only temporarily exacerbated claimant's preexisting condition, and that claimant suffered no PI attributable to the 1989 injury alone, was not, in our judgment, solidly rooted in a firm foundation of fact, ² because this finding was not supported by either the substance of Dr. Broom's testimony or other relevant evidence. See Tucker v. Agrico Chem. Co., 476 So.2d 729, 731 (Fla. 1st DCA 1985). Moreover, in that the JCC's findings depended on medical evidence contained within the physicians' reports and deposition testimony, our vantage point as a reviewing court is...