McCandless v. M.M. Parrish Const., AR-319

• Decision Date: 16 April 1984
• Docket Number: No. AR-319,AR-319
• Parties: Stanley McCANDLESS, Appellant, v. M.M. PARRISH CONSTRUCTION and Corporate Group Service, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 830

449 So.2d 830

Stanley McCANDLESS, Appellant, v. M.M. PARRISH CONSTRUCTION and Corporate Group Service, Inc., Appellees.

No. AR-319.

District Court of Appeal of Florida First District.

April 16, 1984.

Rehearing Denied May 17, 1984.

James Moran of Law Offices of Barton, Cox & Davis, Gainesville, for appellant.

Jack A. Langdon of Jones & Langdon, P.A., Gainesville, for appellees.

SHIVERS, Judge.

In this workers' compensation case, McCandless appeals the order of the deputy commissioner which denies his claim for additional benefits. Appellant contends that the deputy commissioner erred in determining that appellant's psychiatric condition was not causally related to his industrial accident, in determining that appellant reached maximum medical improvement (MMI) on May 20, 1980, and in determining that appellant was not entitled to temporary disability benefits. Appellant also alleges error in the deputy commissioner's finding that appellant's request for examination and treatment by Sister Kenny Institute was in the nature of a petition for modification and that there were no changes in circumstances since the entry of a prior order to justify a modification. We find merit in these contentions and, therefore, reverse and remand.

Claimant was born in 1941 and has a seventh grade education. He has worked in construction all his life, beginning as a common laborer and advancing to rough carpenter by taking part in an apprentice program at night. On January 5, 1979, claimant suffered a compensable industrial injury to his lower back. Claimant eventually came under the care of Dr. Freeman, a neurosurgeon, who performed surgery to correct a free fragment disc rupture. Claimant began to improve after surgery, but this improvement reached a plateau short of the expectations of Dr. Freeman and claimant. Claimant continued to have low back pain and pain in his right leg. Dr. Freeman placed restrictions on claimant consisting of not lifting more than 50 pounds and not bending or lifting repetitively. Even so, Dr. Freeman testified that claimant might have symptomatic pain conducting any activity and that the only way for claimant to avoid pain would be to stay in bed continuously. Dr. Freeman testified that claimant reached MMI from his surgery on May 20, 1980.

Claimant attempted to return to work as a rough carpenter in February 1980, and worked until October 1980, when he was laid off because he could no longer do the job. Because of claimant's continued pain, a number of measures were taken by Dr. Freeman. In June 1980, claimant was prescribed a TENS unit. In September of 1980, a back pain clinic was prescribed and claimant was placed in a rehabilitation program. In October 1980, an epidural block was attempted, which helped only temporarily. In January 1981, claimant was placed in a pantaloon spica cast. It was felt that if the cast improved claimant's condition, then fusion surgery might be indicated. The spica cast produced improvement in claimant's leg pain and some improvement in the back pain. The pain returned, however, following removal of the cast. At this point, claimant and Dr. Freeman began discussing the options of a surgical fusion and a surgical severing of claimant's leg nerve. Prior to any surgery, Dr. Freeman recommended that claimant be sent to the Sister Kenny Institute (Sister Kenny) in Minneapolis which specializes in failed back surgery cases. The carrier, however, disapproved the trip to Sister Kenny and proposed that claimant go to Cathedral Rehabilitation Center (Cathedral) in Jacksonville. A hearing was held on this matter and the deputy commissioner entered an order which stated, "that the employer/carrier has been at all times ready and willing to provide adequate medical care in the state of Florida and is not required to furnish out-of-state medical care and attention, unless it is shown that local treatment is not available. There has been no such showing." This order was entered on October 20, 1981, and was not appealed.

Claimant went to Cathedral in November 1981, but was advised that there was nothing further which Cathedral could do for his low back and leg pain. Cathedral referred claimant back to Dr. Freeman. Dr. Freeman felt that the Cathedral evaluation did not accomplish the results he desired, and he again recommended that claimant be seen at Sister Kenny.

Claimant testified that because Cathedral could do nothing for him, he became depressed. Claimant suffered from severe depression, began drinking heavily, and began experiencing marital problems. Claimant requested psychiatric care from the employer/carrier who refused. However, claimant was referred by a vocational rehabilitation counselor to Dr. Stiefel, a psychiatrist, who began treating him in October 1982. Dr. Stiefel diagnosed neurotic depression, and he testified that the depression was caused by claimant's frustration, continued pain, inability to work and be productive, and sexual problems which were secondary to his back pain. Dr. Stiefel opined that all of claimant's psychiatric problems were a result of his accident, subsequently surgery, and the continued pain. Dr. Stiefel further stated that claimant had not yet reached MMI from a psychiatric standpoint, that claimant was psychologically temporarily totally disabled, and that he had been so for several months.

Rehabilitation counselor Skelly testified that she began seeing claimant in February 1981. At first claimant was very cooperative, but by June 1982 claimant was depressed, drinking, and not fully cooperative. She testified that claimant went through a period of depression when he and his wife were having problems, and that it was hard to work with claimant on vocational rehabilitation while he had these problems.

The employer/carrier had paid claimant TTD benefits through August 23, 1982, at which time benefits were terminated by the employer/carrier due to claimant's alleged uncooperativeness with the rehabilitation counselor. Claim was made for psychiatric care, TTD benefits, and treatment at Sister Kenny. At the hearing, the employer/carrier contended that claimant's psychiatric problems were not a result of the accident. Subsequent to the hearing, the deputy commissioner entered the order sub judice which finds that there was a lack of showing that the psychiatric condition was a result of the accident rather than a result of other personal domestic problems. The order also finds that claimant reached MMI on May 20, 1980, and that there had been no substantial change in circumstances since the entry of the October 1981 order to justify a modification of that order to allow for examination and treatment at Sister Kenny Institute.

Turning to appellant's first point, we find a lack of competent substantial evidence in this record to support the deputy commissioner's finding regarding the causal relationship of claimant's psychiatric problems and the industrial accident. Claimant testified that he began feeling depressed because he was told by Cathedral that there was nothing which could be done for him. This testimony was essentially corroborated by the testimony of claimant's wife. Although claimant testified to marital problems and that his wife had left him for two weeks in August 1982, there is no evidence that the marital difficulties or domestic situation of claimant caused his psychological problems. Rather, based on the sequence of events and the testimony of Mrs. McCandless, it would appear that claimant's depression and heavy drinking were a causative factor in the marital problems. The testimony of rehabilitation counselor Skelly also tends to corroborate the testimony of claimant and his wife. Ms. Skelly stated that when claimant got back from Cathedral he was very depressed because there was nothing Cathedral could do for him. She stated that it was impossible to rehabilitate claimant vocationally because of his psychological problems. Although Ms. Skelly focused primarily on claimant's marital problems in discussing his psychological condition, she offered no testimony on the causation of the psychological or marital problems.

The only medical evidence offered concerning claimant's psychiatric problems was that of Dr. Stiefel. Dr. Stiefel testified unequivocally that claimant's psychiatric problems were a result of his accident, subsequent surgery, and resulting continued pain.

The deputy commissioner, as trier of fact, may judge the credibility of witnesses appearing before him and reject their testimony in whole or in part. Brown v. Race & Race, 413 So.2d 91 (Fla. 1st DCA 1982). It is also true that, under certain circumstances, a deputy commissioner can rely upon lay testimony even if it directly conflicts with medical testimony. Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959). ¹ In the instant case however, there is no conflict between the medical testimony and the lay testimony, and there is no indication in the order or the record that the deputy commissioner doubted the credibility of any of the witnesses. Further, it is an abuse of discretion for the deputy to reject uncontroverted medical testimony without a reasonable explanation. Polk Nursery Co., Inc. v. Riley, 433 So.2d 1233 (Fla. 1st DCA 1983); see Weaver v. Gold Kist, Inc., 449 So.2d 829 (Fla. 1st DCA 1984); Castro v. Florida Juice Division, 400 So.2d 1280 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982); USA-1 Building Services v. Bowen, 380 So.2d 481 (Fla. 1st DCA 1980). Where the testimony and evidence are uncontradicted, a finding contrary to the manifest weight of such testimony and evidence is not supported by competent substantial evidence. Standard Oil Co. v. Gay, 118 So.2d 212 (Fla.1960); see Willingham v. Boynton Service Corp., 383 So.2d 710 (Fla. 1st DCA), rev. denied, 392 So.2d 1372 (Fla.1980).

In the instant case, the deputy commissioner's finding of no causal relationship between the industrial...