Morey v. Harper, 88-1506

• Decision Date: 07 April 1989
• Docket Number: No. 88-1506,88-1506
• Parties: 14 Fla. L. Weekly 863 Arthur MOREY, Appellant, v. Carl HARPER, Appellee.
• Court: Florida District Court of Appeals

Page 1285

541 So.2d 1285

14 Fla. L. Weekly 863

Arthur MOREY, Appellant, v. Carl HARPER, Appellee.

No. 88-1506.

District Court of Appeal of Florida,

First District.

April 7, 1989.

Rehearing Denied May 4, 1989.

David R. Lewis and Joshua A. Whitman of Lewis, Paul, Isaac & Castillo, P.A., Jacksonville, for appellant.

Carl Scott Schuler of Tygart & Schuler, P.A., Jacksonville, for appellee.

ZEHMER, Judge.

Arthur Morey appeals a final judgment for Carl Harper, appellee, and the order denying his motion for new trial in this personal injury action for damages he sustained in an automobile accident. Morey contends on appeal that he presented uncontroverted medical evidence at trial that he sustained a permanent injury as a result of Carl Harper's negligent operation of a motor vehicle and that such evidence entitled him to a directed verdict on the issue of whether he sustained a permanent injury under section 627.737(2), Florida Statutes (1985). Alternatively, he contends that such evidence entitles him to a new trial. We reverse.

The evidence showed that on May 14, 1985, appellant was involved in an automobile accident with appellee. He sued appellee, alleging that appellee's negligent operation of a motor vehicle caused the accident and caused him to sustain a permanent injury within a reasonable degree of medical probability. Appellant testified that the accident immediately caused his right hand, wrist, and lower arm to swell, and caused pain in his right ankle and back. With regard to his prior medical history, appellant testified at trial that he had previously fractured his right wrist in July of 1984, fractured his tailbone in 1980 or 1981, and hurt his back in another automobile accident 10 to 15 years ago.

To prove that the accident resulted in permanent injury, appellant presented the deposition testimony of Drs. Esquivia-Munoz, Flinchbaugh, and Sharf, all of whom are orthopedic surgeons. Dr. Esquivia-Munoz testified that at the time of appellant's initial visit in May of 1985, he complained of pain in his right wrist, in the back of his neck, and between his shoulder blades, and that appellant advised him that he previously had problems with his cervical spine and had been treated for those symptoms. Dr. Esquivia-Munoz's examination revealed that appellant suffered from arthritis and a scoliosis deformity in the cervical spine. He also diagnosed a fractured wrist. He opined that both of the cervical spine conditions are permanent and pre-existed the accident. He testified that he did not know whether the accident aggravated the pre-existing arthritic condition, but that it did not aggravate the pre-existing scoliosis. Dr. Esquivia-Munoz testified that the accident caused appellant to fracture two bones in his right wrist, but he did not render an opinion as to the permanency of the wrist condition.

Dr. Flinchbaugh testified that he first examined appellant in August of 1985, and that appellant's initial complaints were pain in his neck, low back, and right wrist. He stated that appellant gave him a history of the subject accident, but stated that prior to the accident he had no neck or low back symptomatology. Dr. Flinchbaugh stated that he diagnosed appellant's problems as cervical, thoracic and lumbar strain and sprain, bilateral thoracic outlet syndrome, a healed fracture involving the distal radius in the right wrist, early degenerative joint disease involving the cervical spine, and inflamed tendons across the top of his right wrist. He stated that, based on the history of the accident and the lack of prior neck or low back symptoms, it was his opinion that all of these problems were related to the accident. Dr. Flinchbaugh testified that appellant reached maximum medical improvement on November 13, 1986. He opined that as a result of the accident appellant sustained a permanent injury to his neck and back that constituted a 5% permanent impairment referable to his whole person. He stated that he did not take appellant's wrist into account in reaching this conclusion. Dr. Flinchbaugh opined that appellant had not sustained any permanent injury to his wrist. ¹ When asked whether his opinion regarding causation would change if he were told that appellant had neck, back, and wrist problems prior to the accident, Dr. Flinchbaugh testified that he would not be able to opine what percentage of impairment came from what source. He stated that this different history would not change his opinion with regard to the permanency of the injuries.

Dr. Sharf, an orthopedic surgeon, examined appellant in August of 1987 pursuant to a court-ordered independent medical examination. He testified that he diagnosed appellant as suffering from carpal tunnel syndrome in both wrists, which was related to the accident, degenerative joint disease of the thoracic spine, which was aggravated by the accident, and a healed lunate fracture. He opined that appellant suffered a 5% permanent impairment referable to the whole person as a result of the accident. Dr. Sharf testified that appellant did not give him a history of any prior accidents, but did tell him that he had suffered from pain in his neck and back area for a period of years before the accident. Dr. Sharf was not asked whether a history of prior injury to this wrist would cause him to change his opinion regarding the permanency of the injury caused by the subject accident.

At the close of the evidence, appellant moved for a...