Perez v. Tropicana Products, Inc., BK-355

• Decision Date: 31 October 1986
• Docket Number: No. BK-355,BK-355
• Citation: 11 Fla. L. Weekly 2309,496 So.2d 967
• Parties: 11 Fla. L. Weekly 2309 Jose PEREZ, Appellant, v. TROPICANA PRODUCTS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 967

496 So.2d 967

11 Fla. L. Weekly 2309

Jose PEREZ, Appellant, v. TROPICANA PRODUCTS, INC., Appellee.

No. BK-355.

District Court of Appeal of Florida First District.

Oct. 31, 1986.

Kathleen R. Hudson, St. Petersburg, for appellant.

Elizabeth M. Stanaland of Marlow, Shofi, Smith, Hennen & Smith, Tampa, for appellee.

MILLS, Judge.

Jose Perez appeals from an order of the deputy commissioner denying his claim for temporary benefits on the ground that Perez had not suffered an industrial accident. We affirm.

Perez suffered an injury to his lower back in February 1979. The parties stipulated that the last worker's compensation benefits for this injury were paid, and the last medical treatment therefor provided, in October 1979. On 17 August 1981, Perez' back was bothering him when he arrived at work and gradually worsened throughout the day so that he finally reported to the company nurse, who noted Perez' comment that "he hurt his back lifting bottles." He was sent to the hospital emergency room, whose records note "back pain onset while working." No notice of injury was filed nor did Perez receive any benefits. He returned to work, where he remained until 22 March 1982. He has not worked since that time.

Perez filed his first "claim for benefits" relative to the 1979 injury in April 1982; the claim was amended in September 1983 to state a claim for permanent total disability benefits and again in September 1984 requesting temporary benefits from 22 March 1982 forward. The E/C controverted the claim, relying on the statute of limitations. In a deposition taken before the scheduled hearing, Perez testified that he had had an accident in 1979 and reiterated that he had suffered one accident only.

Before the hearing could be held, in February 1985, Perez filed a claim for benefits relating to an accident allegedly occurring on 17 August 1981, requesting temporary benefits from 22 March 1982 and continuing. In a second deposition taken after this claim, Perez testified contrary to his first deposition that two accidents had occurred. However, he also stated that his pain was present before work on 17 August 1981, that it worsened gradually during the day, not suddenly following a particular incident, and that he had told the treating physician about the 1979 accident only, which he classified as "the cause of my pain." He testified further that he had filed no claim for any 1981 accident because "he didn't consider it an accident, the illness was from my first accident."

After a hearing on Perez' claims, the D/C entered an order finding that the claim for the 1979 accident was barred by the statute of limitations; this holding is not challenged on appeal. With regard to the 1981 "accident," the D/C stated that, based on Perez' testimony at the hearing and in his prior depositions, no accident had occurred on the date alleged.

As grounds for reversal of this order, Perez argues first that the D/C erred in failing to consider evidence contradicting his ultimate conclusion, namely, the notes of the company nurse and the hospital indicating an on-the-job injury. He further alleges that the order contains...