Peterson v. Georgia-Pacific Corp., GEORGIA-PACIFIC

• Decision Date: 15 July 1987
• Docket Number: GEORGIA-PACIFIC,No. BO-225,BO-225
• Citation: 510 So.2d 1015,12 Fla. L. Weekly 1711
• Parties: 12 Fla. L. Weekly 1711 David PETERSON, Appellant, v.CORPORATION, Self Insured, Appellee.
• Court: Florida District Court of Appeals

Page 1015

510 So.2d 1015

12 Fla. L. Weekly 1711

David PETERSON, Appellant, v. GEORGIA-PACIFIC CORPORATION, Self Insured, Appellee.

No. BO-225.

District Court of Appeal of Florida,

First District.

July 15, 1987.

Alex D. Littlefield, Jr., of Barton, Davis & Fernandes, Gainesville, for appellant.

Jack A. Langdon, of Jack A. Langdon, P.A., Gainesville, for appellee.

MILLS, Judge.

Peterson appeals an order of the deputy commissioner awarding temporary total disability benefits for the limited period between 20 February and 8 April 1986. Georgia-Pacific Corporation, the self-insured employer (G-P), cross-appeals from the denial by the deputy of its defense that Peterson fraudulently misrepresented his physical condition on the employment application. We reverse on the appeal and affirm on the cross-appeal.

On 13 March 1985, Peterson injured his low back when he slipped on wet scaffolding. He did not see a doctor after the accident, but rather a physician's assistant, Mr. Knight. Peterson was treated conservatively and released to light duty on 3 April 1985. The light duty slip said nothing about plans to release Peterson to full duty on any given date; Knight's office progress notes indicate only that "light duty should be for approximately 2 weeks (4/15/85)."

On 15 April, after two weeks of light work, G-P told Peterson to return to Knight's office for an assessment of his physical condition. When Peterson arrived at the office, the receptionist handed him a release to full duty; he underwent no physical examination and indeed never saw Knight. Knight first testified that Peterson had requested the full duty slip, but later amended that testimony to indicate that "someone" had come into the office and asked that a full duty slip be prepared. He did not see who it was and didn't know that it was Peterson. As soon as Peterson gave the full duty slip to G-P, he was fired. He has not worked since that discharge and does not dispute the deputy's finding that any work search was inadequate.

On 15 May 1985, Peterson was seen by a neurologist, Dr. Feussner, at the behest of G-P, who paid him TTD benefits from 15-21 May during the time Feussner was evaluating him. A CT scan revealed signs of a herniated disc at L-5, S-1, but according to Feussner, a confirmatory myelogram ruled out a herniated disc. After the initial 15 May visit, Feussner's office notes indicated that Peterson "should not return to work until re-exam"; on 4 June that he was "not ready to go to work yet"; and on 18 July that he was "released to light duty".

On 18 October 1985, Peterson was examined by Dr. Gustin for purposes of the continuation of his welfare benefits. In his report to HRS, Gustin stated that "the results of the exam and review of the CAT scan indicate a herniated disc at L-5, S-1 with severe dysfunction and Peterson is temporarily totally disabled from any employment." It was Dr. Gustin's opinion that Peterson was TTD on the date he first saw him to the date of his subsequent surgery, 20 February 1986.

Dr. Gustin referred Peterson to a neurosurgeon, Dr. Reid, who testified that the tests performed by Dr. Feussner clearly indicated a herniated disc at L-5, S-1. A microsurgical diskectomy was performed on 20 February 1986. Since the surgery, Peterson has dramatically improved and is no longer symptomatic. Reid placed Peterson at maximum medical improvement on 8 April 1986 with a 5% permanent impairment.

G-P had paid benefits and salary up until Peterson's 15 April 1985 termination. It defended Peterson's claim for TTD benefits from that date on the ground that Peterson had fraudulently represented his physical condition on the employment application. That application did not reveal that, in 1979, Peterson was in a compensable automobile accident, suffering injury to his mouth, right arm and low back. A deputy commissioner held that, as a result of this accident, Peterson had a 20% permanent impairment to his body as a whole, 5% of which was attributable to his back. It was Peterson's testimony that he had no residual problems from that back injury, diagnosed as a sprain, and that he had had no trouble performing heavy labor because of it up to the time of the instant accident. G-P's personnel manager testified that he would not have hired Peterson had he known about the 1979 injury, but there was no medical testimony that the 1979 injury caused or contributed to the 1985 injury.

The deputy denied G-P's fraudulent concealment defense, finding that it had not proven a causal relationship between the 1985 injury and the false representation....