Random House/RCA v. Malone, 88-2336

• Decision Date: 07 December 1989
• Docket Number: No. 88-2336,88-2336
• Parties: 14 Fla. L. Weekly 2803 RANDOM HOUSE/RCA and Zurich-American Ins. Co., Appellants, v. Joseph MALONE, Appellee.
• Court: Florida District Court of Appeals

Page 357

553 So.2d 357

14 Fla. L. Weekly 2803

RANDOM HOUSE/RCA and Zurich-American Ins. Co., Appellants, v. Joseph MALONE, Appellee.

No. 88-2336.

District Court of Appeal of Florida First District.

Dec. 7, 1989.

H.M. Gladstein, of Marlow, Shofi, Connell, Valerius, Abrams, Lowe & Adler, Miami, for appellants.

L. Anton Rebalko, Ft. Lauderdale, for appellee.

WENTWORTH, Judge.

Employer/carrier seek review of a worker's compensation order by which they were required to recommence payment of disability and medical benefits and to compensate claimant for all past due benefits. The employer/carrier argue for the first time on appeal that claimant's misleading testimony, before an arbitration panel conducting a hearing as to a noncompensable unrelated vehicle accident, that his disability arose after the car accident should preclude further benefits for disability. Because the employer/carrier failed to allege fraudulent behavior by claimant in the proceeding before the trial judge, this argument is not preserved for appeal. We therefore affirm the order reinstating claimant's benefits.

In 1976 claimant suffered a compensable lower back injury which has required continuous medical attention to date, and for which claimant was accepted as permanently and totally disabled by the employer/carrier in 1979. Treatment for this condition has involved surgery, physical therapy, injections, medications, and a variety of methods for controlling claimant's pain and minimizing his symptoms.

In 1980 claimant was involved in an automobile accident in which the other driver was at fault. Claimant received medical treatment for the minor back injuries he received in the accident and subsequently filed a personal injury claim against the other driver. The claim went to hearing before an uninsured motorist arbitration panel in April 1983, and claimant testified at the hearing.

According to claimant's testimony at the arbitration hearing, he had suffered an injury to his back in the mid-1960's but he had recovered from it well before the automobile accident. He stated that immediately before the latter accident he had been leading a very active life which included boating, dancing and skiing. Claimant testified that he had undergone no significant medical treatment since the back injury in the 1960's had healed, and stated that the only reason he had not worked since 1976 was because he had chosen not to work. The gist of claimant's testimony was that all of the extensive back problems which he suffered subsequent to the 1980 automobile accident were directly attributable to injuries sustained in that accident and were unrelated to any industrial injury. Claimant received a monetary settlement on this personal injury claim.

Upon learning of claim...