Rodriguez v. Howard Industries

• Decision Date: 25 October 1991
• Docket Number: No. 90-3556,90-3556
• Parties: 16 Fla. L. Weekly D2750 Eusebio RODRIGUEZ, Appellant, v. HOWARD INDUSTRIES and Liberty Mutual Insurance Company, Appellee.
• Court: Florida District Court of Appeals

Page 646

588 So.2d 646

16 Fla. L. Weekly D2750

Eusebio RODRIGUEZ, Appellant, v. HOWARD INDUSTRIES and Liberty Mutual Insurance Company, Appellee.

No. 90-3556.

District Court of Appeal of Florida,

First District.

Oct. 25, 1991.

Rehearing Denied Dec. 4, 1991.

Edward Schroll, Miami, for appellant.

Sean J. Gallagher, of Miller, Kagan & Chait, P.A., Deerfield Beach, for appellee.

ERVIN, Judge.

Appellant, Eusebio Rodriguez, the claimant below, appeals from a final workers' compensation order denying him attendant care benefits and determining that he is not permanently and totally disabled (PTD). Claimant specifically argues that the judge of compensation claims (JCC) erroneously rejected unrefuted lay and medical evidence establishing reasonable necessity for home attendant care and erroneously rejected unrefuted medical evidence establishing that claimant is PTD. We agree with appellant as to both points and therefore reverse and remand for further proceedings.

Claimant, a 65-year-old Cuban immigrant, began working for the employer in approximately 1979 as an assembler of windows and doors. He suffered a compensable injury to his right shoulder in an industrial accident that occurred on August 8, 1988, while he was lifting a window. Thereafter he filed a claim for benefits, requesting, among other things, PTD and attendant care benefits.

Claimant testified at the hearing that following his industrial injury, he came under the care of Dr. Jose Jaen, an orthopedic surgeon. Dr. Jaen performed a shoulder manipulation on August 31, 1988, and surgery to repair a torn rotator cuff in claimant's shoulder on May 4, 1989. Claimant stated that Dr. Jaen released him on November 20, 1989, with a 35 percent permanent impairment (PI) of the upper extremity. It was claimant's testimony, however, that he was unable to manipulate his right shoulder or arm and that he had lost "pressure" and strength in his right hand. He achieved no results from daily physical therapy, and cannot move his arm forward or backward and can only raise it a slight degree. Claimant complained that his condition had worsened since November 1989, in that he has more limitation, his hand shakes more, and he experiences greater pain. Although he is not in continual pain, he has pain when he moves his arm. He stopped physical therapy in July 1989 because it was too "violent." He said he began experiencing more chest pains after his shoulder injury and that he now has to take nitroglycerin.

As to the issue regarding attendant care, claimant testified that his wife has taken time off from work to help him. Because he is right-handed, his wife cuts his food and he must eat with his left hand. Additionally, his wife helps him dress, combs his hair, shaves him, and helps him bathe. Claimant's wife, Siomara Rodriguez, verified claimant's testimony. She also stated that she must be available to put hot and cold bags on him when he awakes at night because of the pain. She has performed the above attendant care services for her husband since his injury, helping claimant at the rate of six hours per day.

Dr. Jaen testified by telephone at the hearing. He related that he had conducted shoulder manipulation on claimant under an anesthetic on August 31, 1988, and surgery on May 4, 1989 to repair a torn rotator cuff. He noted there had been nerve impingement and inflammation. Dr. Jaen opined that claimant reached maximum medical improvement (MMI) on November 20, 1989, and discharged him with a 35 percent PI of the upper right extremity. He restricted claimant from lifting over two pounds and from any overhead working. Dr. Jaen testified that he was aware of claimant's cardiac condition, but that he did not consider that impairment in reaching his PI rating, which was strictly based on the significant limitation in claimant's range of motion.

In regard to home attendant care, Dr. Jaen said that as of his last determination in November 1989, claimant's condition was such that he needed a home care attendant, and if claimant's condition had not improved since November 1989, he would still be of the same opinion. Although stating claimant did not need attendant care to improve his condition or that it was medically necessary to do so, Dr. Jaen testified that the need was based on claimant's inability to do daily living activities, such as dressing and bathing, as a result of his injury.

Dr. Augusto Enriquez, claimant's family physician, also testified over the telephone at the hearing. He said that claimant came under his care in 1983 following quadruple coronary bypass surgery performed in July 1983 by a cardiologist. Dr. Enriquez opined that claimant has a PI of approximately 60 to 80 percent because of the bypass surgery. He was aware of claimant's shoulder injury, but stated he never treated it, having assumed that the orthopedist was. He did testify that he had performed a physical and range-of-motion test on claimant and opined that claimant had a 15 to 20 percent PI in regard to the shoulder injury. He admitted that he had never talked to the orthopedist, but stated that he did not need to be an orthopedist to determine that claimant had a severe problem in his right shoulder. It was Dr. Enriquez's opinion that the combination of claimant's shoulder injury and his preexisting heart condition resulted in total unemployability. Further, the doctor stated that the shoulder injury, trauma, operation, and the frustrations and anxiety involved in the injury acted to aggravate his heart condition. Claimant's angina had been increasing since the time of the injury, and the doctor was currently in the process of referring claimant to a cardiologist, because he felt that claimant needed a cardio-catheterization.

Also admitted at the hearing were the reports of Dr. Garcia-Granda, a psychiatrist who treated claimant. He opined that claimant suffered from an adjustment reaction because of his inability to cope since the accident, that is, he feels useless and dependent on his wife. By letter dated August 1, 1990, Dr. Garcia-Granda opined that claimant had reached MMI from a psychiatric point of view with a 20 percent psychiatric PI.

The JCC entered an order determining that claimant was not PTD and denying benefits therefor. He also denied attendant care. In so ruling, the JCC rejected Dr. Enriquez's opinions regarding claimant's shoulder condition and the merger of the cardiac and shoulder conditions. He relied on Dr. Jaen's opinion that attendant care was not medically necessary.

In regard to the issue of the JCC's rejection of Dr. Enriquez's testimony concerning the PTD claim, as a general rule questions concerning the credibility of witnesses are solely within the province of the JCC. Bray v. Electronic Door-Lift, Inc., 558 So.2d 43, 46 (Fla. 1st DCA 1989). Nonetheless, although the JCC has the discretion to accept the opinion of one doctor over that of another, he may not reject unrefuted medical testimony without providing a reasonable explanation for doing so. Severini v. Pan Am. Beauty School, Inc., 557 So.2d 896, 897 (Fla. 1st DCA 1990); Calleyro v. Mt. Sinai Hosp., 504 So.2d 1336, 1337 (Fla. 1st DCA), review denied, 513 So.2d 1062 (Fla.1987).

Dr. Enriquez's uncontradicted testimony was that claimant's shoulder and cardiac conditions combined so as to make claimant totally unemployable. The JCC rejected that opinion on the basis...