Romero v. Waterproofing Systems of Miami

• Citation: 11 Fla. L. Weekly 1576,491 So.2d 600
• Decision Date: 17 July 1986
• Docket Number: No. BI-440,BI-440
• Parties: 11 Fla. L. Weekly 1576 Angel ROMERO, Appellant, v. WATERPROOFING SYSTEMS OF MIAMI and Kemper Insurance Group, Appellees.
• Court: Florida District Court of Appeals

Page 600

491 So.2d 600

11 Fla. L. Weekly 1576

Angel ROMERO, Appellant, v. WATERPROOFING SYSTEMS OF MIAMI and Kemper Insurance Group, Appellees.

No. BI-440.

District Court of Appeal of Florida,

First District.

July 17, 1986.

Mark L. Zientz, of Williams & Zientz, Coral Gables, for appellant.

Jeffrey S. Breslow, of Adams, Kelley & Kronenberg, Miami, for appellees.

FRANK, Judge.

The appellant, Angel Romero, has sought review of that portion of a workers' compensation order setting a date of maximum medical improvement (MMI), denying a request for psychiatric treatment and refusing an award of temporary total disability benefits.

Romero received second and third degree burns on his right arm on October 7, 1983, when he was working for the appellee, Waterproofing Systems of Miami, Inc., installing a roof. A container of hot tar exploded and spewed the scalding liquid on him. Romero was treated at the Cedars of Lebanon Hospital by Dr. Gustavo Leon, a general surgeon. Romero continued to receive medical care from Dr. Leon until January 30, 1984, when Dr. Leon discharged him, concluding that he was able to return to work. Romero had received temporary medical and temporary disability benefits until that date. Romero filed a claim on February 28, 1984, requesting, among other things, a determination of the MMI date, authorization for psychiatric care and temporary disability benefits for the period beginning on January 30, 1984.

Romero was examined by Dr. Robert G. Gilbert on August 13, 1984, and by Dr. Carlos Garcia-Lavin on August 14, 1984. Dr. Gilbert, a general surgeon, conducted a physical exam, procured Romero's medical history, considered the AMA Guide to the Evaluation of Permanent Impairment, and determined that Romero had sustained a 15% permanent impairment to the whole man and that he could continue working with minimal restrictions in his working environment--that is, Romero should not work in temperatures over 85 degrees and should not expose his right arm to the sun. Dr. Gilbert also formed the view that Romero, as of August 13, 1984, had developed a psychological problem due to the burn scar on his right arm and that psychiatric care was warranted. Dr. Gilbert emphasized that most burn victims do not experience the degree of psychological effect that Romero manifested. Dr. Garcia-Lavin, a psychiatrist, examined Romero and concluded that he was experiencing an anxiety response to and was obsessed with the scarring. Dr. Garcia-Lavin prescribed medication to help Romero sleep.

Hearings were conducted on September 6, 1984 and on July 1, 1985 by the deputy commissioner to consider and pass upon Romero's claim. Dr. Gilbert testified telephonically to his findings and conclusions and Dr. Garcia-Lavin's deposition was admitted into evidence. The deposition of Dr. Leon was also entered into evidence. In his deposition, Dr. Leon expressed the view that Romero did not need psychiatric evaluation. Based primarily upon Dr. Leon's deposition and the rejection of Dr. Garcia-Lavin's testimony, the deputy commissioner denied Romero's request for psychiatric care. Romero unsuccessfully moved for a reconsideration of the deputy commissioner's ruling asserting that it was unsupported by competent, substantial evidence. Romero emphasizes this point on appeal and we agree.

Our function is not to reweigh the evidence, however, the critical evidence offered at trial was in the depositions of Dr. Leon and Dr. Garcia-Lavin, thus rendering our vantage point in reviewing the testimony equal to that of the deputy commissioner. Poorman v. Muncy & Bartle Painting, 433 So.2d 1371 (Fla. 1st DCA 1983). Dr. Leon's testimony, relied upon by the deputy commissioner, was nothing more than his generalized opinion concerning a burn victim's susceptibility to resultant psychological problems. Dr. Leon stated that Romero did not need psychiatric evaluation because:

I have treated many human beings in my profession and all the people who do get burned, do need physical therapy work and training as to how to get back into normal function in society. I don't think psychiatrists are of any help to a person who was burned while he was working, unless he was to have set a fire to himself and then I would definitely send him to a psychiatrist to begin with.

It is our view that Dr. Leon, a general surgeon, not a psychiatrist, expressed an opinion arguably beyond his expertise and of questionable competence. See Metropolitan Transit Authority v. Bradshaw, 478 So.2d 115 (Fla. 1st DCA 1985) (chiropractor's opinion as to claimant's need for psychiatric care was beyond expertise). Perhaps more significant in rejecting Dr. Leon's conclusions is the fact that his...