Schafrath v. Marco Bay Resort, Ltd.

• Decision Date: 29 October 1992
• Docket Number: No. 91-1613,91-1613
• Citation: 608 So.2d 97
• Parties: 17 Fla. L. Week. D2488 Alice M. SCHAFRATH, Appellant, v. MARCO BAY RESORT, LTD. and FEISCO and Youth Haven, Inc. and Liberty Mutual Ins. Co., Appellees.
• Court: Florida District Court of Appeals

Page 97

608 So.2d 97

17 Fla. L. Week. D2488

Alice M. SCHAFRATH, Appellant, v. MARCO BAY RESORT, LTD. and FEISCO and Youth Haven, Inc. and Liberty Mutual Ins. Co., Appellees.

No. 91-1613.

District Court of Appeal of Florida,

First

District.

Oct. 29, 1992.

Rehearing Denied Dec. 7, 1992.

Richard I. Cervelli, Naples, Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellant.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellees Marco Bay Resort, Ltd. and Feisco.

Nancy A. Blastic of O'Riorden, Mann, Hootman, Ingram & Dunkle, P.A., Sarasota, for appellees Youth Haven and Liberty Mut. Ins. Co.

PER CURIAM.

The claimant, Alice Schafrath, appeals an order denying her claim for workers' compensation benefits. We reverse, holding that the judge applied an erroneous burden of proof.

Claimant sustained an injury to her right elbow on January 26, 1990, while working as a waitress and cook at Marco Bay Resort. The injury occurred when her elbow was struck by double swinging cafe doors through which she was required to walk in carrying out the duties of her employment. The force of the blow knocked the food off the tray she was carrying. Her right arm had been hit by the swinging door on prior occasions, but this time she experienced sharp pain and numbness in the arm. She reported the accident to her supervisor and at the end of the day went to the nearby Urgent Health Care Center for authorized medical treatment. There, she was examined, her arm was x-rayed, and she was told that she had bruised her arm but was not instructed to refrain from working. Consequently, she returned to work and resumed her usual activities until March 6, 1990, when she was again hit by the door. She testified that she was in pain between January 26 and March 6, and that she encountered increasing difficulty lifting things.

On March 6, Claimant saw Dr. Saitta pursuant to authorization by the employer, Marco Bay. Dr. Saitta obtained from Claimant a history of injury when the cafe door hit her right elbow in January and resulting pain and soreness continuing from that occasion. Dr. Saitta's examination revealed pain on movement of the wrist, hand, and forearm, and that palpation of the lateral aspect of the elbow caused pain. He diagnosed her condition as right epicondylitis and tendonitis, which he described in his medical notes as a "severe case." He explained that this condition is an inflammation of the tendon attached to the bone, and is commonly known as "tennis elbow." Claimant was instructed to cease working and using the elbow, was provided with a supportive sling, and was given treatment with acupuncture, ultrasound, and physical therapy several times a week. Doctor Saitta's medical notes indicate that Claimant continued to complain of pain on these visits. On the visit of March 31, Claimant was much improved and was released by Dr. Saitta to return to work.

In the meantime, Claimant stopped working at Marco Bay as instructed by Dr. Saitta and lost her position. She found employment with Youth Haven performing the duties of cook, although at reduced wages. At Youth Haven's request, after Claimant told them about her elbow problems, she obtained a medical slip from Dr. Saitta that recited Claimant "has been discharged from my care on 4/2/90." She commenced employment with Youth Haven on April 6. According to her testimony, Claimant continued to have pain in her right arm, especially when lifting things, and the more she used the arm the more it hurt. On April 26, while working at Youth Haven, Claimant picked up a gallon container of milk but dropped it when she experienced a sharp pain in her arm. The next day she went to Dr. Saitta, and he instructed her to discontinue working. His examination revealed that Claimant suffered pain with movement of the arm, wrist, and hand, and that palpation revealed extreme tenderness of the elbow area. On May 1, 1990, Dr. Saitta notified Marco Bay's carrier, FEISCO, that Claimant "came back to the office with the chief complaint of pain in the elbow. This represents a continuation of her previous injury to the elbow (chronic epicondylitis)." Claimant continued under Dr. Saitta's care and treatment until she returned to work for yet another employer on November 11, 1990. She claims that she still suffers pain in her arm and cannot perform all of the physical activities required in her current employment.

Claimant was evaluated by Dr. Kapp, an orthopedic surgeon, on January 17, 1991, at the request of Youth Haven and its carrier, Liberty Mutual. Dr. Kapp obtained from Claimant a history of injury and pain in the right elbow, and he found tenderness on palpation of the elbow area. His diagnosis was chronic lateral epicondylitis in the right elbow, which he causally related to the January 26 accident.

Claimant filed workers' compensation claims for benefits against both Marco Bay Resort and Youth Haven. The judge of compensation claims denied all benefits from either employer, reciting in part:

(4) Following the January 26, 1990 accident, the claimant came under the care of Dr. Richard Saitta, M.D. Dr. Saitta, who testified by deposition, was of the opinion that the January 26, 1990 accident caused the claimant to suffer from or aggravated her condition of right elbow epicondylitis (tennis elbow). Based upon the deposition testimony of Dr. Saitta, it is found that the claimant reached maximum medical improvement from the January 26, 1990 accident on March 31, 1990. She had no permanent physical impairment at that time. Although Dr. Saitta released the claimant to return to "light duty," it appears that the only reason for this restriction was Dr. Saitta's concern that after having been off work and restricted in the use of her arm, the claimant needed to gradually return to full use of her arm. It is found, nevertheless, that the claimant had essentially fully recovered from the January 26, 1990 accident as of March 31, 1990. It is noted that the claimant was actually released for work effective April 2, 1990.

(5) The claimant, shortly after reaching maximum medical improvement (March 31, 1990), became employed by Youth Haven as a cook. Youth Haven is a residential facility for troubled (abused) youths. On April 26, 1990, while preparing a meal, the claimant testified that she lifted a gallon container of milk. She testified that she immediately felt the sudden onset of pain in her right elbow.

The claimant, however, does not believe that she suffered an accident on April 26, 1990. It is the claimant's position that the onset of pain is either the natural progression of the initial injury by accident or is nothing more than a temporary exacerbation. The claimant testified that following the first accident of January 26, 1990, she had been experiencing ever increasing elbow pain. She testified, in detail, as to the pain she was experiencing while employed by Youth Haven. Employer/carrier No. 2 [Youth Haven and Liberty Mutual] obviously adopts this position of the claimant and argues that the incident of April 26, 1990, was not an accident or in the alternative was nothing more than a temporary exacerbation of the claimant's preexisting condition.

(6) The undersigned has had the opportunity to observe the claimant's demeanor and fully consider her live testimony. The undersigned has carefully read and considered the deposition testimony of Dr. Saitta. A fair reading of Dr. Saitta's testimony is that the claimant was essentially complaint free as of March 31, 1990. There is a conflict between the claimant's testimony and that of Dr. Saitta. The claimant is extremely articulate and presentable. She did not, however make a convincing, creditable witness with regard to her testimony of pain in her right elbow preceding her second injury. According to the claimant, she had ever increasing complaints of elbow pain. Dr. Saitta testified that as treatment progressed, the claimant had fewer and fewer complaints and by March 31, 1990, had fully recovered from the January 26, 1990 accident. In resolving this conflict, the undersigned rejects the testimony of the claimant with regard to her claimed complaints of increasing pain leading up to and on March 31, 1990. Specifically with respect to the claimant's condition on March 31, 1990, the claimant presented herself to Dr. Saitta as being recovered from her accident but now testifies that she, in fact, was still experiencing pain. The undersigned simply concludes that the claimant's testimony is not reliable on this point and therefore rejects that portion of her testimony.

(7) Dr. Saitta, in his deposition, relates the claimant's present complaints to a "reinjury" for which he saw her on April 27, 1990, the day after the incident of lifting the milk container. The claimant did not, however, advise Dr. Saitta of this lifting incident. Although Dr. Saitta was of the opinion that the claimant suffered a reinjury (a new injury) to her elbow when he saw her on April 27, 1990, he was never asked by hypothetical whether the lifting of the milk container was the probable cause of this new injury. Even assuming that Dr. Saitta's testimony can be construed as causally relating the claimant's condition to this second incident, that opinion is rejected as being based on allegations which have not been established. Specifically, Dr. Saitta's opinion, on this point, is based on the claimant being relatively symptom free until the second accident. This fact cannot be established nor found. The claimant testified she was having pain prior to the second incident. What the undersigned has rejected is that the claimant was having pain when she reached MMI. The undersigned has not rejected the claimant's testimony that she was having pain sometime thereafter but before the second accident.

The claimant was seen by Dr. Howard Kapp, M.D., an orthopedic surgeon, for an IME on January 17, 1991. Dr. Kapp testified by deposition...