Square G. Const. Co. v. Grace
| Decision Date | 25 March 1982 |
| Docket Number | No. ZZ-43,ZZ-43 |
| Citation | 412 So.2d 397 |
| Court | Florida District Court of Appeals |
| Parties | SQUARE G. CONSTRUCTION COMPANY and U. S. Fidelity & Guaranty Company, Appellants, v. Handsome GRACE, Appellee. |
John R. Gierach, Orlando, for appellants.
Curtis B. Goff, Orlando, for appellee.
The claimant in this workers' compensation case, Handsome Grace, was awarded (1) evaluation of his back disability by a surgeon to be chosen by agreement; (2) temporary total disability compensation from August 7, 1980 to the date of hearing on September 23 and, in the pro forma language of Section 440.15(4)(c), during the continuance of such disability; and (3) payment for two prescriptions dated August 19 and September 2, 1980, described in a September 15 notice to controvert.
Carrier's appeal challenges the payment for the prescriptions on the ground that only Dr. Shea was authorized, and contests the award of compensation on the ground of lack of competent substantial evidence of medical disability and claimant's failure to return to work. We affirm the award on consideration of the deputy's finding of emergency treatment and further finding of claimant's physical inability to do his job during the period in question, based on the deputy's observation of claimant and testimony as to the prescribed medications including "muscle relaxers and other pills that make him drowsy which would prevent him from operating the heavy equipment, which was his job at Square G at the time ...." We note that claimant's testimony before the deputy was contemporaneous with the six-week period of temporary disability in question, and the only other evidence before the deputy (except documentary exhibits) was a deposition by Dr. Shea, who evaluated claimant on August 7 and noted continued complaints but concluded at that time he would not impose work restrictions or provide treatment or medication.
Following his accident on May 26, 1980, claimant was first treated by the hospital emergency room physician, Dr. Sangadraca, and in the following month by a series of doctors named on the parties' record stipulation as Drs. Brunson, Wright, and Kim, while he was hospitalized from June 6 to 21. 1 A report by Dr. Shea submitted to carrier on August 11 shows two appointments, July 14 and August 7, for claimant who "comes to this office for orthopaedic evaluation." The report is largely negative but notes moderate to minimal lumbar spasm, movement in a very stiff painful manner, absence of any myelogram study, and concludes that MMI was reached and "there is nothing orthopaedically."
Dr. Shea's deposition confirms that claimant was provided no return appointment. Claimant testified he requested additional care by calling Dr. Shea's office but was unable to get an appointment. His attempt to relate what the doctor's secretary told him was excluded as hearsay. The date of the controverted prescription would indicate that he visited the hospital emergency room within a week or so after Dr. Shea's discharge, because, in substance, he did not know he could see any other doctor when his continuing symptoms recurred in severe form. The hearing before the deputy followed shortly after the carrier controverted payment of the prescription. Under the circumstances presented we are unable to reverse the deputy's conclusion that the treatment was of such emergency character as not to violate the provisions of Section 440.13 with respect to authorization.
Claimant testified in some detail as to physical requirements of his job in operating heavy equipment and as to past experience, having finished 3rd grade in school: "I've done farm work, picked cotton, plowed mules, plowed a tractor, and also when I went into construction work I be pressing manholes, operated all different kinds of heavy equipment." We conclude against reversal of the deputy's resolution of the clear credibility issues before him as to temporary disability for reasons detailed below.
Recent decisions have properly emphasized the necessity for efforts to test employability when there is no substantial evidence of medical inability to work during a period of claimed temporary disability. 2 Those opinions, however, have expressly referenced the earlier decision in Mendivil v. Tampa Envelope Manufacturing Co., 233 So.2d 5 (Fla.1970), which clearly stated what Florida workers' compensation law has always recognized: That, in proper circumstances, temporary medical or functional disability may be proved by lay testimony:
... lay testimony is often sufficient to sustain a compensation award, even though it conflicts with medical testimony .... (e.s.)
See also Crowell v. Messana Contractors, 180 So.2d 329, at 330 (Fla.1965):
... we have held that opinions of medical experts are not conclusive and may even be disregarded by the deputy 'in favor of lay testimony,' ...; that the deputy may consider not only lay testimony but his personal view of the claimant as well, Hernandez v. DeCarlo, 116 So.2d 429 (Fla.1959); and that a conclusion may be based on the testimony of a claimant to the exclusion of a medical expert, Star Fruit Co. v. Canady, 159 Fla. 488, 32 So.2d 2 (1947). (e.g.)
We accordingly affirm the award in the present case because the medical evidence necessary to show compensable temporary disability (or inability to attempt a return to employment) may include claimant's testimony as to his condition, including reaction to prescribed medication and physical limitations, even after discharge and release for work by his treating physician. 3 Decisions rejecting a claimant's bare complaints as insufficient to excuse lack of work effort, in certain contexts, are easily distinguished on their stated facts. 4 We find no statutory change which reverses the above cited ordinary established rules of evidence or creates new conditions precedent for such awards. 5
The order appealed is accordingly AFFIRMED.
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