Stacy v. Venice Isles Mobile Home Park, 92-2328

• Decision Date: 27 April 1994
• Docket Number: No. 92-2328,92-2328
• Parties: 19 Fla. L. Weekly D933 Edward R. STACY, Appellant, v. VENICE ISLES MOBILE HOME PARK, USF & G, Appellees.
• Court: Florida District Court of Appeals

Page 1039

635 So.2d 1039

19 Fla. L. Weekly D933

Edward R. STACY, Appellant, v. VENICE ISLES MOBILE HOME PARK, USF & G, Appellees.

No. 92-2328.

District Court of Appeal of Florida,

First District.

April 27, 1994.

Alex Lancaster and Rosemary B. Eure, of Lancaster & Eure, P.A., Sarasota, for appellant.

Hermes Eraclides of O'Riorden, Mann, Hootman, Ingram & Dunkle, P.A., Sarasota, for appellees.

JOANOS, Judge.

In this workers' compensation appeal, Edward R. Stacy (claimant) contests the order of the Judge of Compensation Claims (JCC) denying his claim for medical treatment and indemnity benefits. The issues presented are (1) whether the JCC erred in rejecting the testimony of claimant's treating physicians as to causal relationship between the industrial accident and claimant's current physical condition, and (2) whether the JCC erred in rejecting the physicians' opinions without providing a sufficient reason for doing so. We affirm.

The industrial accident at issue in this case occurred July 12, 1991. Claimant was employed by Venice Isles Mobile Home Park (employer) as a member of the grounds crew. Claimant testified that as he assisted in removing a sidewalk, he was scooped up by a tractor bucket, then dropped five feet, landing on his head, neck, and shoulder. An accident report was filed, but claimant declined an offer of medical attention at that time and continued working.

The claimant testified that his entire body was sore the first week after the accident. When the soreness began to fade, he testified that there was numbness and weakness in his hands. On August 2, 1991, for reasons unrelated to the earlier accident, claimant passed out while working in the hot sun with a weed-eater. When he was told he would have to continue operating the weed-eater rather than being assigned to lighter duty, he decided to leave. Claimant said when he got into his automobile and turned around in the driveway, he clipped the door of a company truck that was sitting partially in the driveway. According to a witness, claimant jammed the front end of his car against the truck and accelerated, pushing the truck. The police were called and claimant was issued a ticket for careless driving. Claimant was then informed that his employment would be terminated. Thereafter, claimant sought medical attention. Claimant said he sought medical care on August 3, 1991, the day after the motor vehicle accident, because he was informed his employment would be terminated on Monday when the manager returned. Claimant's only physical complaints at that time were of numbness and tingling in his hands. He stated that he told the attending physician of these symptoms, but the information does not appear on the emergency room report. Claimant said he "was going to rough it out" while he was employed, but knowing he would be fired, he sought medical attention at a hospital emergency room. He said he did not mention the August 2, 1991, incident to any of the examining or treating physicians, because he considered the incident nothing more than a mishap involving no physical injury. After x-rays were taken at the hospital, claimant was referred to a neurosurgeon.

Claimant consulted an attorney about a possible action for personal injuries. Acting upon the attorney's advice, claimant wrote a letter requesting medical treatment for the industrial injury. The carrier authorized a neurologist, who performed a magnetic resonance imaging test (MRI). Based upon the MRI results, the neurologist referred claimant to Dr. Sonstein, a neurosurgeon, who examined him on October 15, 1991. Following a myelogram performed October 30, 1991, Dr. Sonstein recommended surgery. Although claimant agreed to have the surgery, it was not authorized by the carrier.

The record reflects that the carrier advised claimant of his entitlement to benefits, and provided him with work search forms. In addition, claimant was working with a therapist provided by the carrier. Claimant did not conduct a work search at any time pertinent to this appeal. His testimony reflects that he understood he was not supposed to work pending the recommended surgery, and considered a work search a useless effort, because the rehabilitation provider had scheduled him for tests.

Dr. Sonstein's report and deposition testimony indicates that claimant suffered from significant disc disease at C4-5 and C5-6. In Dr. Sonstein's opinion, claimant's testimony as to hand numbness and weakness was consistent with the cord compression revealed by the MRI. Dr. Sonstein further opined that the injury of July 12, 1991, aggravated a pre-existing degenerative condition in claimant's neck, and claimant was capable of light duty work after the injury. The history claimant furnished to Dr. Sonstein included details of the industrial accident of July 12, 1991, but claimant did not advise him concerning the incident of August 2, 1991. Dr. Sonstein stated that if the motor vehicle accident was very minor it would still be his view that the industrial accident of July 12, 1991, aggravated claimant's pre-existing condition.

Dr. Lonstein, who performed an independent medical examination of claimant on May 1, 1992, related claimant's symptoms to the industrial accident of July 12, 1991. Again, he did not have information as to the motor vehicle accident. When asked whether the motor vehicle accident was the more logical cause of claimant's condition, Dr. Lonstein concluded that it would be the more immediate cause since claimant sought medical attention the next day. When asked to assume, however, that the motor vehicle accident was insignificant and caused no injury to claimant, Dr. Lonstein opined that claimant's complaints would be related to the industrial accident of July 12, 1991. A film introduced into evidence showed the claimant replacing a lugnut on an automobile wheel.

The JCC denied the claim for workers' compensation benefits, based on his determination that claimant was not credible. The JCC found claimant's lack of credibility made the predicate for the doctors' opinions regarding causal relationship "not worthy of belief."

It is undisputed in this case that an industrial accident occurred on July 12, 1991. The controversy is whether claimant's pre-existing condition was aggravated by that accident. The employer/carrier contended the motor vehicle incident of August 2, 1991, was the cause of claimant's symptoms, rather than the July 12, 1991, industrial accident.

The JCC rejected the opinions of the two physicians that the industrial accident aggravated claimant's condition, concluding the predicate for those opinions was not worthy of belief. That determination was based on findings that claimant worked continuously after the industrial accident until August 2, 1991, and only sought medical attention when he left the workplace believing his employment was about to be terminated. The JCC further noted that on August 3, 1991, claimant sought medical treatment at the emergency room, giving a history of the accident of July 12, 1991, but failing to mention the motor vehicle incident of August 2, 1991. The JCC found claimant had been untruthful in the medical history he provided the doctors, to the extent that he did not advise Dr Sonstein and Dr. Lonstein of the August 2, 1991, motor vehicle accident. The JCC found claimant's medical condition to be chronic and pre-existing, rejecting the doctors' opinions of aggravation of the pre-existing condition as unfounded.

Clearly, credibility determinations and resolution of conflicting evidence are within the JCC's discretion. Days Inn/Days Suites v. Thomas, 623 So.2d 529 (Fla. 1st DCA 1993); Yeargin Construction Co. v. Hutchinson, 547 So.2d 1269 (Fla. 1st DCA 1989); S & S Stove Repair, Inc. v. Dumas, 465 So.2d 644 (Fla. 1st DCA 1985). The JCC need not explain the acceptance of one physician's opinion over that of another unless (1) the reason is not apparent from the record, or (2) it appears the JCC overlooked or ignored evidence in the record. Days Inn v. Thomas, 623 So.2d at 532; H & A Franks Construction, Inc. v. Mendoza, 582 So.2d 780 (Fla. 1st DCA 1991); Curry v. Miami Dolphins, Ltd., 522 So.2d 1010 (Fla. 1st DCA 1988). The reasons provided by the JCC must be logical and must be supported by articulable facts in the record. Days Inn v. Thomas, 623 So.2d at 532. However, when the question before the JCC involves the determination of a non-observable medical condition beyond the common experience of the trier of fact, it is error to reject unrefuted expert medical testimony without providing a sufficient reason for doing so. Turner v. G. Pierce Wood Memorial Hospital, 600 So.2d 1153, 1156-1157 (Fla. 1st DCA 1992); Thomas v. Salvation Army, 562 So.2d 746, 749 (Fla. 1st DCA 1990); Curtis v. Florida Correctional Institute, 509 So.2d 1192 (Fla. 1st DCA 1987).

Moreover, a claimant bears the initial burden to demonstrate entitlement to temporary disability benefits, either total or partial, upon a change in employment status due to a compensable injury. The burden may be met with evidence that due to physical limitations, the claimant is unable to do light work uninterruptedly, or with evidence of a good faith, albeit unsuccessful, work search. Sec. 440.15(3)(b)2., Fla.Stat. (1991); Publix Supermarket, Inc. v. Hart, 609 So.2d 1342, 1344 (Fla. 1st DCA 1992); Roll v. Sebastian Inlet, 609 So.2d 674, 676 (Fla. 1st DCA 1992).

In this case, the JCC denied the claim in its entirety, finding the expert opinion regarding causal relationship to be unfounded due to claimant's lack of credibility. This credibility determination was based on a number of factors, including claimant's failure to seek medical treatment until some six weeks after the industrial accident, when it appeared he would be dismissed due to a disagreement with a supervisor. The JCC considered claimant's failure to give a history of the...