Sunshine Plumbing v. Benecke

• Decision Date: 14 March 1990
• Docket Number: No. 89-1064,89-1064
• Citation: 558 So.2d 162
• Parties: 15 Fla. L. Weekly D713 SUNSHINE PLUMBING and Liberty Mutual Insurance, Appellants, v. John BENECKE, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 162

558 So.2d 162

15 Fla. L. Weekly D713

SUNSHINE PLUMBING and Liberty Mutual Insurance, Appellants, v. John BENECKE, Jr., Appellee.

No. 89-1064.

District Court of Appeal of Florida First District.

March 14, 1990.

Juan A. Bello of Rissman, Weisberg, Barrett & Hurt, P.A., Vero Beach, for appellants.

Frederic M. Scho of Meyers and Mooney, P.A., Orlando, for appellee.

THOMPSON, Judge.

The employer/carrier (EC) appeal a workers' compensation order which found that the claimant's 1987 fall and injury were caused by residual leg problems from claimant's 1983 compensable injury, and awarded medical benefits, costs and attorney's fees. We agree with the EC that claimant failed to sustain his initial burden of proving that a causal connection exists between the 1983 injury and the 1987 fall, and we reverse the award.

Claimant is a 33-year-old man employed by the EC in 1983 as a laborer. On July 6, 1983, claimant injured his low back in an accident accepted as compensable. On September 18, 1986, claimant and the EC entered into a wash out agreement in settlement of all compensation, rehabilitation, and medical benefit claims arising from the 1983 injury. Claimant apparently underwent a lumbar laminectomy as a result of his 1983 injury, but no medical records relating to the treatment of this injury are included in the record. Claimant never returned to work for the employer.

In July 1987 claimant fell while standing on the bumper of a pickup truck and reaching for a fishing rod. He struck his back but was not aware of any result until approximately one month later when he noticed a lack of feeling in his right leg. He ultimately underwent an anterior cervical diskectomy and fusion of C4-5 on November 23, 1987. On March 25, 1988, he filed a claim for payment of his outstanding medical bills, attorney's fees and costs. The matter proceeded to final hearing at which claimant testified that following his July 1983 accident he suffered low back and leg pain. He ultimately underwent surgery for a herniated disc in his low back. He recovered fairly well but could not find another job. At some point he tried to go back to college, but was unable to continue due to continuing back pain and his doctor told him to stop attending class. Claimant testified that between 1983 and 1987 his only continuing problem was that his leg would periodically give out. This occurred five or six times during the period. Following his July 1987 fall and his realization that he had sustained an injury as a result, he unsuccessfully sought medical care from two authorized physicians. Claimant then saw Dr. Tweed, a neurosurgeon, and Dr. Derbenwick, a neurologist, neither of whom were authorized by the EC.

Dr. Tweed testified by deposition he first saw claimant in the emergency room November 18, 1987, and diagnosed a "large" herniated pulposus at C4-5 with cervical myelopathy and Brown-Sequard syndrome. He was very concerned with the possibility of complete paralysis and felt prompt surgery was indicated. Dr. Tweed stated he conferred with Dr. Derbenwick, but that he relied primarily on the history provided by claimant. When asked how claimant described the onset of his symptoms, Dr. Tweed stated, "When he climbed off of a truck. And he stated that when he climbed off the truck he hit the pavement and his legs gave way and he then fell to the ground." Claimant gave no history or detail of leg problems or giving way, "Just his legs gave way and that's when he fell to the ground. He attempted to steady himself and his neck went back at the same time." A few weeks later claimant noticed loss of sensation in his right leg. Dr. Tweed's discharge summary for claimant's November 1987 hospitalization and surgery states at claimant's history:

[Claimant] had experienced progressive weakness and loss of sensation in the legs and left arm since having fallen off a truck in July of 1987. He at first experienced weakness of the left lower extremity after losing sensation in the left lower extremity in July, and then progressed on to loss of function of the left upper extremity in September.

The admission summary for the same hospitalization states:

[Claimant] is being admitted on an urgent basis because of progressive weakness and loss of sensation in his legs and his left arm. He presents with a history of having fallen off his truck in July, the first week of July in particular, 1987 approximately 4 months ago. Approximately 1-2 weeks later he began to experience loss of sensation in the right leg.... In August he began to experience progressive weakness of the left lower extremity, left lower extremity becoming weaker and having more difficulty using it and also more difficulty walking.

In a January 15, 1988, letter to claimant's attorney, Tweed stated:

It is my opinion that this patient's symptoms which consist of a spinal cord involvement or myelopathy at C4-5 level was directly related to a herniated nucleus pulposus or disc herniation of at this level. It is the further opinion by the undersigned that the disc occurred at the time of the accident that the patient incurred during the first week of July, 1987.

Dr. Derbenwick, who saw claimant one time in October 1988, stated in a letter to the referring health department:

The history was obtained from the patient who stated that he fell off the back of his truck in July and struck his back with no pain. One week later while swimming in the cold springs he realized that he could not feel the cold water on his right leg and cut himself and did not know that he had done so. In August he developed dragging of his left leg that was noticeable if he tried to walk fast. In early September he began to lose control of his left hand with a mild ache in his upper left forearm at times.

In 1983 he had a workmen's comp injury, and in 1985 he had surgery for left leg problems that resolved completely with that surgery.

The judge found that claimant's July 1987 fall was caused by residual leg problems along with pain and numbness from his previous industrial injury that occurred in 1983, and that, "There was no evidence presented to show that the claimant's fall was caused by any other reason other than the residuals from the [1983] injuries." The EC was ordered to provide the medical benefits claimed, costs and an attorney's fee. This appeal followed. The EC argues no competent substantial evidence supports the judge's determination that claimant's compensable 1983 injury caused claimant's 1987 fall and injuries. We agree.

The only evidence of a causal connection is claimant's testimony that following his 1983 accident his leg would periodically give way. No medical evidence establishes a causal connection between the 1983 injury and the 1987 fall. The only causal connection evidence adduced was Dr. Tweed's opinion that claimant's...