Ullman v. City of Tampa Parks Dept.

• Decision Date: 15 September 1993
• Docket Number: No. 91-3048,91-3048
• Citation: 625 So.2d 868
• Parties: 18 Fla. L. Weekly D2043 James ULLMAN, Appellant, v. CITY OF TAMPA PARKS DEPARTMENT and Alexsis, Appellees.
• Court: Florida District Court of Appeals

Page 868

625 So.2d 868

18 Fla. L. Weekly D2043

James ULLMAN, Appellant, v. CITY OF TAMPA PARKS DEPARTMENT and Alexsis, Appellees.

No. 91-3048.

District Court of Appeal of Florida,

First District.

Sept. 15, 1993.

Enrique Escarraz, III and Donald C. Anderson, St. Petersburg, for appellant.

Stephen M. Barbas, Tampa, for appellees.

EN BANC

KAHN, Judge.

In this workers' compensation case James Ullman appeals a decision of the judge of compensation claims (JCC) in favor of the appellee City of Tampa (E/C) on the question of whether Ullman is entitled to disability and medical benefits as the result of an industrial accident. Finding that the JCC properly and thoroughly performed his obligation as the finder of fact, we affirm. We have considered this case en banc in order to more clearly define the role of the JCC as the arbiter of disputed factual matters in workers' compensation cases.

As of June 6, 1990, Mr. Ullman had been employed by the E/C for approximately eight years. On or about that date, Ullman's supervisor instructed him to perform duties involving scraping off a nonskid surface from bathroom floors at a City Parks Department facility. Mr. Ullman engaged in this activity for about two and a half days. On June 13 or June 15, 1990, Ullman undertook a job which, according to his testimony, involved digging up or realigning meter boxes at a Tampa city park. On June 21, 1990, Ullman for the first time advised his supervisor that he had injured his back during the meter box activity. The supervisor, Mr. Slaza, inspected the meter box area two or three days later and determined that no physical evidence consistent with digging or realignment was present. At some point between June 18, 1990 and June 20, 1990, the E/C served Ullman with a notice of disciplinary action advising Ullman that a hearing would be held on June 21, 1990, concerning Ullman's employment. Mr. Ullman worked without interruption for the E/C, as well as for his part-time weekend employer from June 6, 1990 until June 20, 1990.

On June 21, 1990, upon his report of back problems to Mr. Slaza, Mr. Ullman sought treatment from Dr. Folkman, a family practitioner in Tampa. Mr. Ullman reported to the doctor the history of two-and-a-half days of floor scraping followed by digging up meter boxes approximately a week later. He related back complaints dating from these physical activities. Dr. Folkman diagnosed lumbar strain with "some spasm." She ordered lumbar x-rays which she read as "negative." Asked in her deposition whether Mr. Ullman's low back condition in June of 1990 "was related to the history that he gave you that you've talked about," Dr. Folkman replied, "I think it's pretty clear cut that he got an injury at work and subsequently suffered some consequences thereof." A few weeks later Dr. Folkman decided that Mr. Ullman should be seen by an orthopedic specialist, and she referred him to Dr. Williamson. It turned out, however, that Ullman never made an appointment with Dr. Williamson.

The E/C desired an independent medical examination and ultimately referred Ullman to the same Dr. Williamson for an examination on November 29, 1990. Mr. Ullman reported to Dr. Williamson that he first became aware of back pain around June 15, 1990. Dr. Williamson noted complaints of pain with no objective findings. Interestingly, Dr. Williamson read the June 1990 lumbar x-rays from Dr. Folkman and from these films diagnosed spondylolisthesis of the low back, a condition described by Dr. Williamson as congenital. Concerning the question of a work-related accident, Dr. Williamson testified:

When these symptoms occur, I have to rely on the history that's given to me.

. . . . .

The only way I can relate the patient's symptoms to a work-related injury is from the history that I have attained from the patient. I cannot examine this man and state from his present physical findings that his physical condition is work related.

The JCC entered an order finding that Mr. Ullman did not sustain an injury arising out of and in the course of his employment. Noting that the only evidence supporting Mr. Ullman's version of the origin of his back pain was in the form of Ullman's testimony and the history given to Drs. Folkman and Williamson, the JCC made the following findings concerning Ullman's credibility:

I find that [sic] the Claimant's testimony to be inconsistent, lacks credibility and was self serving in nature. The reason for this finding is that on or about June 20, 1990, the Claimant was served with a Notice of Disciplinary Action advising him that a hearing was to be scheduled on June 21, 1990 the same day which he reported this alleged accident. The Claimant testified that he received the Notice several days earlier, I reject that. Not until after he was served with this Notice of Disciplinary Action, which ultimately resulted in his termination ¹ for reasons unrelated to any physical problems, did he request to see a physician or specifically related the cause for his back problems. It is noteworthy that Mr. Ullman was the safety representative for his crew or group and should have known the proper procedure for immediately reporting an on the job accident. In addition, the Claimant worked continuously, including his weekend part-time job from June 6, 1990 until June 20, 1990 the day that he was served with Notice of Disciplinary Action.

Even though there was testimony the Claimant did complain of back pain there is no testimony of any of the specifics of an accident until June 21, 1990, the date of his Disciplinary Hearing. Claimant testified that the reason he reported it on that date was that he could no longer take the pain. I reject the Claimant's assertion that this was totally coincidental.

The JCC then found that Mr. Ullman did not sustain an injury as a result of an accident arising out of and in the course of his employment. Because of his conclusion that no industrial accident occurred, the JCC denied benefits, without commenting on the medical opinions rendered by Drs. Folkman and Williamson.

In urging reversal, Ullman argues that the medical evidence is "unrefuted" that he received a traumatic injury to his low back in June of 1990 and that such injury was the result of an industrial accident while working for the City of Tampa. Ullman contends that a JCC may not reject unrefuted medical testimony as to causation without a reasonable explanation for doing so, and cites Philpot v. City of Miami, 541 So.2d 680 (Fla. 1st DCA 1989); Bray v. Electronic Door-Lift, Inc., 558 So.2d 43 (Fla. 1st DCA 1989); Severini v. Pan American Beauty School, Inc., 557 So.2d 896 (Fla. 1st DCA 1990); and Lindsay v. TVS Trucking Co., 565 So.2d 864 (Fla. 1st DCA 1990). We must determine then, whether the JCC failed to heed valid rules of law set out in these cases.

In Philpot, the court's recitation of the facts indicates that the claimant was "injured on August 9, 1984" when a highway exit sign fell on him. 541 So.2d at 681. The issue before the court concerned whether the claimant's post-traumatic neurosis and post-concussion syndrome diagnosed after the industrial accident caused a work-related disability. The opinion in Severini makes it clear that there was no dispute that the claimant suffered an industrial accident in December of 1987. The issue addressed by the court in that case was causation for medical problems complained of after March of 1988 where the claimant suffered an intervening accident in February of 1988. Commenting specifically on the issue of causation as to claimant's medical condition after March of 1988, this court observed, as Mr. Ullman points out, "the judge may not reject unrefuted medical testimony of a party's expert witness without a reasonable explanation for doing so" (e.s.). 557 So.2d at 897. The court in Bray observed at the outset that the "record reflects that claimant fell at work on April 18, 1988," and suffered immediate observable injuries. 558 So.2d at 44. Thus, and again in the words of the court, "the occurrence of an accident at work is undisputed." Id. at 47. This court reversed a finding by the JCC that claimant's medical condition was unrelated to his employment. Finally, in Lindsay the facts reveal that claimant, a delivery truck driver, fell on a loading dock on August 16, 1987, and reported the injury to his employer upon his return to headquarters the next day. The issue before the court was medical causation, specifically whether the August 16, 1987, injury aggravated a preexisting condition. Claimant's doctor offered testimony favorable to him on a question of causation. Nonetheless, the JCC rejected such testimony. This court reversed, finding, "[c]ausation of non-observable injuries is essentially a medical question." 565 So.2d at 866.

Ullman supplements his claim of unrefuted medical testimony by pointing out that Dr. Williamson was never asked whether his opinion would have changed if the history provided had been changed to reflect the matters proven by the E/C at the hearing, and observed by the JCC in his order. According to Ullman, this kind of failure has been previously found by the court to require reversal of a denial of a workers' compensation claim in Calleyro v. Mt. Sinai Hospital, 504 So.2d 1336 (Fla. 1st DCA 1987), rev. denied, 513 So.2d 1062 (Fla.1987).

Our reading of these cases, in each of which this court reversed a finding adverse to the claimant, reveals that each case turned on the problems inherent where a JCC substitutes his judgment in place of the unequivocal opinion of an expert physician on an issue particularly within the province of the expert. This observation is supported by reference to Calleyro. In that case it was undisputed that claimant suffered an on-the-job accident on July 1, 1982, resulting in a broken ankle. Claimant spent several months in a cast, and was unable to work for quite some time. Subsequent to the accident, she became anxious and depressed...