Vadala v. Polk County School Board, 01-1264

• Decision Date: 07 May 2002
• Docket Number: 01-1264,1
• Parties: SAMUEL J. VADALA, APPELLANT, v. POLK COUNTY SCHOOL BOARD AND INTEGRATED ADMINISTRATORS, APPELLEES. CASEIN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
• Court: Florida District Court of Appeals

SAMUEL J. VADALA, APPELLANT v POLK COUNTY SCHOOL BOARD AND INTEGRATED ADMINISTRATORS, APPELLEES

CASE No. 1D01-1264

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

May 7, 2002

An appeal from an order of the Judge of Compensation Claims. Mark H. Hofstad, Judge.

Dorothy C. Venable and Betsy E. Gallagher of Gallagher & Howard, Tampa, for Appellant.

Thomas P. Vecchio of Ross, Williams & Vecchio, P.A., Lakeland, for Appellees.

Browning, J.

Appellant appeals the order of the Judge of Compensation Claims (JCC) which held Appellant's 1990 knee injury, to the exclusion of his 1997 back injury, caused Appellant's disability and thus, his average weekly wage (AWW) should be based on his 1990 date of accident. ¹ Appellant argues the JCC's findings are not supported by competent, substantial evidence. Appellees argue the JCC's findings are supported by competent, substantial evidence and, because the JCC's conclusion did not turn on an issue of law but one of fact, appellate relief is precluded. We agree with Appellant and reverse.

"The causal connection between the industrial accident and the claimant's injury or disability must be established by a `reasonable degree of medical certainty.'" Loyed v. Hillsborough County Sch. Bd., 765 So. 2d 731, 732 (Fla. 1st DCA 2000). "[T]he determination of major contributing cause is a factual determination for the JCC to make based upon both medical and lay evidence in the record." Id.; see also Closet Maid v. Sykes, 763 So. 2d 377, 382-383 (Fla. 1st DCA 2000) (en banc). "[T]he JCC may accept the testimony of one doctor over another, and may reject unrefuted medical evidence he or she disbelieves provided a reason is given." Loyed, 765 So. 2d at 732, quoting D'Andrea v. Wal-Mart Stores, Inc., 711 So. 2d 1373, 1374-1375 (Fla. 1st DCA 1998). Lay testimony, although insufficient to establish a causal connection as to conditions and symptoms not readily observable, has probative value in establishing the sequence of events, pain, inability to work, and other factors within the actual knowledge of the claimant. McCall v. Dick Burns, Inc., 408 So. 2d 787, 792 (Fla. 1st DCA 1982).

Here, the record contains no evidence that Appellant's 1990 knee injury, to the exclusion of his 1997 back injury, was the sole cause of his disability. Dr. Balis, a neurosurgeon, was the only physician to testify, and his testimony was provided to the JCC by deposition. Dr. Balis' unrefuted testimony was that Appellant's back injury was the major contributing cause of his current condition and back pain; was a "severe incapacitating problem[]"; aggravated or accelerated his disability; and alone warranted sedentary work restrictions. While the JCC is permitted to reject unrefuted medical testimony he disbelieves, he must give a reason. Loyed, 765 So. 2d at 732. The JCC failed not only to give a reason for rejecting Dr. Balis' unrefuted testimony, but also to mention the testimony altogether. Moreover, Appellant testified that, although his back hurt "all the time," he was "stopped" by his knee because he could not walk, and if his knee had not worsened, his back injury would...