SCOTTY'S, INC. AND CRAWFORD AND COMPANY, APPELLANTS,
v.
JOHN H. JONES, APPELLEE

Fla. 1st DCA | 1981-02-11
No. TT-312
McCORD and SHIVERS, JJ., concur.
393 So. 2d 657 Florida District Court of Appeal, First District (1981) Caution
Cited by 27 cases

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Holding

The court held that there was insufficient evidence to establish a causal relationship between the accident and the claimant's back problems, and that the claimant failed to adequately demonstrate a loss of wage-earning capacity.


Headnotes

[1] A causal relationship between an industrial accident and a claimant's injuries must be established by a reasonable medical probability, which may be predicated upon lay o…

[2] Lay testimony alone is insufficient to establish a causal relationship between an accident and medical conditions not readily observable without examination.

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Facts & Procedural History

The employer/carrier appealed an order awarding permanent partial disability benefits. The claimant alleged back, neck, and arm injuries from an indus…

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Opinion of the Court
JOANOS, Judge.

JOANOS, Judge.

The employer/carrier appeal a Workers’ Compensation Order, awarding permanent partial disability benefits to the claimant, based on loss of wage earning capacity. We find merit in two points raised for review, and accordingly reverse.

The deputy commissioner found that the claimant had suffered an industrial accident which resulted in injuries to his back, neck and arms. Appellants do not dispute that the claimant’s neck and arm injuries were caused by his accident. However, they urge that there is not substantial, competent evidence to support the finding of a causal relationship between the accident and claimant’s back problems.

It is well established that a finding of a causal relationship must be based upon a reasonable medical probability — not possibility. Nelson v. Hebrew Home for Aged, 276 So. 2d 468 (Fla.1973). Reasonable medical probability may be predicated upon either lay or medical testimony. Orange County Board of County Commissioners v. Brenemen, 233 So. 2d 377 (Fla.1970). However, lay testimony is not sufficient to establish a causal relationship between the accident and conditions which are not readily observable or discoverable without medical examination. Decks, Inc. of Florida v. Wright, 389 So. 2d 1074 (Fla. 1st DCA 1980).

In the instant case, the claimant testified that he first began to experience pain in his lower back some nine to twelve months after the industrial accident. He also indicated that two months before the accident, he had pulled a muscle in his back, requiring him to miss time from work; but that he had not injured his back since the accident.

The only medical testimony on this issue is that of Dr. Montoya, one of the treating physicians. Dr. Montoya stated that it was unusual, but not completely impossible, to develop such a late onset of symptoms. However, he was “really doubtful” that claimant’s back problems were related to the industrial accident.

In cases where there is a lapse of time between the accident and the manifested results, proof of a causal relationship becomes critical. Wackenhut Corporation v. Ellis, IRC Order 2-3402 (April 18, 1978), cert. denied, 376 So. 2d 71 (Fla.1979). We find that the evidence here is insufficient to establish a causal relationship between claimant’s lower back problems and his industrial accident, within a reasonable medical probability. Therefore, that portion of the deputy commissioner’s order must be reversed.

The second assignment of error in this case is the finding that claimant sustained a 20% loss of wage earning capacity. Appellants contend that claimant failed to establish that he sought employment after reaching maximum medical improvement from his injuries. Such a showing is clearly required in order to justify an award of compensation based upon a diminution of wage earning capacity. Exxon Company v. Alexis, 370 So. 2d 1128 (Fla.1978). The deputy commissioner made no specific finding regarding claimant’s ability to obtain work on the open labor market, in his after-injury condition. The only evidence in this regard consists of notations in the medical reports of two treating physicians, to the effect that claimant had made several attempts to obtain employment, but had been refused, due to his disabilities. Such evidence is not adequate to sustain a finding of loss of wage earning capacity, because it does not specify when and where claimant sought employment, and whether or not the positions applied for were within claimant’s physical limitations. See Milex Southern Medical, Inc. v. Osuna, IRC Order 2-3763 (April 12,1979), cert. denied, 383 So. 2d 1200 (Fla.1980).

Nevertheless, it does appear that claimant did make some effort to obtain work, and it is undisputed that he was unable to return to his former employment as a truck driver. We believe, therefore, that claimant should not be strictly limited to a disability rating equivalent to his anatomical impairment.

In light of these facts, we feel that this issue should be remanded to the deputy commissioner for further findings in this regard, including consideration of any additional evidence on this point, which may be submitted by the parties.

Appellants next urge that the deputy commissioner erred in basing her determination of loss of wage earning capacity on the premise that the claimant can be rehabilitated. We find that any possible error in this regard would be in appellants’ favor, and, therefore, harmless.

The order is reversed as indicated above, and remanded for further consideration in accordance herewith.

McCORD and SHIVERS, JJ., concur.


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Citator

Cited By (26 total)

  • Flesche v. Interstate Warehouse & U. S. Fid. & Guar. Co., 411 So. 2d 919 (Fla. 1st DCA 1982)
    …the parties be given the opportunity to present additional evidence on the issues of claimant’s employability. Taylor v. Brennan Construction Company, 143 So. 2d 320 (Fla.1962); Trieste v. Anchell, 143 So. 2d 673 (Fla.1962); Scotty’s, Inc. v. Jones, 393 So. 2d 657 (Fla. 1st DCA 1981); Pearson v. City of Miami Beach, 399 So. 2d 1135 (Fla. 1st DCA 1981).…
  • Closet Maid & Crawford & Co. v. Sykes, 763 So. 2d 377 (Fla. 1st DCA 2000)
    …1990); Computer Prods., Inc. v. Williams, 530 So. 2d 1006, 1007 (Fla. 1st DCA 1988); Holmes v. Homosassa Springs, Inc., 466 So. 2d 1236, 1237 (Fla. 1st DCA 1985); Turner v. Harmon, 438 So. 2d 1030, 1031 (Fla. 1st DCA 1983); Scotty’s, Inc. v. Jones, 393 So. 2d 657, 658-59 (Fla. 1st DCA 1981); Decks, Inc. of Fla. v. Wright, 389 So. 2d 1074, 1076 (Fla. 1st DCA 1980); see also, Orange County Bd. of County Comm’rs v. Brenemen, 233 So. 2d 377, 379 (Fla.1970). Lay testimony was not enough to show so much as a caus…
  • …al conditions and symptoms involving ordinary evidentiary credibility standards as opposed to indispensable medical expertise. Cf., Orange County Board of County Commissioners v. Brenemen, 233 So. 2d 377 (Fla.1970). See also Scotty’s, Inc. v. Jones, 393 So. 2d 657 (Fla. 1st DCA 1981), and Deck’s Inc. of Florida v. Wright, 389 So. 2d 1074 (Fla. 1st DCA 1980), at 1076: “reasonable medical probability may be established by medical or lay testimony ... as to conditions and symptoms which are within the actual kno…

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