ROBERT E. MIRLISENA, APPELLANT,
v.
CHEMLAWN CORPORATION AND GENERAL ADJUSTMENT BUREAU, APPELLEES

Fla. 1st DCA | 1988-06-24
No. 87-1210
SHIVERS and WIGGINTON, JJ., concur.
527 So. 2d 908 Florida District Court of Appeal, First District (1988) Negative Treatment
Cited by 8 cases

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Synopsis

In a workers' compensation appeal, the Florida First District Court of Appeal reversed a deputy commissioner's finding that an industrial automobile accident did not cause the claimant's injuries. The court held that the deputy improperly rejected uncontroverted medical testimony establishing a causal connection between the accident and the claimant's condition without providing sufficient reasoning.


Holding

The court held that a deputy may not reject uncontroverted medical testimony regarding causation without providing sufficient reasoning. The deputy's rejection of Dr. Feinstein's testimony was improper because the doctor's statement that the accident aggravated the claimant's preexisting condition was a proper basis for finding causation in workers' compensation. The case was reversed and remanded for reconsideration of the claim for benefits.


Headnotes

[1] A deputy commissioner may not reject uncontroverted medical testimony regarding causation without providing a sufficient reason.

[2] An aggravation of a preexisting condition can be causally related to an industrial accident for workers' compensation purposes.

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Key Quotes

“While a deputy may reject uncontroverted medical testimony as to causation in an appropriate case, he may not reject it without giving a sufficient reason for so doing.”

Establishes the standard of review for rejection of uncontroverted medical evidence in workers' compensation cases

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Facts & Procedural History

Robert Mirlisena was riding in the bed of a company pickup truck on March 21, 1986, when it collided with another vehicle. He had a preexisting right …

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

The claimant in this workers’ compensation action appeals from an order finding no causal connection between his condition and the industrial accident. We reverse.

Robert Mirlisena was working for Chem-lawn Corporation on 21 March 1986 when he was involved in an automobile accident. He was riding in the bed of a company pickup truck when the truck collided with another vehicle. A claim was filed for temporary total or temporary partial disability benefits, medical and rehabilitation benefits, attorneys’ fees, interest, penalties and costs. The employer/carrier stipulated that the accident was in the course and scope of employment, but contended that the claimant was not injured as a result.

The evidence showed that the claimant had a preexisting injury to his right shoulder resulting from a 1975 motorcycle accident that occurred while he was serving in the military. That accident dislocated the claimant’s right shoulder and, in 1983, a shoulder pin was surgically inserted. Two days before the industrial accident, on 19 March 1986, the claimant visited a Veterans Administration hospital, complaining of pain in his right shoulder. The only medical testimony before the deputy commissioner was the deposition testimony of Dr. Feinstein, an osteopath, and Dr. Bermann, an orthopedic surgeon. Both doctors causally related the claimant’s condition, albeit an aggravation of a preexisting condition caused by the motorcycle accident, to the industrial accident.

While a deputy may reject uncontro-verted medical testimony as to causation in an appropriate case, he may not reject it without giving a sufficient reason for so doing. Blocker v. Ardmore Farms, 524 So. 2d 1081 (Fla. 1st DCA 1988). Here, the deputy gave no reason for rejecting Dr. Bermann’s testimony. And the only reference in the order to Dr. Feinstein’s testimony is:

That the testimony of Dr. Feinstein causally relating the complaints of pain on March 19th to the automobile accident of March 21, 1986, cast doubt on the validity of his testimony.

However, the question and answer that led the deputy to his conclusion that Dr. Feinstein had causally related the complaints of pain on 19 March to the automobile accident on 21 March was as follows:

Q. Doctor, is it your testimony that a car accident two days after a man seeks hospital treatment for radicular pain caused the radicular pain you found in his arm?

A. Yes.

We interpret Dr. Feinstein’s answer to mean simply that, although the claimant had a preexisting problem causing pain, the accident aggravated that problem. A reading of Dr. Feinstein’s entire deposition supports that conclusion. Thus, we conclude that the above reference to Dr. Feinstein’s testimony is not a sufficient reason for rejecting the uncontroverted medical testimony as to causation.

Because we reverse the finding that claimant’s injuries are not compensable based on a lack of causal connection between the industrial accident and the claimant’s injuries, we remand for the deputy to reconsider the claim for benefits.

With regard to the temporary partial disability claim, however, we note that the question of whether the claimant carried his burden of proving a causal connection between his injuries and a change in employment status is a factual issue which has not yet been determined by the deputy. See Trujillo v. Southern Wine & Spirits, Shaw Ross Importers, Inc., 525 So. 2d 481 (Fla. 1st DCA 1988); Williams Roofing, Inc. v. Moore, 447 So. 2d 968 (Fla. 1st DCA 1984). REVERSED and REMANDED for further proceedings.

SHIVERS and WIGGINTON, JJ., concur.


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Citator

Cited By

  • Carson v. Gaineswood Condos., 532 So. 2d 28 (Fla. 1st DCA 1988)
    …this court has required the deputy to “offer a sufficient reason for rejecting expert medical testimony, especially if such testimony is unrefuted.” Blocker v. Ardmore Farms, 524 So. 2d 1081 (Fla. 1st DCA 1988). See also Mirlisena v. Chemlawn Corp., 527 So. 2d 908 (Fla. 1st DCA 1988). While generally, a deputy need not explain why he accepts the testimony of one doctor over that of several others, his discretion in this regard is not unbridled, since a deputy must still make “such findings of ultimate materia…
  • Mirlisena v. Chemlawn Corp. & Scott Wetzel Servs., 567 So. 2d 986 (Fla. 1st DCA 1990)
    …ZEHMER, Judge. The claimant has filed a notice of appeal from an order determining the amount of appellate attorneys’ fees to be awarded pursuant to this court’s order entered upon appellant’s successful appeal in Mirlisena v. Chemlawn Corp., 527 So. 2d 908 (Fla. 1st DCA 1988). We treat the notice of appeal as a motion for review pursuant to rule 9.400(c), Fla.R.App.P. See Zaremba Florida Co. v. Klinger, 550 So. 2d 1131 (Fla. 3d DCA 1989), grant the motion, vacate the order, and remand for entry of an…
  • Burris v. Goodyear, 577 So. 2d 1376 (Fla. 1st DCA 1991)
    …quare v. Drake, 557 So. 2d 115 (Fla. 1st DCA 1990). Further, while a JCC may under certain circumstances reject unrefuted medical testimony as to attendant care, it is improper to do so without giving sufficient reasons. Mirlisena v. Chemlawn Corp., 527 So. 2d 908 (Fla. 1st DCA 1988). Caron v. Systematic Air Services, 576 So. 2d 372 (Fla. 1st DCA 1991). It appears that Dr. Tessler’s testimony concerning the necessary attendant care is the only expert medical testimony concerning the claimant’s need for atten…

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