ZALES CORPORATION AND CNA INSURANCE GROUP, APPELLANTS,
v.
GAIL CLARK AND MARYLAND CASUALTY INSURANCE, APPELLEES

Fla. 1st DCA | 1994-10-06
No. 93-2018
MINER and WOLF, JJ., concur.
643 So. 2d 108 Florida District Court of Appeal, First District (1994) Positive Treatment
Cited by 2 cases

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Synopsis

CNA Insurance appeals a workers' compensation order denying its reimbursement claim against Maryland Casualty and holding CNA solely liable for temporary disability and medical benefits for Gail Clark's back injuries. The court affirms, finding adequate factual support and no error in the admission of medical evidence or ex parte contacts with a defense witness.


Holding

The court affirmed the workers' compensation order, holding that CNA is responsible for Clark's treatment and temporary disability compensation due to aggravation or exacerbation of her preexisting condition from the second accident, with potential apportionment of later obligations possible. The court found no abuse of discretion in the amendment of the witness list and concluded that the ex parte contacts did not compel reversal absent a showing of prejudice.


Headnotes

[1] A worker's compensation order is supported by adequate record evidence on factual issues when the findings are detailed and persuasive.

[2] A trial court does not abuse its discretion by amending a witness list shortly before trial if the opposing party has independent knowledge of the witness and available m…

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Key Quotes

“The order correctly finds claimant's need for treatment and temporary disability compensation to be payable by CNA due to the aggravation or exacerbation of her previous condition by the second accidental injury.”

Establishes the court's holding that CNA bears responsibility for benefits based on aggravation of preexisting condition

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Facts & Procedural History

Gail Clark suffered back injuries in two separate workplace accidents while employed by Zales Corporation: the first in 1986 (covered by Maryland Casu…

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Opinion of the Court
WENTWORTH, Senior Judge.

WENTWORTH, Senior Judge.

This is an appeal from a worker’s compensation order denying appellant CNA Insurance Group’s motion for reimbursement from appellee Maryland Casualty Insurance Company, and finding CNA solely responsible for temporary disability compensation and medical benefits. We affirm, finding adequate record support on the fact issues, and no error in the admission of a medical deposition or as to ex parte contact with the witness.

Claimant Gail Clark suffered back injuries in two accidents in the same employment with Zales Corporation, the first in 1986 when Maryland Casualty was the carrier, and the second in 1990 when CNA was the carrier, 26 months after returning to work from intervening surgery. Claimant testified she has been unable to work because of disabling pain since January 19, 1991.

Based on detailed and persuasive analysis of the character and contents of deposition testimony from claimant’s treating physician for both accidents, Dr. Fitzgerald, the order on appeal rejects his opinion as to MMI in February 1992 from the 1990 accident. The order accepts, instead, the opinion of Dr. Kohler, a neurosurgeon who evaluated claimant in November 1992 at the request of appellant CNA and recommended specific repeat neurological tests, which apparently had not been done at the time of the January 1993 hearing. Dr. Kohler stated, notwithstanding agreement with a preexisting 15 percent permanent impairment rating from the first accident, that he “cannot at this time determine the extent of additional impairment until the ... recommended studies are done, nor can he apportion the degree of said impairment to each of these accidents.” The order correctly finds claimant’s need for treatment and temporary disability compensation to be payable by CNA due to the aggravation or exacerbation of her previous condition by the second accidental injury. Potential apportionment of later obligations is expressly noted in the order. As to alleged error in the amendment of Maryland Casualty’s witness list two days before trial, upon discovery of Dr. Kohler’s examination, we find no abuse of discretion. Adelman Steel Corp. v. Winter, 610 So. 2d 494 (Fla. 1st DCA 1992); Binger v. King Pest Control, 401 So. 2d 1310 (Fla.1981). CNA clearly had independent knowledge of the witness and had available means to ameliorate any claimed prejudice prior to or at deposition, and did not seek post-hearing deposition. There was no showing of disruption of trial.

The two claimed unauthorized ex parte contacts by CNA with Dr. Kohler were examined below on rehearing. A telephone call to set up deposition was found to involve only a ministerial function, and a letter request for clarification of a report “was a unilateral ex parte communication that was not responded to by Dr. Kohler prior to his deposition.” In the absence of a showing of prejudice, or any objection or inquiry at the time of deposition, we conclude the contacts in these particular circumstances are not comparable to those involved in Adelman, supra at p. 505, and do not compel reversal.

AFFIRMED.

MINER and WOLF, JJ., concur.


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Citator

Cited By

  • Walters v. Keebler Co. & Crawford & Co., 652 So. 2d 976 (Fla. 1st DCA 1995)
    …. See also Rose. Binger further indicates that when the opposing party is not prejudiced by the late disclosure, and compelling circumstances are not otherwise shown, the witness should generally be allowed to testify. See also Zales Corp. v. Clark, 643 So. 2d 108 (Fla. 1st DCA 1994). Because there was no showing or assertion of prejudice or other compelling circumstances in the present case, the judge should have allowed the coworker to testify. The appealed order is therefore reversed, and this case is re…

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