Above All Drywall v. Shearer

651 So. 2d 195, 1995 WL 73560
CourtDistrict Court of Appeal of Florida
DecidedFebruary 24, 1995
Docket93-0124
StatusPublished
Cited by3 cases

This text of 651 So. 2d 195 (Above All Drywall v. Shearer) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Above All Drywall v. Shearer, 651 So. 2d 195, 1995 WL 73560 (Fla. Ct. App. 1995).

Opinion

651 So.2d 195 (1995)

ABOVE ALL DRYWALL and FACCA, Appellants,
v.
James SHEARER, Appellee.

No. 93-0124.

District Court of Appeal of Florida, First District.

February 24, 1995.
Rehearing Denied March 27, 1995.

H. George Kagan and Helene H. Morris, of Miller, Kagan and Chait, West Palm Beach, and John E. McLain, III and Mark S. Spangler of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for appellants.

Frederick Daniels, Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellee.

BARFIELD, Judge.

Above All Drywall and Florida Air Conditioning Contractors Association (E/SA) have appealed an order of the judge of compensation claims (JCC) in which the JCC found the claimant's Amyotrophic Lateral Sclerosis (ALS or Lou Gehrig's disease) condition to be compensable. We reverse and remand for further proceedings.

The claimant had worked for the employer for several years as a drywall finisher. On June 14, 1990, he felt a sharp pain in his back as he bent over to pick up a scaffold board. The claimant saw a chiropractor on two occasions. When his discomfort did not improve, the claimant began treatment in September of 1990 with Dr. Bloome, an osteopath. At this time, his symptoms had progressed to include atrophy of the right arm and a peculiar *196 rash. After testing and consultations with Dr. Farber, a neurologist, the claimant was diagnosed in December of 1990 as suffering from ALS.

When the claimant initially reported a minor back injury on September 21, 1990, the E/SA accepted the injury as compensable. The E/SA discontinued benefits after the diagnosis of ALS and the claimant filed claims for certain benefits, which included temporary partial disability from June 17, 1990 to the date of the hearing, wage loss benefits post maximum medical improvement, continued treatment by Dr. Bloome, and attendant care.

The JCC accepted the testimony of Dr. Bloome, the treating osteopath, and Dr. Sabow, a neurologist with a general practice in South Dakota, whose depositions were introduced. Dr. Bloome and Dr. Sabow each stated that with all probability, the low back injury that claimant suffered at work while lifting the scaffold was most likely the cause of the onset of the ALS. Both Dr. Sabow and Dr. Bloome stated that their opinions were based on their experience of seeing trauma which is followed by what turns out to be ALS and on epidemiological studies which show a significant percentage of injuries preceding ALS.

The JCC noted that Dr. Sabow's explanation of the trauma/ALS relationship is well reasoned, and did not contradict the testimony of Drs. Tandan, Robert, or Farber, all of whom are also neurologists. Each of these neurologists, however, testified that no one knows what causes ALS. Although each of these neurologists noted that one theory of causation is trauma, they also testified that studies regarding this theory involve severe trauma, such as having a hand caught in machinery or being struck by lightning, not the type of trauma incurred by the claimant. Dr. Robert testified that ALS is "a disease that we do not understand regarding what is the mechanism, but certainly we do not associate this condition with any type of trauma or injuries." He was not aware of any scientific evidence which links trauma to ALS. Each of these neurologists also noted that epidemiological studies indicate an association rather than causation;[1] because ALS is a degenerative disease which causes weakness, it is not uncommon for a person to experience some type of trauma due to weakness before a diagnosis of ALS is made.

The E/SA presented the testimony of Dr. Munsat, a neurologist who has studied ALS, including causation of the disease, for approximately thirty years and who sees approximately 250 ALS patients each year. Dr. Munsat testified that there is only one known cause of ALS, which is genetic. He stated that in ninety percent of the cases, there is no known cause. Dr. Munsat noted that there were two active theories as to the cause of ALS. One theory is that it is caused by an immunologic event and the second is that it is caused by a toxin in the blood called glutamate. He stated that beyond those two active hypotheses, there are a number of other speculations regarding causation, including trauma, but that there was little, if any, scientific support for these theories. Dr. Munsat expressed the opinion that there is no scientific evidence that trauma is a causative factor in ALS.

The opinions relied upon by the JCC to support the finding of causation, expressed by the treating osteopath and the neurologist with a general practice in South Dakota, appear incredible in light of substantial evidence that except for those cases in which the disease is genetic there is no known cause of ALS. The E/SA essentially argue that the opinions relied upon by the JCC are not supported by or based on credible evidence. The E/SA, however, made no objections to, or motions to strike, the testimony for lack of competency. The competency issue, therefore, has not been properly preserved for appellate review. Roose & Griffin Landscape Contractors v. Weiss, 558 So.2d 102 (Fla. 1st DCA 1990). The E/SA ask this court to reject the opinions relied upon by the JCC notwithstanding the failure to object because those opinions amount to no more than junk science, i.e., they are so insubstantial as to provide no evidentiary support for *197 the JCC's finding of causation. See De Groot v. Sheffield, 95 So.2d 912 (Fla. 1957). It is not yet necessary for this court to weigh into this determination because we are sending the case back to the JCC who will have another opportunity to weigh the evidence.

We conclude that it is necessary to remand this matter for further proceedings. The JCC rejected the testimony of Dr. Munsat for several reasons, none of which are legally sound. The JCC first noted that Dr. Munsat was called by the E/SA and it was therefore not surprising that his testimony was that there was no causal relationship between trauma and ALS. Dr. Bloome, however, was called by the claimant and Dr. Sabow's deposition was taken and submitted by the claimant. The JCC also noted that the circumstances of Dr. Munsat's payment (four hundred dollars per hour fee, portal to portal from Boston, including his time asleep, which equates to approximately $12,000) led him to place less reliance on his testimony than his credentials would otherwise dictate. The JCC made no mention, however, of the fact that Dr. Bloome was owed approximately $48,000. Dr. Bloome had also made attempts to get financial assistance for the claimant from various entities. There is no apparent source from which this bill can be paid if the claim is not approved.

Another reason asserted by the JCC for rejecting Dr. Munsat's opinion was that his opinion conflicted with that of Dr. Tandan. During Dr. Munsat's testimony, the JCC inquired if he disagreed with Dr. Tandan regarding severe trauma such as electrical shock being a causative factor. Dr. Munsat replied that he thought that he and Dr. Tandan had no basic disagreement and that there was a big difference between trauma as described in the literature compared to the injury in the present case. Dr. Munsat knew of no support for the theory that persons could injure themselves by picking up an object and that such an injury would cause ALS, and he stated that the relationship between trauma and ALS was nothing more than a hypothesis, not yet proved as scientific fact.

Dr. Munsat's testimony did not conflict with the testimony of Dr Tandan in any material respect. Dr.

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651 So. 2d 195, 1995 WL 73560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/above-all-drywall-v-shearer-fladistctapp-1995.