Arand Construction Co. v. Dyer

592 So. 2d 276, 1991 Fla. App. LEXIS 12541, 1991 WL 265010
CourtDistrict Court of Appeal of Florida
DecidedDecember 13, 1991
Docket91-250
StatusPublished
Cited by8 cases

This text of 592 So. 2d 276 (Arand Construction Co. v. Dyer) 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
Arand Construction Co. v. Dyer, 592 So. 2d 276, 1991 Fla. App. LEXIS 12541, 1991 WL 265010 (Fla. Ct. App. 1991).

Opinion

592 So.2d 276 (1991)

ARAND CONSTRUCTION CO., and Travelers Insurance Co., Appellants,
v.
Duford DYER, Appellee.

No. 91-250.

District Court of Appeal of Florida, First District.

December 13, 1991.
Rehearing Denied January 22, 1992.

*277 Margaret E. Sojourner of Frank & Brightman, Orlando, for appellants.

Robert A. Wohn, Jr. of Wohn & McKinley, P.A., Cocoa, for appellee.

MINER, Judge.

The question presented in this appeal of an order awarding workers' compensation benefits is whether competent substantial evidence supports a finding by the Judge of Compensation Claims (JCC) that appellee/claimant is permanently and totally disabled as the result of an industrial accident which occurred in 1980. Finding no such evidence in the record, we reverse.

On January 23, 1980, appellee/claimant, a 52-year-old man with an eighth grade education, was employed by appellant/employer, Arand Construction Co., doing rough carpentry. While putting a roof on a building, he reached over to lift a sheet of plywood, and "when I picked it up it felt like somebody just hit me right across the belt line with a hickory or something." Claimant was treated by Drs. Tessler and Caldwell for his low back injury. The parties stipulated to compensability and further stipulated that claimant reached MMI on December 31, 1985.

Although claimant was able to return to light duty with the employer shortly after the accident, his back problems forced him to stop working after approximately six weeks. He eventually found work in 1985 as a gas attendant, but repetitive bending and stooping forced him to leave after approximately one year. He then spent approximately six months doing light carpentry for another company but the employment ended when there was no more light work to be done. Claimant performed an unsuccessful job search and the employer/carrier (e/c) paid wage loss benefits through the date of the hearing in October 1990. In December of 1989, a claim was filed for permanent total disability benefits. The e/c took the position that the claimant was not PTD and that his current condition was not related to the January 1980 industrial accident.

Claimant testified that he had experienced problems with his low back prior to his 1980 industrial accident. He first had back problems in 1968 but there had been no problems for 6 to 10 years prior to his 1980 accident. Since the 1980 accident, claimant testified to having persistent back pain. Claimant's stiffness and soreness, which had been with him since the accident, did not go away for more than a few hours at a time. He testified that his pain permitted him to sit for no longer than 45 minutes, to stand for no longer than an hour, limited his walking and lifting, and would not permit repetitive kneeling or squatting. He testified that he could only *278 sleep 4 or 5 hours per night and had to lie down frequently during the day.

Dr. Richard Tessler, an orthopedic surgeon, testified by way of a 1981 deposition. He noted that claimant suffered from back problems since 1968 and that he first treated claimant for back problems in 1977, at which time he formulated a working diagnosis of sciatica which could have been caused by disc protrusion/degeneration or narrowing of the nerve canal.[1] An EMG performed in May 1980, which should have detected the nerve damage, was negative. This led Dr. Tessler to conclude that the nerve damage was only temporary. The following testimony was elicited concerning claimant's 1980 industrial accident:

[CLAIMANT'S ATTORNEY] In relating his injury of 1980 to his past, can you relate to me whether or not the 1980 accident or injury was some sort of a new incident or an aggravation of his old conditions?
[DR. TESSLER] I feel that since the patient presented to me in '77 with exactly the same signs that he presented to me in '80 and since he has had back troubles since 1968, that his condition in '80 is exactly as it was in '77, and I would be hard-pressed to say that this is a new condition. That is the first thing. Then the question is, is this an exacerbation of an old injury, and I would have to say that I cannot with reasonable medical certainty say that it is not. Does that make any sense, two negatives?
[CLAIMANT'S ATTORNEY] I will accept it.
[DR. TESSLER] Then I would say that it is an exacerbation of his old injury.

Dr. Tessler opined that the 1980 exacerbation was temporary, but also testified that claimant was permanently impaired. Dr. Tessler had not seen claimant since April 1980.

Dr. Jacques Caldwell, a rheumatologist and allergist, testified by way of depositions dated June 3, 1982, and July 11, 1990. When he first saw the claimant on June 11, 1981, approximately 18 months after the industrial accident, he initially diagnosed spinal stenosis. Dr. Caldwell explained that spinal stenosis involves an overgrowth of bone spurs on the facet-joints which narrow the openings for the nerve roots. The condition occurs with age, with the onset of arthritis, or due to injury. A CAT scan performed at this time confirmed spinal stenosis as well as "a little bit of a disc bulge." At his 1982 deposition, Dr. Caldwell was asked whether the condition could have been caused by the January 1980 industrial accident. The following exchange occurred:

[DR. CALDWELL] I think perhaps the X-ray changes would have developed over a much longer period of time, would be my guess. That would be my guess that it would develop over a long period of time, but that is not a solid, firm commitment, no.
[E/C's ATTORNEY] You could not say with any reasonable medical probability again that type of X-ray change you saw, specifically the overgrowth, did or did not occur in the period between January 23, 1980 and June 11, 1981, when you saw him?
[DR. CALDWELL] No, I can't say that. I cannot include or exclude that.

In his July 1990 deposition, Dr. Caldwell did not have claimant's records prior to 1984, and did not recollect his 1982 deposition testimony. He had been treating claimant with anti-inflammatory drugs, muscle relaxants and home exercise. He diagnosed claimant as having lumbar spondylosis, which the doctor defined as degenerative arthritis of the spine accompanied by hypertrophy of the bone; this condition could become symptomatic with a traumatic event. When asked directly concerning the cause of claimant's condition, Dr. Caldwell responded as follows:

[DR. CALDWELL] He's got inflammation in the joints, that caused his bony overgrowth. What brought the inflammation on, can be several — there's several *279 possibilities. One, it can come with normal aging process. Secondly, it can come by trauma or be aggravated by trauma. We just don't know. Sometimes infection can do it, but that's a rare cause in the spine.
[E/C's ATTORNEY] Do you have any opinion in this case as to what brought this about?
[DR. CALDWELL] No.

Claimant's attorney posed a hypothetical question in which Dr. Caldwell was asked to assume claimant's prior history of back pain and render an opinion within reasonable medical probability whether the 1980 injury caused claimant's present condition. Dr. Caldwell gave the following response:

[DR. CALDWELL] I definitely do not feel that the — that under the circumstances that the lifting caused the problem, given the circumstances that — the hypothetical situation that you just presented to me....

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Cite This Page — Counsel Stack

Bluebook (online)
592 So. 2d 276, 1991 Fla. App. LEXIS 12541, 1991 WL 265010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arand-construction-co-v-dyer-fladistctapp-1991.