Wright v. Tarmac Florida, Inc.

603 So. 2d 1340, 1992 Fla. App. LEXIS 8973, 1992 WL 191331
CourtDistrict Court of Appeal of Florida
DecidedAugust 12, 1992
DocketNo. 91-1684
StatusPublished

This text of 603 So. 2d 1340 (Wright v. Tarmac Florida, Inc.) 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
Wright v. Tarmac Florida, Inc., 603 So. 2d 1340, 1992 Fla. App. LEXIS 8973, 1992 WL 191331 (Fla. Ct. App. 1992).

Opinion

WIGGINTON, Judge.

Claimant brings this appeal from an order of the Judge of Compensation Claims denying his claim for benefits on the basis that his injury was not compensable. For the following reasons, we reverse and remand for further proceedings.

Claimant’s job responsibilities with the employer primarily involved his driving a concrete truck. That responsibility, in turn, generally included attaching concrete chutes weighing between 30 and 40 pounds, washing the truck following a pouring of a load of concrete, returning the chutes to their locked positions, and returning the truck to the plant to repeat the process. It was not unusual for claimant to carry three or four loads a day. In addition, claimant drove a dump truck in which he delivered mason sand, rebar wire and mesh wire. Occasionally, he would also drive a front-end loader for the employer. It should be noted that the driving of this equipment to and from the job sites [1342]*1342often entailed his jostling over uneven terrain.

A claim was made for benefits in May 1990 based on a theory of repetitive trauma to his back, the trauma allegedly having led to a herniated disc and to a connected condition known as cauda equina syndrome, with related bladder and urinary tract problems. A notice to controvert was filed, and the employer/carrier defended on the basis of no injury in fact, no injury by accident, no notice, and no causal relationship between any alleged accident and claimant’s subsequent injuries. At the outset of the hearing, claimant was pointedly asked by the JCC whether he was indeed claiming on the basis of repetitive trauma, to which inquiry claimant responded in the affirmative.1

In her final order denying benefits, the JCC found no causal relationship between claimant’s alleged injuries and his employment. She based this finding upon the testimony of claimant, the history given to his various physicians, the insurance reports filed, and the testimony, in particular, of Dr. Uricchio, who had conducted a single examination of claimant approximately one year following the incident. The JCC specifically found that the deterioration of claimant’s disc became disabling as of the latter part of October 1989 following a “cough.” She accepted Dr. Uricchio’s testimony that the subsequent cauda equina syndrome was a progressive condition, and while there could have been some accumulative trauma at work, the trauma was no more significant than the day-to-day risk of trauma faced by claimant in his home or with which he involved himself in his social life. The JCC found no indication of a specific work activity causing the subsequent disability on any given dates of employment. Instead, she found that the innocuous “cough” was the “straw that broke Claimant’s back,” giving rise to his disability. She rejected the opinion of Dr. Redding, concluding that his opinion did not take into account the history of a cough initiating claimant’s complaints of pain and disability. She rejected Dr. Hood’s opinions because he seemed unsure of medical causation based upon a reasonable degree of medical probability.

In addition, the JCC found that claimant failed to give proper notice to the E/C and that the E/C had been prejudiced thereby.

On appeal, claimant raises several points challenging the JCC’s findings and conclusions of law. Initially, we agree with claimant that there is indeed an absence of competent and substantial evidence to support the JCC’s order on the issue of com-pensability, as well as a concomitant error in her determination that claimant failed to satisfy the necessary elements of the repetitive trauma theory. Moreover, we also agree with claimant that under the circumstances, his failure to give notice was excusable.2

To begin our analysis, we agree with claimant that there are a number of flaws in the JCC’s findings of fact. For example, there is no evidence in the record supporting her finding that the deterioration of claimant’s disc became disabling as of “the latter part of October, 1989 following a cough.” In the testimony of both Dr. Uricchio and Dr. Hood, the cough was viewed as the precipitating cause of claimant’s symptoms and pain, but never as the sole cause of the resultant cauda equina syndrome. While Dr. Uricchio did testify that the accumulated trauma at work was no more significant than the day-to-day risk of trauma in claimant’s home or social life, Dr. Uricchio’s ignorance of claimant’s day-to-day living conditions at the relevant point in time erodes the probative value of his opinion.

Notwithstanding, there was no question in Dr. Uricchio’s mind that with claimant’s coughing episode having set the stage, [1343]*1343multiple repetitive episodes could have thereafter actually caused the rupture of the disc. In that respect, it was Dr. Uric-chio’s considered opinion that claimant probably had suffered some earlier injury to his disc (perhaps two to three times) resulting in some annular cracks and dehydration, and that the cough caused a greater split in the first part of the disc herniation. Dr. Uricchio went on to opine that over the next two months following the cough, this deterioration progressed due to various other more minor episodes of trauma, leading ultimately to the final retropulsion of the disc. That opinion, in fact, is not inconsistent with the opinion of Dr. Hood, who, however, accorded more significance to claimant’s work activities.

The "JCC also stated there was no indication that a specific work activity caused the subsequent disability on any given date of employment. That finding is in fact correct; however, the finding is nonetheless irrelevant to a repetitive trauma-type theory of compensability which does not require a single, unexpected or unusual event. See Slater v. United Parcel Service, 507 So.2d 1146 (Fla. 1st DCA 1987).

As discussed above, the JCC further found that it was the cough “that was the straw that broke the Claimant’s back giving rise to the Claimant’s disability.” Again, there is absolutely no evidence in the record to support such a finding. Rather, it was Dr. Uricchio’s opinion that it was “something [that] happened a day or two before the MRI that finally ‘broke the camel’s back’ ” (emphasis added), but Dr. Uricchio could not pinpoint exactly what single episode precipitated the ultimate rupture.

As to Dr. Redding’s opinion, we likewise find discrepancies between the JCC’s findings and the actual evidence. Significantly the JCC rejected Dr. Redding’s opinion on the basis it did not take into account the history of a cough initiating claimant’s complaints of pain and disability. However, it is clear from the doctor’s deposition that once he was informed of that fact, he was unwilling to accord the coughing episode the status of a precipitating cause of the herniated disc.

Finally, the JCC’s reason for her rejection of Dr. Hood’s opinion is completely unfounded. Although Dr. Hood—as was true with every other physician testifying—was unsure as to the actual date of the disc rupture, he was absolutely and emphatically certain regarding the medical causation as being an “accumulation of stresses to the disc over a period of time.” At one point, Dr. Hood opined that claimant’s work “was just one of many factors in a series of events leading to his ruptured disc.” Nonetheless, he went on to state that claimant’s job was “a very significant source of aggravation” to claimant’s back that ultimately resulted in claimant’s profound problem.

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Related

Slater v. United Parcel Service
507 So. 2d 1146 (District Court of Appeal of Florida, 1987)
Moldthan v. Sentinel Communications Co.
510 So. 2d 1185 (District Court of Appeal of Florida, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
603 So. 2d 1340, 1992 Fla. App. LEXIS 8973, 1992 WL 191331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-tarmac-florida-inc-fladistctapp-1992.