Opinion
Case No. 1D01-1264.
Opinion filed May 7, 2002.
An appeal from an order of the Judge of Compensation Claims. Mark H. Hofstad, Judge.
Dorothy C. Venable and Betsy E. Gallagher of Gallagher Howard, Tampa, for Appellant.
Thomas P. Vecchio of Ross, Williams Vecchio, P.A., Lakeland, for Appellees.
Appellant appeals the order of the Judge of Compensation Claims (JCC) which held Appellant's 1990 knee injury, to the exclusion of his 1997 back injury, caused Appellant's disability and thus, his average weekly wage (AWW) should be based on his 1990 date of accident. Appellant argues the JCC's findings are not supported by competent, substantial evidence. Appellees argue the JCC's findings are supported by competent, substantial evidence and, because the JCC's conclusion did not turn on an issue of law but one of fact, appellate relief is precluded. We agree with Appellant and reverse.
The parties stipulated that the only issue before the JCC was the determination of Appellant's correct AWW.
"The causal connection between the industrial accident and the claimant's injury or disability must be established by a `reasonable degree of medical certainty.'" Loyed v. Hillsborough County Sch. Bd., 765 So.2d 731, 732 (Fla. 1st DCA 2000). "[T]he determination of major contributing cause is a factual determination for the JCC to make based upon both medical and lay evidence in the record." Id.; see also Closet Maid v. Sykes, 763 So.2d 377, 382-383 (Fla. 1st DCA 2000) (en banc). "[T]he JCC may accept the testimony of one doctor over another, and may reject unrefuted medical evidence he or she disbelieves provided a reason is given." Loyed, 765 So.2d at 732, quoting D'Andrea v. Wal-Mart Stores, Inc., 711 So.2d 1373, 1374-1375 (Fla. 1st DCA 1998). Lay testimony, although insufficient to establish a causal connection as to conditions and symptoms not readily observable, has probative value in establishing the sequence of events, pain, inability to work, and other factors within the actual knowledge of the claimant. McCall v. Dick Burns, Inc., 408 So.2d 787, 792 (Fla. 1st DCA 1982).
Here, the record contains no evidence that Appellant's 1990 knee injury, to the exclusion of his 1997 back injury, was the sole cause of his disability. Dr. Balis, a neurosurgeon, was the only physician to testify, and his testimony was provided to the JCC by deposition. Dr. Balis' unrefuted testimony was that Appellant's back injury was the major contributing cause of his current condition and back pain; was a "severe incapacitating problem"; aggravated or accelerated his disability; and alone warranted sedentary work restrictions. While the JCC is permitted to reject unrefuted medical testimony he disbelieves, he must give a reason. Loyed, 765 So.2d at 732. The JCC failed not only to give a reason for rejecting Dr. Balis' unrefuted testimony, but also to mention the testimony altogether. Moreover, Appellant testified that, although his back hurt "all the time," he was "stopped" by his knee because he could not walk, and if his knee had not worsened, his back injury would have prevented him from doing the same work because it required heavy lifting and was too painful.
The only evidence upon which the JCC appears to have relied in reaching his conclusion that the 1990 knee injury alone caused Appellant's disability was that Appellant did not miss work following his 1997 back injury, and did not return to work following his 1999 knee surgery. However, the record also indicates that, other than postoperative recovery times, Appellant did not miss work because of his knee surgeries in 1990 and 1995. Moreover, continuing to work, though in constant pain following an injury, does not preclude compensation for disability when pain forces cessation of work. Underwood v. Terminal-Frouge Builders, 128 So.2d 605, 607-608 (Fla. 1961). Thus, the fact that Appellant did not miss work following the 1997 accident does not, alone, provide competent, substantial evidence that the 1997 accident did not contribute to his overall disability. Further, there is no other competent, substantial evidence in the record to support the JCC's finding that the sole cause of Appellant's disability was his 1990 knee injury.
Because the parties stipulated Appellant's AWW was the sole issue for determination, in the interest of judicial economy and to provide guidance on remand, we address that issue. The pertinent period for an AWW determination is the commencement of disability, which occurs when the claimant's condition has deteriorated to the point he can no longer work. Hillsborough County Sch. Bd. v. Christopher, 790 So.2d 1267 (Fla. 1st DCA 2001). Here, Appellant became disabled in 1999, because his condition deteriorated to the point he could no longer work at that time.
REVERSED and REMANDED for an AWW award consistent with this opinion.
ERVIN and VAN NORTWICK, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.