Opinion
No. 94-429.
May 18, 1995. Rehearing Denied June 29, 1995.
Appeal from the Judge of Compensation Claims, Olivia Devonmille.
Louis Pfeffer of Adams, Coogler, Watson Merkel, West Palm Beach; and Marjorie Gadarian Graham, West Palm Beach, for appellants.
Debra H. Pierce of Lloyd, Hoskins Pierce, P.A., Ft. Pierce, for appellee.
In this workers' compensation case, the employer and carrier appeal from an order awarding benefits to the claimant, Susan D. Sloan. We affirm without discussion the first two points on appeal. As to the third point, the judge of compensation claims (JCC) determined that the testimony regarding the claimant's job duties and the medical evidence supported a finding that Sloan's tibial tendinitis condition constituted a compensable injury under the repetitive trivial trauma theory. As explained below, because competent substantial evidence supports this determination, we affirm this point as well.
At the hearing, Sloan testified as to her job duties and the JCC properly accepted this testimony. See Jones v. Citrus Central, Inc., 537 So.2d 1123, 1125 (Fla. 1st DCA 1989) (credibility of witness' testimony is solely for JCC to determine); Calleyro v. Mount Sinai Hosp., 504 So.2d 1336, 1337-38 (Fla. 1st DCA), review denied, 513 So.2d 1062 (Fla. 1987) (JCC occupies superior position over reviewing tribunal in assessing credibility of witness' live testimony). Further, Dr. Paul Gotkin testified that Sloan had an enlarged navicular bone, an inherited abnormality, and that this, coupled with her job duties, resulted in her injury. Specifically, when presented with hypothetical questions including Sloan's abnormality and detailing her job duties, Dr. Gotkin responded that, within a reasonable degree of medical probability, her employment could have caused her injury. In addition, Dr. Gotkin indicated in both his deposition testimony and in a letter to Sloan's attorney that, consistent with a repetitive trauma injury, Sloan's pain was characterized by a gradual onset of three weeks duration. Finally, Dr. Gotkin testified that Sloan did not tell him that she had suffered an acute injury; rather, she informed him that her pain began three weeks prior to her visit and had gradually increased. Thus, although Sloan testified at the hearing that she suffered an acute injury three weeks before she saw Dr. Gotkin, the JCC properly rejected this testimony. Competent substantial evidence therefore supports the JCC's finding that Sloan's condition constituted a compensable injury under a theory of repetitive trivial trauma. See Alvarez v. City of Tampa, 647 So.2d 301, 303 (Fla. 1st DCA 1994) ("Exposure to the alleged condition or activity on a constant daily basis or intermittently on a weekly basis serves as proof of causation, but such facts are not the controlling consideration; they must be considered with the evidence as a whole, including medical testimony regarding causation, when determining whether the alleged injury was caused by repeated traumas."); Patton v. Metal Indus., 636 So.2d 891, 892 (Fla. 1st DCA 1994) ("[E]ven a single medical opinion is sufficient to establish a causal relationship between a claimant's physical condition and the employment.").
AFFIRMED.
ZEHMER, C.J., and ALLEN, J., concur.
KAHN, J., dissents with written opinion.
This court is never permitted to substitute its judgment for that of the judge of compensation claims. Nonetheless, we must "guard against fanciful or arbitrary abuse of discretion in workers' compensation cases. . . ." Ullman v. City of Tampa Parks Department, 625 So.2d 868, 873 (Fla. 1st DCA 1993). Where the factual foundation for medical testimony is absent, such testimony lacks the necessary probative value to support a finding of causation. Gold Coast Paving Co., Inc. v. Fonseca, 411 So.2d 259 (Fla. 1st DCA 1982). In this case, I conclude that the judge abused her discretion. The opinion testimony from Dr. Gotkin that is critical to the decision under review is not supported by evidence of record.
Susan Sloan consistently took the position in this case that she suffered a discrete injury to her foot in September 1991 while loading parts into cages at her place of employment. The following comments taken from her depositions are typical: "It happened sometime in September, yes sir . . . I went to the doctor three weeks after the accident." "I was loading the cages . . . I felt a sharp pain . . . in my right foot. . . ." "I told (Dr. Gotkin) I hurt my foot and I don't know what caused the pain . . . I told him I was lifting something heavy when I hurt it." Sloan also told her supervisor that she had hurt her foot loading the parts. According to Sloan, this was the type of activity she engaged in daily and she never felt any pain in her foot before.
I acknowledge that Dr. Gotkin testified that when he first saw Sloan on October 2, 1991, she had "severe sharp shooting pain . . . characterized by gradual onset . . . the duration of the condition was approximately three weeks." This is simply at odds with Sloan's testimony that she felt a sharp pain in her foot on the date of the accident, and thereafter was required by that pain to limp up until the time she saw Dr. Gotkin. I have reviewed Dr. Gotkin's office chart for Sloan and note that his entry of October 2, 1991 does indicate three weeks duration with increased complaints, but does not indicate gradual onset.
The primary issue tried in this case was whether Sloan timely reported the workers' compensation injury to her employer after the September 1991 accident that she described. Judge Devonmille found in favor of the claimant on the notice question. The judge did this by finding that the accident never happened as Sloan testified, but rather, "instead, I find that the claimant sustained a gradual onset of her symptoms, which culminated in early 10/91, with her visit to Dr. Gotkin." Despite Sloan's direct and unequivocal testimony that she hurt herself on the job, Judge Devonmille found "that the claimant was reasonably unaware that her condition was causally related to her employment." The JCC then went on to find the injury compensable under the repetitive trivial trauma theory. Thus, irrespective of Sloan's testimony that she hurt herself in September of 1991 while performing a job related task, the judge found, not only that this did not happen, but that "the claimant was reasonably unaware that her condition was causally related to her employment until she first saw Mr. Lloyd (her workers' compensation lawyer)." Under this reasoning, the JCC excused the 30-day notice under section 440.185, Florida Statutes (1991), and found that notice several months later was timely. Benefits were then awarded under the repetitive trauma theory.
The trouble with this approach is the utter lack of evidence to support the gradual onset theory. A proffer of expert opinion, in this case Dr. Gotkin's testimony, is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion. Harris v. Joseph's of Greater Miami, Inc., 122 So.2d 561, 562 (Fla. 1960). I would reverse because the record contains no competent substantial evidence to support the claim that Sloan's tibial tendinitis was caused by repetitive trivial trauma.