Opinion
No. 87-2086.
April 11, 1989. Rehearing Denied May 11, 1989.
Appeal from the Deputy Commissioner, Patrick J. Murphy.
Alex Lancaster of Alex Lancaster, P.A., Sarasota, for appellant.
Claire L. Hamner of Dickinson, O'Riorden, Gibbons, Quale, Shields Carlton, Sarasota, for appellees.
The claimant, Teresa Mello, appeals a final order dismissing with prejudice her claim for permanent total disability benefits. We affirm.
The claimant contends that there is no competent substantial evidence to support the deputy commissioner's (deputy) determination that claimant never timely reported her second accident in April 1983 and there is no competent substantial evidence to support the deputy's finding that the job offered by the employer/servicing agent did not constitute sheltered employment.
This is another uncomplicated, straightforward case in which the sole issue is whether there is competent substantial evidence to support the deputy's decision. As the Supreme Court of Florida said almost 25 years ago in the case of Crowell v. Messana Contractors, 180 So.2d 329 (Fla. 1965):
In essence a resolution of this dispute involves an application of the rule long ago announced in United States Casualty Co. v. Maryland Casualty Co., 55 So.2d 741, and cited so many times since as almost to become hackneyed. It is that the deputy commissioners have the prerogative of determining questions of fact and that their conclusions will not be disturbed if they are supported by evidence the deputies believed so long as it is competent and substantial and comports with reason and logic. So we have often held that the reviews by the Full Commission and by this court will go no farther than the determination whether or not evidence the deputies chose to believe supported the conclusions reached, even though the reviewing body might have selected witnesses expressing a contrary view.Id. at 329-330.
Admittedly, there are some conflicts in the evidence in the instant case, and there may be some evidence that could support an award in favor of the claimant. However, that is not the issue before this court on appeal and the deputy's findings and conclusions should be sustained if supported by any view of the evidence and its permissible inferences. Gomez v. Neckwear, 424 So.2d 106 (Fla. 1st DCA 1982). As stated by the court in Crowell, it is not the function of the reviewing court to select witnesses expressing a contrary view.
The claimant sustained a compensable back injury in August of 1980. She reached MMI on February 26, 1981. She returned to work in November 1980 on a part-time basis and later began full-time employment. She continued to work full-time as food manager for approximately three years. On April 7, 1983 she was allegedly injured in a slip and fall accident in the kitchen of K-Mart and sustained an additional injury to her back. Prior to the alleged April 1983 accident claimant had been treated by Dr. Crist for the injuries sustained in her 1980 accident. Her first visit to Dr. Crist following April 7 was on May 4, 1983. Dr. Crist's records do not reflect that the claimant sustained an injury on April 7. Instead, he simply noted that her complaints are essentially unchanged from his previous evaluation. Claimant continued under treatment by Dr. Crist and it was his opinion that the claimant reached MMI August 30, 1983. On November 23, 1983, at the request of the employer-servicing agent, claimant saw Dr. Boring for an independent medical examination. Dr. Boring reported that the claimant told him she had slipped on some water or something slippery on the floor on April 7 and that she had twisted her lower back. Dr. Boring noted that the claimant thought the new accident had not been reported. There is no competent substantial evidence that the employer had notice of an alleged April 7, 1983 accident until it received the report of Dr. Boring more than seven months after the alleged accident. Claimant did not file the claim for benefits in connection with the alleged April 1983 injury until November 15, 1986, approximately three and one-half years after the injury.
The failure to notify the employer within 30 days will not necessarily bar a claimant's claim unless the employer had no knowledge of the injury and the failure to notify the employer prejudiced the employer. The employer expressly denied that the claimant reported such an accident. Although the claimant told Dr. Boring in November 1983, only seven months after the alleged accident that she did not think she reported the accident, she testified more than four years later at the December 3, 1987 final hearing that she did indeed report the accident and gave the name of the store manager she reported it to. There is competent substantial evidence to support the deputy's finding that the E/C had no knowledge of the alleged accident for a period of more than seven months.
There is also competent substantial evidence to support the deputy's determination that the employer was prejudiced by the claimant's failure to report her April 1983 accident. Although the injury allegedly occurred on April 7, 1983, the claimant's first visit to a doctor after the accident was on May 4, 1983, approximately one month later. Claimant failed to inform her treating physician, Dr. Crist, of her alleged April 7 accident. He continued to treat her as if the August 1980 accident was the source of her complaints, and was of the opinion that the claimant's complaints were caused by the 1980 accident. The employer could have required immediate medical attention if an accident had occurred and been duly reported, and could have made a prompt investigation. Failure to report the injury clearly hampered the employer's ability to investigate the alleged accident and determine if it was work-related. By the time the employer had knowledge of the alleged injury in November 1983, it was difficult, if not impossible, for the E/C to make an investigation to determine the true facts. There is ample competent substantial evidence to support the deputy's conclusion that the claimant failed to give timely notice and that this failure was prejudicial to the employer.
In addition to the prejudicial lack of timely notice, the claimant did not actually file a claim for benefits form in connection with the April 1983 injury until November 15, 1986, approximately three and one-half years after the alleged injury.
Section 440.19, Fla. Stat. provides that a claim must be filed within two years after the time of injury or within two years after the date of last payment of compensation or after the date the last remedial treatment or rehabilitative services were furnished by the employer. The record therefore clearly reflects that the claim was not timely filed.
The deputy also made an alternative finding that the claimant's refusal to return to sedentary employment offered by the employer amounted to a voluntary limitation of income because the work offered was within her limitations and disabilities and, therefore, did not constitute sheltered employment. There is competent substantial evidence to support this determination.
We affirm.
BOOTH and THOMPSON, JJ., concur.
ERVIN, J., dissents.
Although I agree with the majority that there is competent, substantial evidence (CSE) supporting the deputy commissioner's (deputy) alternative finding that claimant voluntarily limited her income, I cannot agree that CSE supports his finding that claimant's failure to report her 1983 injury was material and prejudicial to the employer/carrier (E/C). I would therefore reverse the order as to the determination relating to the lack of notice, affirm as to that of sheltered employment, and remand the case for further proceedings.
In my judgment, the deputy's ruling that the claimant had failed to furnish timely notice of the second injury to the E/C did not properly take into consideration that provision of Section 440.185(1)(b), Florida Statutes (1981), allowing the deputy to excuse claimant's "failure on the ground that for some satisfactory reason such notice could not be given." In our interpretation of the above provision, we have approved the following principle from Larson, stating that "`[t]he time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compensable character of his injury or disease.'" Slater v. United Parcel Serv., 507 So.2d 1146, 1148 (Fla. 1st DCA), review dismissed, 518 So.2d 1278 (1987) (quoting 3 A. Larson, Workmen's Compensation Law § 78.41(a) (1987)). See also Herb's Exxon v. Whatmough, 487 So.2d 1169, 1171-72 (Fla. 1st DCA 1986).
Although Dr. Crist testified that claimant never reported a second work-related injury to him, the record clearly reflects that no later than April 10, 1985, Dr. Crist was informed by the E/C of the possibility of the claimant having suffered a second industrial accident, and yet Dr. Crist never thereafter testified that the claimant's condition was caused by the later injury. In fact, Dr. Crist opined in his depositions of February 7, 1987 and November 24, 1987, that claimant's ten percent permanency rating was relatable to the first industrial injury occurring in 1980. I consider that because claimant was under the continuing care of Dr. Crist, a physician authorized by the E/C to treat claimant, both before and following her second injury, she may have reasonably believed that her unremitting sensations of pain were caused entirely by her first industrial injury; hence, there was no need to make a timely report of the second injury to her employer. Indeed, the deputy made no explicit finding in this regard.
The instant case is remarkably similar in its facts to those in Alaska State Hous. Auth. v. Sullivan, 518 P.2d 759 (Alaska 1974). There claimant had originally injured his knee in 1967, while working in a logging operation. Like claimant below, he was paid temporary compensation benefits for the injury. Following the initial accident, the injury flared up periodically and he constantly wore an elastic bandage around his knee. In 1970, while working for the second employer, he fell on his knee but did not report the fall or injury to anyone. Six months later, he filed a claim against both employers. Both defended by contending the claimant had failed to comply with the 30-day statutory notice requirement. The Supreme Court of Alaska held that his failure to provide notice complied with the satisfactory reason exception of the statute, in that the 1970 injury was not the type of injury that a reasonably prudent person would report at the time of its occurrence. Claimant had attributed his increasing pain to his 1967 injury, and even his doctors were unable to agree as to the specific cause of the injury. One doctor had concluded that the claimant's condition was attributable to the earlier 1967 injury, while another stated that he did not consider it possible to say whether claimant's condition was caused by the re-injury, or if it was coupled with, or due primarily to the initial injury. Based upon the inability of the treating physicians to agree upon the specific cause of claimant's disability, the court concluded that claimant could quite reasonably have believed that his pain following the second injury was caused by the original accident.
I apply the same reasoning to the present case. Dr. Crist, the second orthopedist authorized by the E/C to treat claimant, although informed by the E/C of the possibility of a second injury, never altered his opinion that his impairment rating of ten percent was solely attributable to the injury of August 1980. In fact, Dr. Crist testified that the employee's complaints, when he last saw her in November 1987, were similar to those when he first saw her in 1982, and were "part of the same spectrum of disease. . . ." For that reason, he stated that he believed her complaints were all related to her initial injury of 1980. Additionally, Dr. Crist stated that when he first saw claimant following her second injury, which was one month thereafter, her complaints were then essentially unchanged from the previous evaluation which occurred in 1982. Finally, Dr. Crist was never asked whether his opinion regarding the causation of claimant's injury would have changed if he had been informed by claimant that a second industrial injury occurred in April 1983. Cf. Curtis v. Florida Correctional Inst., 509 So.2d 1192, 1194 (Fla. 1st DCA 1987) (deputy erroneously rejected testimony of two psychiatrists who had opined that claimant's depression was causally related to her industrial accident for the reason that neither doctor stated that his opinion as to the causal relationship would have changed had he been fully apprised of claimant's psychiatric history); Calleyro v. Mt. Sinai Hosp., 504 So.2d 1336, 1337 (Fla. 1st DCA), review denied, 513 So.2d 1062 (1987) (psychiatrist never asked whether his opinion regarding causation of claimant's psychiatric injury would have changed if he had been aware of a prior single visit by claimant to a psychiatrist before the occurrence of the industrial accident). Given the above testimony by Dr. Crist, I consider that the deputy abused his discretion in refusing to excuse appellant's failure to furnish notice to the employer of the second injury, because appellant could reasonably have believed that her continuing complaints of pain were caused only by the initial work-related injury of 1980.
Additionally, I find no support in the record that the failure to so report was material and prejudicial. The E/C was provided with a report from Dr. Charles Boring, an orthopedist, dated November 28, 1983, in which he stated that appellant had suffered a back injury while working in the cafeteria of K-Mart in April 1983. There is nothing in the record supporting the deputy's determination that the E/C was prejudiced by the approximate seven-month delay from the date of injury until Dr. Boring's report was forwarded to it.
I would therefore reverse the deputy's first determination that the claimant's failure to provide statutory notice to the E/C was material and prejudicial, affirm as to his alternative finding of voluntary limitation of income, and remand the case for further proceedings.