MARY KILDAY, APPELLANT,
v.
MEDICAL STAFFING SERVICES AND AETNA INSURANCE COMPANY, APPELLEES
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In this workers' compensation appeal, the court reversed a deputy commissioner's finding that an employee's cervical disc injury was not causally related to her workplace knee injury. The court found the commissioner based his ruling on a factual error regarding inconsistencies in the employee's testimony about when neck pain began.
The court held there was no genuine discrepancy in the appellant's testimony regarding the onset of cervical pain, as both her deposition and hearing testimony consistently stated that neck pain began a couple of days after the accident. Because the deputy commissioner's decision was based at least in part on this non-existent discrepancy, the case was remanded for reconsideration.
[1] A deputy commissioner's factual finding based on a perceived discrepancy in a claimant's testimony must be reconsidered if the record shows that the discrepancy does not…
[2] The logical cause doctrine and statutory presumptions may require a finding of causal connection between an industrial accident and a subsequent injury.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“At the deposition of September 12, 1979, appellant testified on cross-examination, that her neck pain began a couple of days after the accident. This testimony is consistent with the testimony given by appellant at the hearing.”
Establishes that there was no actual discrepancy in the appellant's testimony, undermining the factual basis for the deputy commissioner's decision.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMary Kilday, a licensed practical nurse, felt a sudden popping sensation in her right knee while getting up from her desk at work to check on a patien…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is a timely appeal from an order of a deputy commissioner finding appellant’s neck injury was not a result of her industrial accident. Appellant argues that the logical cause doctrine and the presumption of Florida Statutes § 440.26 require a finding of a causal connection between the industrial accident and appellant’s neck injury. Appellant argues it was error for the deputy commissioner to hold otherwise.
Appellant, a certified licensed practical nurse, felt a sudden popping sensation in her right knee as she got up from her desk at work to check on a patient. Appellant reported the incident to the night supervisor, complaining that pain from the knee radiated up her right side. At the end of her work shift, appellant went to the emergency room of the hospital for treatment. Dr. Teperson placed her leg in a cast and instructed her to rest at home. At this first examination, appellant made no mention of the pain in her neck. After a couple of days at home, appellant developed neck pain which grew progressively worse until appellant was hospitalized and underwent cervical disc surgery.
In the compensation order, the deputy commissioner states that he arrived at his conclusion that the neck injury was not causally related to the industrial accident by considering the testimony of Dr. Teper-son and the discrepancy which he found in appellant’s testimony. The deputy noted that at appellant’s deposition, taken on September 12, 1979, appellant described the pain as being limited to her leg and foot with some radiation as high as her side. At the hearing, appellant testified that her neck pain began a couple of days after the accident. The deputy apparently considered this a significant discrepancy in appellant’s testimony as to the initial onset of cervical pain.
Our review of the record on appeal shows that the deputy commissioner has made a mistake in fact regarding the existence of a discrepancy in appellant’s testimony as to the onset of cervical pain. At the deposition of September 12, 1979, appellant testified on cross-examination, that her neck pain began a couple of days after the accident. This testimony is consistent with the testimony given by appellant at the hearing. Since the deputy commissioner based his order, at least in part, on what he believed to be a discrepancy in appellant’s testimony, and since it appears from the record on appeal that the discrepancy does not in fact exist, we remand this case to the deputy commissioner for reconsideration of the issue.
REVERSED and REMANDED.
LARRY G. SMITH, Jr., J., LILES, WOODIE A., Associate Judge (Ret.), and PEARSON, TILLMAN A., Associate Judge (Ret.), concur.