Opinion
CASE NO. 8:14-CV-642-T-17MAP
03-21-2017
ALBERT REMENTER, JR., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER
The Court presided over a bench trial which took place on October 13-15, and 19, 2015, to consider the negligence claim filed by Plaintiff Albert Rementer, Jr. against Defendant United States of America.
In the Joint Pretrial Statement the parties have identified the issues of fact which remain to be litigated:
1. Whether the Defendant was negligent in causing this accident;(Dkt. 15, Joint Pretrial Statement, p. 13).
2. Whether Plaintiff was comparatively negligent;
3. Whether Defendant's negligence resulted in injury to Plaintiff;
4. Plaintiff's damages;
5. Whether Plaintiff failed to mitigate damages by allegedly continuing to work after this accident; and
6. Whether Plaintiff's injuries meet the Florida No-Fault threshold.
At trial the Government made an oral Motion for Rule 52(c) Partial Finding (Dkt. 41), and a Renewed Motion for Rule 52(c) Partial Finding (Dkt. 43). Rule 52(c) authorizes the district court to enter judgment at any time a party has been fully heard on an issue and the court can make an appropriate disposition on the evidence. A judgment on partial findings under Rule 52(c) reversible only if the appellate court finds it to be clearly erroneous; the underlying conclusions of law are reviewed de novo. In this case, the Court is making Findings of Fact and Conclusions of Law pursuant to Rule 52(a). The Court denies the Motion for Rule 52(c) Partial Finding (Dkt. 41) and the Renewed Motion for Rule 52(c) Partial Findings (Dkt. 43).
At trial, Plaintiff Rementer made an oral Motion for Directed Verdict on the issue of liability (Dkt. 45). A directed verdict is proper only "[i]f the facts and inferences [viewed in favor of the party opposing a motion for directed verdict] point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict." If substantial evidence opposed to the motion exists, i.e. "Evidence of such quality and weight that reasonable and fair minded [persons] in the exercise of impartial judgment might reach different conclusions, "a directed verdict is improper." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en banc). The Court finds that there is substantial evidence in the record in opposition to the Motion for Directed Verdict, and therefore denies the Motion for Directed Verdict (Dkt. 45).
After considering all of the evidence, including the testimony of witnesses, the relevant exhibits, and the pleadings of the parties, the Court finds that Plaintiff Albert Rementer, Jr. failed to meet his burden to prove by a preponderance of the evidence that the damages sought by Plaintiff were proximately caused by the subject accident, and to prove the permanancy of Plaintiff's injuries which Plaintiff maintains were proximately caused by the accident.
To the extent that any findings of fact may constitute conclusions of law, they are adopted as such. To the extent that any conclusions of law may constitute findings of fact, they are adopted as such. I. Preliminary Issues A. Stipulated Facts
In the Joint Pretrial Statement, the parties stipulated to the following facts:
1. Time, date and place of occurrence. The Court notes that the accident took place on January 29, 2013 at 4:15 p.m. at the intersection of Gore St. and Highway 441 in Orlando, Florida.B. Judicial Notice
2. Jurisdiction and venue is proper in this Court.
3. At the time of the accident, Rafael Toribio was an employee of the USPS, in the course and scope of his employment and operating the vehicle with the permission of the USPS, which owned the vehicle.
4. Plaintiff timely filed an administrative claim with the USPS.
(Dkt. 15, Joint Pretrial Statement, p. 12).
The Court takes judicial notice of provisions of the Florida Driver's Handbook in effect on the date of the accident, January 29, 2013. II. FINDINGS OF FACT A. Claims and Defenses 1. Plaintiff Albert Rementer, Jr. brought a Complaint against the United States of America alleging negligence under Florida law through the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671, et seq. In the Complaint, filed on March 17, 2014, Plaintiff Rementer alleged that the United States Postal Service negligently operated and/or maintained a motor vehicle so that it collided with Plaintiff Rementer's motor vehicle, causing a permanent injury to Plaintiff's body as a whole, pain and suffering of both a physical and mental nature, disability, physical impairment, mental anguish, inconvenience, loss of capacity for the enjoyment of life, aggravation of an existing condition, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability earn money and loss of ability to lead and enjoy a normal life. Plaintiff Rementer further alleged that the losses are either permanent or continuing and Plaintiff Rementer will suffer losses in the future. Plaintiff Rementer demanded judgment for damages of $1,000,050.00 against Defendant, interest, costs of the action, and other relief deemed proper by the Court. 2. Plaintiff Rementer filed an administrative claim, SF 95, which included Plaintiff Rementer's property damage claim of $50,000 (12a), and personal injury claim of $1 million (12c), for a total claim of $1,000,050.00 (12d), for soft tissue neck and back injuries (10). (Defendant's Exhibit 1). 3. Defendant United States of America denied that the United States negligently operated and/or maintained the motor vehicle so that it collided with Plaintiff Rementer's motor vehicle, and denied that Plaintiff Rementer's alleged injuries, harm and/or damages were directly, actually or proximately caused by an agent, servant or employee of Defendant. B. Pre-Existing Condition 4. Plaintiff Rementer has a history of prior accidents which caused injuries to Plaintiff. These accidents include:
| 10/29/1997 | Motor vehicle accidentat work | whiplash injury to neck |
| 1/7/2003 | Fall while at work | pain, numbness and tinglingin left shoulder and back;left wrist |
| 2/21/2007 | Fall while at work | re-injury of left shoulder |
| 2010 | Lifting incident at work | low back injury |
| 9/17/2011 | Fall on water slide;hit head | blurry vision; head pain;forehead and left knee abrasion;concussion |
On April 30, 2004, Plaintiff Rementer executed the "Agreement Re: Workmen's Compensation" with Board of Pensions and Retirement of the City of Philadelphia. The payment records indicate that a monthly disability pension has been paid to Plaintiff Rementer from July, 2004 to date. [Def. Exh. 25].
The payment records indicate that from July, 2011 through July, 2013, an additional amount from the monthly disability pension was withheld. Plaintiff Rementer testified that this amount was for a child support obligation. 7. As to the worker's compensation accident of 2/21/2007 while Plaintiff Rementer was employed by Leary Management Group, Plaintiff Rementer filed a Petition for Benefits on June 18, 2007, seeking temporary total disability benefits from 2/21/2007 to the date of MMI, temporary partial disability benefits from 2/21/2007 to date of MMI, a correct determination of the Average Weekly Wage, interest and penalties on unpaid benefits, and costs and attorneys fees from the Employer/Carrier. The Petition states:
"PLEASE DESCRIBE ACCIDENT:8. As to the worker's compensation accident of 2010 in which Plaintiff Rementer injured his low back while Plaintiff Rementer was employed by Wal-Mart, Plaintiff Rementer testified that the lifting incident with the pallet of milk happened at some time in 2010 prior to October 31, 2010. Plaintiff Rementer testified that Plaintiff Rementer received medical treatment for a couple weeks for Plaintiff's injury; Plaintiff Rementer further testified that Plaintiff's claim for this accident was settled through worker's compensation. 9. Plaintiff Rementer testified that, while Plaintiff Rementer was employed by Wal-Mart from March, 2008 through October 31, 2010, Plaintiff Rementer injured his knee while at work at an unspecified time. 10. As to the water slide accident of 9/17/2011 at the Disney water park, Plaintiff Rementer testified that, after the accident, Plaintiff felt dizzy, left the park and went home. Plaintiff Rementer sought medical care at the Emergency Room of Florida Hospital at Celebration the next day, 9/18/2011, and, after that visit to the ER, did not have any further medical treatment for that accident. Plaintiff Rementer testified that Disney paid Plaintiff Rementer some money for the accident.
Claimant was dumping debris and fell off trailer re-injuring his left shoulder.
PART(S) OF BODY INJURED: left shoulder"
(Def. Exh. 10).
At trial, Plaintiff Rementer testified he received $7,500.00 in settlement of his worker's compensation claim against Leary.
(Def. Exh. 16,1-91; Def. Exh. 18, Mears WC 120-121) C. January 29, 2013 Accident 11. Plaintiff Rementer, the forward driver, testified that he was heading west on Gore Street, that the light was red as Plaintiff Rementer approached the intersection, that there were two cars ahead of Plaintiff's vehicle, that both vehicles were stopped, that Plaintiff Rementer's vehicle, a 2011 Dodge Caliber, came to a complete stop before the collision, that Plaintiff Rementer was wearing his seatbelt, that Plaintiff's windows were open, and the day was clear and dry. Plaintiff Rementer further testified that Plaintiff Rementer heard the screeching of tires, that Plaintiff looked up into his rear view mirror, and saw a van coming to an abrupt stop with skidding of tires right behind Plaintiff. Plaintiff Rementer testified that he had his left hand on the steering wheel, then the van tapped Plaintiff's vehicle, and Plaintiff Rementer pulled up on the emergency brake because Plaintiff Rementer did not want to hit the car in front of Plaintiff. 12. Rafael Toribio, the rear driver, testified that the light was green when he first turned down Gore Street, that the light changed from green to yellow to red, that one to three cars were stopped at the signal, that Plaintiff Rementer pulled out of the 7-11 into the same lane in which he was traveling, that he started to stop before Plaintiff Rementer pulled out of the 7-11, that the light was red at the time of the collision and Plaintiff Rementer's vehicle was at a complete stop at the time of the collision. 13. At trial, Plaintiff Rementer testified he did not remember pulling out of the 7-11 in front of Mr. Toribio. 14. Rafael Toribio testified that he saw Plaintiff Rementer pull out in front of him, that he had to shorten his stopping distance in order to not hit Plaintiff Rementer's vehicle, that he tried as much as possible not to hit Plaintiff's vehicle, that he did not slam his brakes on, that his tires were not squealing, that he came to a very slow stop and just tapped Plaintiff's vehicle, and that none of the equipment in the van moved at the time of the collision. 15. On direct examination, Rafael Toribio testified:
Q. Would you say Mr. Rementer cut you off?16. At trial, on redirect examination, Rafael Toribio testified:
A. He made a turn, he could do it. He didn't cut me off, no.
Q. He was able to pull out of the 7-11, get in the westbound lane of traffic and come to a complete stop as did the two or three cars in front of him before you collided with him; is that correct?
A. Before I collided with him, yes.
Q. Is it accurate or inaccurate that when Mr. Rementer pulled out from the 7-11, that he pulled out, got out, got in the lane of traffic in front of you and was able to come to a complete stop before the collision?
A. Yes, that is accurate.
Q. So he didn't cut you off suddenly?
A. No, he didn't cut me off suddenly.17. Plaintiff Rementer testified that he saw some scrapes on the bumper and a small dent in the bumper after the collision. 18. Rafael Toribio testified that he saw no damage to Plaintiff's vehicle, and saw no damage to the postal van. 19. Rafael Toribio testified that he asked Plaintiff Rementer if he was okay when he got out of the van and spoke to Plaintiff, and Plaintiff Rementer said he was fine. 20. On direct examination, Plaintiff Rementer testified that the tap was with "enough force to have me go some type either backward or forward and it was enough to jolt me." 21. On direct examination, Plaintiff Rementer testified:
Q. Okay. So after you asked him this question and he gave you his response, what's the next thing that happened?22. Plaintiff Rementer testified as to how Plaintiff felt after the collision when Plaintiff got out of the car:
A. I believe he asked me if I was okay.
Q. And what did you tell him?
A. I told him, I was just rattled, I was nervous, and I told him I think I'm okay, I think I'm okay.
"You know, I was shocked, my adrenaline was starting to flow, and I'm like, I can't believe that this just happened."23. Rafael Toribio testified that Plaintiff Rementer wanted to file a police report, so they went to the post office nearby ("the postal depot") to do that. 24. Plaintiff Rementer testified that after Plaintiff Rementer and Rafael Toribio parked at the postal depot and exchanged information, Pierre Hall, Rafael Toribio's supervisor, came out, introduced himself to Plaintiff Rementer, asked Plaintiff Rementer if he was okay, and told Plaintiff Rementer he was going to have to get some information. 25. Plaintiff Rementer testified that he called the police while Plaintiff was at the post office:
Q. All right, did anyone-did you call either 911 or law enforcement? A. Yes, I did.26. On cross-examination, Plaintiff Rementer testified that his neck was hurting very lightly when Plaintiff Rementer got to the postal depot, and it started getting stronger and stronger.
Q. From where did you do that?
A. From the parking of their depot area.
Q. And why did you do that?
A. Because I started to feel stiffness in my neck and I'm like, something is not going right here, and because I saw scratches on the bumper, I was going to have to have the police report to get my car fixed.
Q. And how did you know that?
A. From being in law enforcement.
Plaintiff Rementer further testified:27. At trial, Plaintiff Rementer testified that he told Pierre Hall that his neck was hurting towards the end of Plaintiff's last conversation with Pierre Hall, about five minutes before Plaintiff Rementer left. 28. At trial, on cross-examination, Plaintiff Rementer testified:
Q. You went to the postal depot, you were talking to Mr. Hall, and he asked you if you were okay?
A. I believe he did, yes.
Q. Did you tell him your neck hurt?
A. No.
Q. Why not?
A. I just didn't say it to him.
Q. You didn't make any inquiry of Mr. Hall or Mr. Toribio to have you get assistance for any medical attention at that time?
A. No.
Q. You're waiting for the police, right?
A. Yes.
Q. But you said earlier, didn't you, that one of the reasons you wanted
the police to come was because, not only had you been tapped, but your neck was hurting, you wanted to file a police report for that reason, right?29. At trial, Plaintiff Rementer testified that he telephoned his employer twice while Plaintiff Rementer was at the postal depot after the accident. Plaintiff Rementer testified that, in first call, Plaintiff Rementer told his employer he would be late for work, and in the second call, Plaintiff Rementer told his employer he would not be in to work that day. 30. The Absence Form which reflects Plaintiff Rementer's phone call to his employer states:
A. For the first part of that question, yes, not the second.
Q. Just the tap?
A. Yeah.
Q. You weren't concerned about an injury?
A. At the particular moment, no.
Q. Why not?
A. Because it didn't bother me as much as it did the next morning.
Q. You weren't concerned then at that point in time that you had suffered an injury of any kind?
A. At that particular moment, I thought it was maybe a mild case of whiplash, but that's about it.
Reason for Absence:
4. Transportation problems
10. Involved in a accident in personal car.
| Notice Received: | Phone |
| From: | Employee |
| Comments: | No injuries |
| 16:32 p.m. | J. Williams |
(Def. Exh. 17, Mears 5).31. The subject accident happened at 4:15 p.m., at the end of Rafael Toribio's work day. At trial, Rafael Toribio testified that he went home that evening and wrote a handwritten statement of the accident on January 29, 2013:
I was traveling west on Gore St. approaching the Gore St. - O.B.T. intersection. A silver vehicle pulled out of 7-11 in front of me; then the traffic lights in the intersection turne (sic) red. I thought I had enough room to stop, trying not to make contact. When the front of my vehicle tapped his rear end, he got out of the car and snapped at me "What is wrong with you, didn't you see me. I asked him if he was o.k. He said yes, I was fin[d]. I did not see any damage to either vehicle.
s/ Rafael A. Toribio
32. At trial, Pierre Hall testified that he asked both Rafael Toribio and Plaintiff Rementer to write a statement of the accident. Rafael Toribio wrote a statement of the accident, but Plaintiff Rementer did not do so. 33. At trial, Pierre Hall testified that during the hour that Plaintiff Rementer, Rafael Toribio and Pierre Hall were waiting for the police to arrive at the post office, Pierre Hall offered medical care more than once, and offered transportation for medical care. Pierre Hall further testified that Plaintiff Rementer declined his offers to provide medical attention and transportation for medical care, and, from Pierre Hall's observation, appeared fine. 34. At trial, Pierre Hall testified that neither Plaintiff Rementer nor Rafael Toribio wanted to file an accident report; there were no injuries and no damages to either vehicle. 35. At trial, Plaintiff Rementer testified that the police arrived as Plaintiff Rementer was on his way out of the postal depot. On cross-examination, Plaintiff Rementer testified:
We both agreed to not file a police report and there was no damage to either vehicle.
(Def. Exh. 29).
Q. So you're actually on your way out of the depot, the postal facility, you're exiting the facility when the police show up?
A. I believe so, yes.36. At trial, Pierre Hall testified that, when the police arrived, he heard Plaintiff Rementer tell the police that he was fine, and saw Plaintiff Rementer wave the police off. 37. Plaintiff Rementer later filed an accident report that he filled out on his home computer. The accident report indicates no improper driving action for Plaintiff Rementer and Rafael Toribio. 38. On February 20, 2013, Plaintiff Rementer obtained an estimate for repair to his vehicle in the amount of $300.49, which included estimated charges for paint and labor. (Def. Exh. 7). D. Post-Accident Treatment 39. Plaintiff Rementer sought treatment from Adrian Williams, D.C., Preferred Family Chiropractic, on January 30, 2013. Dr. Williams' report for that date notes Plaintiff Rementer's chief complaints were headaches, and neck/upper back pain and tightness. (Def. Exh. 21, Preferred 72-75). In "Past Medical History," the report states: "Mr. Rementer's past history is non-contributory to his present symptoms." Dr. Williams advised Plaintiff Rementer not to work due to medical necessity from January 30, 2013 through February 2, 2013, and to return to work on February 3, 2013. 40. Plaintiff Rementer filled out an intake form at his appointment with Dr. Williams. The "During Impact Information" includes a section entitled "Body Impact (indicate any parts of your body that were struck during the impact)." Plaintiff Rementer checked that Plaintiff's head was struck during the impact. (Def. Exh. 20, Preferred 12). 41. In the "After the Accident" section of the intake form, Plaintiff Rementer checked that Plaintiff Rementer felt "dizzy/dazed" and a "headache." Plaintiff Rementer did not check the boxes for "upset" or "nervous." (Def. Exh. 20, Preferred 12). 42. On cross-examination Plaintiff Rementer testified that he returned to regular duty at Mears three days after the accident. 43. Plaintiff Rementer continued treatment with Adrian Williams, D.C. Dr. Williams scheduled an MRI of the cervical spine on February 27, 2013 at Clermont Radiology. The report of the MRI of the cervical spine states, in part:
Q. Again, you say you believe so, but I'm asking what it is you remember?
A. I'm trying to remember exactly the way this went down, I think when we were just about finishing out conversation, I believe he pulled up to the gate, and he was looking, he was looking. And I had said to Pierre, I believe something like, I'll tell him we've exchanged information, it's all taken care of. He said okay, and that's when I pulled around, the gate opened, and I told him.
Q. Okay, you didn't want to file a police report at that time; at that point in time, you apparently changed your mind, and you don't want to file a police report, right?
A. I don't understand.
Q. The reason you said you went over to the depot was to wait for the police to file a police report; now it's an hour later, and you're leaving and you apparently-have you changed your mind about filing a police report?
A. No.
Q. Then why didn't you wait and talk to the police?
A. Because, like I said, you know, my neck was starting to bother me and I wanted to go home, and I knew I could do it at home on the computer on my own.
Q. Your neck is starting to bother you more, is that why you left?
A. It's gradually starting to bother me.
Q. So your neck is starting to bother you more, the police show up to file an official report, but you waved them off so you can go home and lay down for the injury that you suffered in this accident, is that fair?
A. Yeah.
"At C2-C3, there is a left-sided foraminal herniation of the disc which results in anterior impression on the left side of the thecal sac and moderate stenosis of the left neural foramen. There is no evidence for canal stenosis or right foraminal stenosis.
At C3-C4 there is disc bulging which causes an anterior impression on the thecal sac. No canal stenosis or foraminal stenosis is identified.
At C4-C5, there is no evidence for disc herniation, canal stenosis, or neural foraminal stenosis.
At C5-C6, there is disc bulging which causes an anterior impression on the thecal sac. No canal stenosis or foraminal stenosis is identified...." (Def. Exh. 21, Preferred 69 - 71).44. On April 9, 2013, Dr. Williams referred Plaintiff Rementer for an orthopedic evaluation with Dr. Gary Gallo, Premier Orthopedic, which was scheduled on April 17, 2013. (Def. Exh. 21, Preferred 66). 45. Dr. Gary Gallo, Premier Orthopedic, evaluated Plaintiff Rementer on April 17, 2013 for "severe occipital headaches, neck pain radiating to the occiput, greater on the right graded 5-9/10 and dull to sharp in nature." (Def. Exh. 22, Premier Ortho. 05 -18). Dr. Gallo reviewed the MRI of the cervical spine performed on February 27, 2013, and reviewed an MRI of the lumbar spine that was performed on March 29, 2013 (unrelated to the 1/29/2013 auto accident.) Dr. Gallo imposed a reduced work restriction to 7 hours per day, and advised Plaintiff Rementer to seek a consultation with a pain management physician, Dr. Norbert Ming. 46. Dr. Norbert Ming evaluated Plaintiff Rementer on April 19, 2013 for neck pain and headaches. (Def. Exh. 22, Premier Ortho. 03-04). 47. On May 1, 2013, Dr. Robert Masson, Neurospine Institute, evaluated Plaintiff Rementer for neck pain. Dr. Masson had reports from Clermont Radiology, A1 Imaging of Ocoee, Preferred Family Chiropractic, Premier Orthopedic of Orlando. (Def. Exh. 19, Neurospine 1-62).
Dr. Masson referred Plaintiff Rementer to Clermont Radiology on for a CT imaging of the cervical spine to be done on May 13, 2013 for comparison with the prior MRI of 2/23/2013. (Def. Exh. 20, Nucci 160). The findings and impression were unchanged. 48. On May 9, 2013, Paul Lancaster, D.C., performed an Independent Medical Exam on behalf of GEICO, Plaintiff Rementer's PIP carrier. Dr. Lancaster performed a physical examination of Plaintiff Rementer. Dr. Lancaster reviewed the medical billing and records from Preferred Family Chiropractic dated 1/30/2013 through 3/15/2013, and medical billing and MRI of the cervical spine report from Clermont Radiology dated 2/27/2013.
Dr. Lancaster's conclusion states:
"Based on my examination of the claimant, my review of the submitted records, my clinical experience, the mechanism of injury and any applicable research, it is my opinion that no further treatment, massage
therapy, or diagnostic testing is reasonable, related, or medically necessary to the motor vehicle accident of 01-29-13. After 14 weeks of conservative care, the claimant has reached an end result to treatment within my area of specialty for the injuries sustained in the 01-29-13 motor vehicle accident. the claimant can return to work full time with no restrictions for the motor vehicle accident of 01-29-13. The claimant is currently not working due to a low back strain/sprain work comp injury. The claimant can return to activities of daily living with no restrictions. The claimant's pain with a pain scale of 10 being the highest and 0 being the lowest, initially was a 4, then three weeks later a 6-7 and is currently now a 1-2."
(Def. Exh. 14, Examworks 004). 49, Dr. Williams rendered a Final Report on May 17, 2013. (Def. Exh. 21, Preferred 52 - 56). After that time, Plaintiff Rementer sought treatment from Dr. Williams as needed.
Dr. Williams' report includes the following, in part:
"COMMENTS50. Plaintiff Rementer returned to Premier Orthopedic on July 18, 2013; James Dolan, M.D. examined Plaintiff Rementer. The report states, in part:
Based upon the patient's history, examination, evaluation, and clinical findings, it can be stated in all probability that the patient's symptomatology can be directly attributed to the afore mentioned trauma and that all therapies and procedures were deemed medically necessary......
Based on examination evaluation and diagnostic imaging, it is my professional opinion that this patient has an impairment of 7 Percent Whole Person using the Guides to Evaluation of Permanent Impairment, sixth edition, American Medical Association....
(Def. Exh. 21, Preferred 56).
Decision Making/Plan
1. I want him to continue with his work restrictions. By his report, he feel that he could work up to 4 hours
per day potentially but has not been offered that option at work.
(Def. Exh. 22, Premier Ortho. 02). 51. Robert C. Nucci, M.D., Nucci Medical Clinic, examined Plaintiff Rementer on March 4, 2014, for neck pain. Dr. Nucci's report states, in part:
"Cervical and upper extremity neurosensory and orthopedic exams were performed. The patient's medical history, past surgical history, review of systems, social history, family history, medications and allergies were reviewed......52. Plaintiff Rementer returned to see Dr. Nucci on April 4, 2014, looking for alternatives to treat his neck pain other than injections, and returned again on April 17, 2014, at which time Dr. Nucci stated that Plaintiff Rementer was a candidate for cervical facet injections. (Def. Exh. 20, Nucci 26, 25). 53. On April 24, 2014, Dr. Dario A. Grisales, Nucci Medical Clinic, evaluated Plaintiff Rementer for his complaints of neck pain and headaches. Dr. Grisales examined Plaintiff Rementer.
PHYSICAL EXAMINATION shows tenderness in the mid to lower cervical spine with cervical spasm and decreased range of motion of the cervical spine.
Imaging: x-rays of the cervical spine reveal straightening of the cervical lordosis and mild disk narrowing at C4/5. An MRI of the cervical spine from 2/27/13 is not available for review but notes on reports a disk herniation at C2/3 and disk bulging at C3/4 and C5/6.
DIAGNOSIS: Cervical strain with cervical facet, particularly in the mid to lower cervical spine, with limitation in range of motion of the neck symptomatic from the accident of 01/29/13 and a permanent injury with an underlying disk herniation at C2/3 not likely contributing significantly to the problem.
.....The patient is a candidate for cervical facet injections at C4/5 and C6/7 to decrease his underlying facet pain and allow him to do his home exercises better and he will be scheduled for this in the near future....
(Def. Exh. 20, Nucci 27).
In the report, Dr. Grisales states, in part:
IMAGING STUDIES: I reviewed the MRI of the cervical spine dated February 27, 2013. The patient has spondylitic ridges at C2/3, more pronounced toward the left. I disagree about the disk herniation. In my opinion, it looks more like a spondylitic ridge with disk complex, which is not probably related to the accident. There is also a C5/6 disk bulge associated somewhat to a spondylitic ridge. The patient does not have symptoms correlated to a C5/6 lesion.54. Dr. Grisales discussed the risks and benefits of cervical facet joint injections, and discussed radiofrequency lesioning as a procedure that will provide longer-lasting relief with Plaintiff Rementer. (Def. Exh. 20, Nucci 24). 55. Dr. Grisales performed bilateral cervical C2-3, C3-4, C5-6 facet joint injections at Citrus Park Surgery Center on May 16, 2014. (Plaintiff's Exh. 9, p. 46). 56. Plaintiff Rementer returned to see Dr. Grisales after bilateral cervical facet joint injections on June 6, 2014. (Def. Exh. 20, Nucci 19). Dr. Grisales confirmed that Plaintiff Rementer had significant rotator cuff syndrome of the left shoulder. (Def. Exh. 20, Nucci 19 - 20). 57. Dr. Grisales performed bilateral cervical C2-3, C3-4, C4-5 facet joint injections on July 11, 2014 at Citrus Park Surgery Center.
......
DISCUSSION: The patient sustained an acceleration/deceleration injury and the symptomatology and clinical examination presented indicates that an injury occurred after the motor vehicle sustained above. The patient will have improvement and flare-up periodically.
(Def. Exh. 20, Nucci 23).
(Plaintiff's Exh. 9, p. 44). 58. Plaintiff Rementer returned to see Dr. Grisales on July 18, 2014. At that point Dr. Grisales wanted Plaintiff Rementer to see Dr. Bulmer for evaluation of left shoulder pain. (Def. Exh. 20, Nucci 18, 62). 59. Dr. Bulmer examined Plaintiff Rementer on July 22, 2014. Dr. Bulmer recommended an MRI of Plaintiff's shoulder. (Def. Exh. 20, Nucci 16, 84).
Dr. Bulmer's report states, in part:
HISTORY: Mr. Rementer is a 43-year-old left hand dominant male who was referred for left shoulder pain. He is under the care of Dr. Nucci for neck pain and will require injection therapy. He described pain in the left neck that radiates into the trapezius aggravated with abduction to above shoulder level. He denies previous shoulder injury. No motor or sensory deficits reported.60. On July 23, 2014, an MRI of Plaintiff Rementer's left shoulder was performed at Rose Radiology, The Imaging Center at Boot Ranch.
(Def. Exh. 20, Nucci 16).
The MRI Report states in part:
FINDINGS: There is abnormal thickening and increased signal noted within the distal supraspinatous and infraspinatous consistent with tendinosis/tendinitis. There is no evidence of rotator cuff tear.
The AC joint appears unremarkable. There is no evidence of labral tear.
The long head of the biceps tendon and the subscapularis are intact. There is fluid in the long head of the biceps tendon sheath consistent with tenosynovitis.
There is no evidence of marrow edema.
There is subacromial fluid and joint effusion.
61. Plaintiff Rementer returned to see Dr. Bulmer on July 29, 2014. Dr. Bulmer prescribed an exercise program for strengthening, joint mobilization, manual therapy, and modalities and procedures as needed.
IMPRESSION:
1. Findings consistent with rotator cuff tendinosis/tendinitis
2. Subacromial bursitis.
3. Tenosynovitis long head of the biceps tendon sheath.
4. Joint effusion.
(Plaintiff's Exh. 21).
(Def. Exh. 20, Nucci 113, 60). 62. On August 12, 2014, Douglas Price, D.C., Florida Pain, Trauma & Injury Clinic, 483 Mandalay Ave., #209, Clearwater, FL, evaluated and treated Plaintiff Rementer for neck pain and left shoulder pain.
Plaintiff Rementer returned for treatment of neck pain, mid back pain, low back pain and left shoulder pain on August 13, 2014.
Plaintiff Rementer returned for treatment of neck pain and left shoulder pain on August 14, 2014.
Plaintiff Rementer returned for treatment of neck pain, mid back pain, low back pain, left shoulder pain and headache on August 18, 2014.
Plaintiff Rementer returned for treatment of neck pain and left shoulder pain on August 21, 2014, and August 26, 2014.
Plaintiff Rementer returned for treatment of neck pain, mid back pain, and low back pain on August 28, 2014.
Plaintiff Rementer returned for treatment of neck pain, mid back pain, low back pain and left shoulder pain on September 2, 2014, and September 4, 2014.
(Plaintiff's Exh. 25). 63. On September 5, 2014, Dr. Grisales performed right cervical C2-3, C3-4 and C4-5 facet joint radiofrequency lesioning on Plaintiff Rementer at Citrus Park Surgery Center. (Plaintiff's Exh. 9,). 64. On September 9, 2014, Plaintiff Rementer returned to Douglas Price, D.C. for treatment of mid back pain and left shoulder pain.
Plaintiff Rementer returned for treatment of neck pain and left shoulder pain on September 11, 2014.
Plaintiff Rementer returned for treatment of neck pain, mid back pain, and left shoulder pain on September 17, 2014.
Plaintiff Rementer returned for treatment of neck pain, mid back pain, dizziness, left shoulder pain, fatigue, sleeping problems and headache on September 24, 2014.
Plaintiff Rementer returned for treatment of neck pain, low back pain, and left shoulder pain on October 1, 2014 and October 8, 2014.
Plaintiff Rementer returned for treatment of neck pain, mid back pain, low back pain, and left shoulder pain on October 15, 2014.
Plaintiff Rementer returned for treatment of neck pain, mid back pain and low back pain on October 16, 2014.
Plaintiff Rementer returned for treatment of neck pain, mid back pain, low back pain and left shoulder pain on October 20, 2014.
(Plaintiff's Exhibit 25). 65. On October 24, 2014, Dr. Grisales performed left cervical C2-3, C3-4, and C4-5 facet joint nerve radiofrequency lesioning on Plaintiff Rementer at Citrus Park Surgery Center. (Plaintiff's Exh. 9). 66. On November 3, 2014, Plaintiff Rementer returned to Douglas Price, D.C. for treatment of neck pain, left shoulder pain and headache.
On November 11, 2014, Plaintiff Rementer returned for treatment of neck pain, mid back pain, low back pain and left shoulder pain.
On December 1, 2014, Plaintiff Rementer returned for treatment of neck pain, mid back pain and left shoulder pain.
On December 8, 2014, Plaintiff Rementer returned for treatment of neck pain, mid back pain, left shoulder pain, fatigue, sleeping problems and headaches.
(Plaintiff's Exh. 25). 67. On December 12, 2014, Dr. Grisales performed right cervical C2-3, C3-4 and C4-5 facet joint nerve radiofrequency lesioning on Plaintiff Rementer at Citrus Park Surgery Center. (Plaintiff's Exh. 9). 68. On December 22, 2014, Plaintiff Rementer returned to Douglas Price, D.C. for treatment of neck pain, mid back pain, left shoulder pain, sleeping problems and headaches.
On January 6, 2015, Plaintiff Rementer returned for treatment of neck pain, mid back pain, low back pain, left shoulder pain, and headache.
Dr. Price's report for January 6, 2015 states, in part:
"In my opinion within reasonable medical probability, Albert Rementer will have an incomplete recovery from the injuries above that were caused by or aggravated by the motor vehicle accident on January 29, 2013. He has been receiving chiropractic care and physical therapy, and this has contributed to some improvement in his thoracic, cervical and lumbar pain. However, the types of injuries that he/she has sustained will be subject to episodes of exacerbation caused by various activities of daily living. I also believe that the weaknesses that he currently demonstrates will predispose these key areas to additional problems from aggravation or trauma, which would not have otherwise bothered him prior to this accident. As a result of these weaknesses he will require continuing or supportive chiropractic care and therapy in the future."
......
PHYSICAL RESTRICTIONS: Albert Rementer is permanently restricted from lifting greater than 25 pounds from a bent position and 20-25 pounds repetitively. He should refrain from repetitive reaching overhead, pulling, pushing and jarring activities. As a result of these injuries he will be limited as far as recreation and daily activities. Furthermore, his injuries also may affect future employment opportunities.69. On March 13, 2015, Dr. Grisales performed left cervical C2-3, C3-4 and C4-5 facet joint nerve radiofrequency lesioning on Plaintiff Rementer at Citrus Park Surgery Center.
(Plaintiff's Exhibit 25).
On March 27, 2015, Dr. Grisales performed right cervical C2-3, C3-4 and C4-5 facet joint nerve radiofrequency lesioning on Plaintiff Rementer at Citrus Park Surgery Center.
On June 19, 2015, Dr. Grisales performed right cervical C2-3, C3-4 and C4-5 facet joint nerve radiofrequency lesioning on Plaintiff Rementer at Citrus Park Surgery Center.
On July 10, 2015, Dr. Grisales performed left cervical C2-3, C3-4 and C4-5 joint nerve radiofrequency lesioning on Plaintiff Rementer at Citrus Park Surgery Center.
(Plaintiff's Exh. 9) E. Disclosure of Prior Accidents 70. As to the motor vehicle accident of 10/29/1997, Plaintiff Rementer disclosed this accident as follows:
| Adrian Williams, D.C. | Def. Exh. 21, Preferred 13 |
| Gary A. Gallo, M.D. | Def. Exh. 22, Premier Ortho. 06 |
| Robert L. Masson, M.D. | Def. Exh. 19, Neurospine 29 |
| Paul Lancaster, D.C. | Def. Exh. 14, Examworks 002 |
| Robert Nucci, M.D. | Def. Exh. 20, Nucci 104 |
| Douglas Price, D.C. | Plaintiff's Exh. 25, p. 5 |
| Gary A. Gallo, M.D. | Def. Exh. 22, Premier Ortho. 10(Carpal tunnel surgery) |
| Robert L. Masson, M.D. | Def. Exh. 19, Neurospine 29(Carpal tunnel release) |
| Paul Lancaster, D.C. | Def. Exh. 14, Examworks 002(Carpal tunnel surgery; injury to leftwrist, left elbow, left shoulder that wasa permanent type injury) |
| Robert Nucci, M.D. | Def. Ex. 14, Nucci 109, 110(Carpal tunnel surgery;1993 Carpal Tunnel Release) |
| Douglas Price, D.C. | Plaintiff's Exh. 25, p. 5Evaluation August 12, 2014(Left wrist injury in 2003; had asurgery on left wrist) |
| Douglas Price, D.C. | Plaintiff's Exh. 25, p. 5Evaluation August 12, 2014Surgical history - 7 yearsago in 2007 |
| Paul Lancaster, D.C. | Def. Exh. 14, Examworks 002-003workers' compensation injury low back fouryears ago receiving treatment and thenreleased |
Employee's Description of Accident:76. On March 19, 2013, Plaintiff Rementer saw Dr. Phillips at CentraCare. (Def. Exh. 18, Mears WC 124). 77. Plaintiff Rementer was released to return to work, with restrictions, on March 19, 2013. (Def. Exh. 18, Mears WC 113). 78. On April 5, 2013, Dr. Michael J. Broom, Florida Spine Care Center, evaluated Plaintiff Rementer. Dr. Broom's report states:
WORKER WAS LOADING LUGGAGE INTO BUS WHEN HE FELT PAIN IN HIS LOWER BACK
Injury/Illness that Occurred:
Sprain - Joint Trauma/Injured Ligaments
Part of Body Affected:
Lower Back Area - Lumbar and Lumbo Sacral
(Def. Exh. 18, Mears WC 119).
Chief Complaint: Low Back Both Legs
History of Present Illness:
The patient comes in for initial evaluation. He is employed as a bus driver and has been on the job the last 11 months. He indicates he was injured March 18, 2013 when he was loading a bus and began feeling pain in his low back. He indicates he was sent to a walk-in clinic, given medications that he did not find to be helpful and ultimately sent for an MRI and referred here. The patient is also currently treating for a motor vehicle accident which he had January 19, 2013 however the patient states his only problem in the motor vehicle accident was his neck.
Past Medical Treatment: He is taking no medications at
present. He does report that he really can't do anti-inflammatories as he only has one kidney.
Current symptomatology: He's getting low back pain with numbness and tingling into both legs right equal to left. The pain interferes with his sleep. The pain is constant. The pain is worse at different times through the day including at night in bed and as the day progresses. The patient does report that bending, lifting, sitting for a while, straining at school (sic), getting in and out of a chair, and lying in bed all worsens the discomfort. If he walks half a mile he gets numbness in his legs, pain in his back and unsteady feeling as if his legs would give out. He does feel that heat, cold and ice are helpful. Compared to a year ago his weight remained the same. The patient does not smoke. He rates the pain at best a 4/10. He rates the pain at its worst 7/10.
......
Previous Back/Neck Problems: The patient does report on January 29, 2013 he had a minor car accident and was diagnosed with disc problems at C2-3 and has been treating with a chiropractor. He denies any back injury during that event. No medical records are available with respect to this.
Work Status: The patient has been out of work since the date of the accident.
......
Diagnosis 847.2 SPRAIN/STRAIN LUMBAR REGION
Treatment/Plan: Soft tissue injury of the low back with possible symptoms of nerve root irritation but no neuro compressive pathology. I did recommend a course of active physical therapy with instruction in home exercise. The patient was given a referral for this. We'll see him back in 3 weeks to monitor his progress.
Limitations: Avoid repetitive bending, twisting, squatting, climbing, avoid lifting over 20 pounds.
(Def. Exh. 18, Mears WC 217, 218).79. Plaintiff Rementer had physical therapy at Four Corners Health & Rehabilitation in April and May, 2013.
Plaintiff Rementer returned to Dr. Broom on April 25, 2013 and on May 29, 2013. Dr. Broom suggested epidural steroid injection; Plaintiff Rementer wanted to check with his family, treating kidney doctor before proceeding with an epidural steroid injection.
(Def. Exh. 18, Mears WC 231, 214-215, 212-213). 80. On June 6, 2013, Network Synergy Group provided the "Work Ready Form" to Dr. Michael Broom, which includes a statement of Plaintiff's functional abilities and restrictions. (Def. Exh. 18, Mears WC 204). 81. On July 3, 2013, Plaintiff Rementer returned to Dr. Broom. Dr. Broom's report states in part:
He reports that his family doctor has reported that he is unable to take an injections and does not want him on any medications due to the fact that he has only one kidney.82. All indemnity benefits for the accident of March 18, 2013 were suspended on August 4, 2013. (Def. Exh. 18, Mears WC 107). 83. On August 30, 2013, Plaintiff Rementer executed a Stipulation in Support of Joint Petition for Order Approving a Lump-Sum Settlement of Plaintiff's worker's compensation claim. The Stipulation includes an award of $5,000 for past and future compensation benefits and $5,000 for future medical expenses. (Def. Exh. 18, Mears WC 36-51). In conjunction with the settlement, Plaintiff Rementer executed a General Release which reflects Plaintiff Rementer voluntarily chose to resign his employment and Plaintiff's level of disability prohibits Plaintiff from performing the essential functions required by the work place at Mears Destination Services, Inc., even with reasonable accommodations. (Def. Exh. 18, Mears WC 6-8). 84. On September 30, 2013, W. James Condry, Judge of Industrial Claims, approved the Stipulation in Support of Joint Petition for settlement. (Def. Exh. 18, Mears WC9-10). G. Trial Testimony 85. Dr. Adrian Williams testified on direct examination that he took a history from Plaintiff Rementer, in which Mr. Rementer stated that he was wearing a seat belt, that he was aware of the impending vehicle and that he braced for impact prior to collision, and reported that his upper body was jarred forward and backwards, striking the back of his head against the headrest. Dr. Williams further testified that he develops a treatment plan based on information from the patient as it relates to the mechanism of injury. Dr. Williams testified the treatment plan is not based solely on the subjective report; Dr. Williams' method is to perform an examination, conduct testing, and incorporate the objective findings after testing into the treatment plan. 86. Dr. Adrian Williams testified on direct examination that he referred Plaintiff Rementer for an MRI on February 19, 2013. Dr. Williams further testified that he changed the treatment rendered to Plaintiff Rementer after receiving the MRI report, and referred Plaintiff Rementer for evaluation by an orthopedic doctor. Dr. Williams further testified that the MRI report correlated to the symptoms Plaintiff Rementer reported. 87. Dr. Williams testified on cross-examination at trial that Plaintiff Rementer's prior accidents of 2003, 2009 and 2011 were not disclosed to him. 88. Dr. Williams testified on cross-examination at trial that Plaintiff Rementer told him that his neck and upper body were "jarred violently upon impact" and the words "jarred violently upon impact" were Plaintiff Rementer's words. 89. Robert Nucci, M.D. testified at trial. Dr. Nucci testified that he takes a history from his patients, including information about prior accidents, and subjective complaints. Dr. Nucci testified that the history of the patient is arguably the most important piece of information. Dr. Nucci further testified that he takes what his patients say, examines the patient, looks at diagnostic tests and whatever else he has, to come to a conclusion about what Dr. Nucci can do to help the patient. 90. Dr. Nucci further testified that he routinely communicates with other doctors in his practice, including Dr. Grisales and Dr. Bulmer, as to the treatment of particular patients. In conjunction with his treatment of Plaintiff Rementer, Dr. Nucci testified on cross-examination that Dr. Grisales wrote: "[H]e reports he didn't have any neck pain or headaches until he was the restrained driver of his vehicle when a UPS truck slammed into the back of his vehicle." 91. When asked where Plaintiff Rementer's shoulder problem originated, Dr. Nucci testified that he would need to refer to Dr. Bulmer's notes; Dr. Bulmer attributed it to the accident of January 29, 2013. 92. Dr. Nucci testified that, at the time that Dr. Nucci saw Plaintiff Rementer, his understanding was that Plaintiff Rementer was rear-ended when Plaintiff Rementer was at a complete stop. Dr. Nucci further testified that he learned recently that the accident was a very low impact accident, but he did not know if that was true. 93. Dr. Nucci testified that for a patient with neck pain, Dr. Nucci would consider information about a prior shoulder injury to be significant. Dr. Nucci further testified that it would be important to know of there is a prior shoulder injury, particularly once the diagnosis of a potential shoulder problem is made. As to Plaintiff Rementer, Dr. Nucci testified that his understanding was that initially Dr. Grisales did not feel Plaintiff's shoulder problem was significant, but later, on June 6, 2014, Dr. Grisales did determine there was inflammation in Plaintiff's rotator cuff. 94. In the medical records, Dr. Grisales disagreed with the reading of Plaintiff Rementer's MRI of February 27, 2013 that showed the presence of disc herniation at C2-3, stating: "I disagree as to disk herniation. In my opinion it looks more like a spondylitic ridge with disk complex, which is not probably related to the accident." Dr. Nucci testified at trial that he would agree with Dr. Grisales. Dr. Nucci testified:
Dr. Broom determined that Plaintiff Rementer reached maximum medical improvement and found Plaintiff Rementer had a permanent partial impairment of 3%. Dr. Broom specified the following limitations:
"Avoid frequent bending, twisting, avoid lifting over 30 pounds." (Def. Exh. 18. Mears WC 183-184, 188).
I don't think the herniation, or spondylitic ridge is relevant; it's not related to the accident or essentially not causing any pain here; either it's healed or completely unrelated; it's not contributing to the patient's problem in my opinion.95. Paul Lancaster, D.C., testified at trial. Dr. Lancaster performed an independent medical examination on May 9, 2013. Dr. Lancaster reviewed the medical billing and records of Preferred Family Chiropractic, 1/30/13 through 3/15/13 and the medical billing and MRI of the cervical spine report from Clermont Radiology dated 2/27/13. Dr. Lancaster testified that, at that time, Plaintiff Rementer's chief complaints were upper neck pain and headaches that come and go; Plaintiff Rementer did not complain about left shoulder pain.