ORDER
ELIZABETH A. KOVACHEVICH, District Judge.
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;
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.
(Dkt. 15, Joint Pretrial Statement, p. 13).
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.
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).
B. Judicial Notice
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 Plaintiffs 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 accident whiplash injury to neck
at work
1/7/2003 Fall while at work pain, numbness and tingling
in 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
5. As to the motor vehicle accident of 10/29/1997, Plaintiff Rementer reported that he was treated after the whiplash injury and after treatment the injury resolved.
6. As to the worker's compensation accident of 1/7/2003, Plaintiff Rementer had an MRI of the left shoulder on 1/9/2003; the report of the MRI states a "distal tear of the supraspinatous tendon." Plaintiff Rementer had an MRI of the cervical spine on 1/31/2003; the report of the MRI states "age related changes that caused narrowing of the foramina at multiple levels; no evidence of cord compression." Plaintiff Rementer had an EMG/NCS on 3/10/2003, which states "consistent with acute carpal tunnel syndrome." As of 4/3/2003, the records state "continued tenderness at left shoulder and questionable atrophy of left infraspinatous with a full range of shoulder motion documented. The left acromial space was injected. [Plaintiff Rementer] was able to work with modifications." "The shoulder symptoms resolved following injections. The left carpal tunnel symptoms got worse." In July, 2003, a left carpal tunnel release surgery was performed. On November 4, 2003, a revision of the left carpal tunnel release and a left flexor tenolysis was performed; after surgery, Plaintiff Rementer had physical therapy. The records state that Plaintiff Rementer reached maximum medical improvement on March 4, 2004. On March 24, 2004, the Medical Director, City of Philadelphia, Wilhelmina C. Korevaar, M.D., stated "It is my opinion to a reasonable degree of medical certainty, based on the available documentation, that Albert Rementer is permanently and partially disabled from his position as a Warrant Officer with Courts for City of Philadelphia, solely due to work injury. Officers are required to be capable of discharging firearms with both hands. There is no evidence that Mr. Rementer had any previous history of carpal tunnel syndrome or left shoulder pathology."
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, —, 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:
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.
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 Plaintiffs injury; Plaintiff Rementer further testified that Plaintiffs 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.
(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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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?
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.
16. At trial, on redirect examination, Rafael Toribio testified:
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 Plaintiffs 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?
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.
22. Plaintiff Rementer testified as to how Plaintiff felt after the collision when Plaintiff got out of the car:
"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.
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.
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.
Plaintiff Rementer further 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.
27. At trial, Plaintiff Rementer testified that he told Pierre Hall that his neck was hurting towards the end of Plaintiffs last conversation with Pierre Hall, about five minutes before Plaintiff Rementer left.
28. At trial, on cross-examination, Plaintiff Rementer testified:
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?
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.
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:
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
We both agreed to not
file a police report and
there was no damage to
either vehicle.
(Def. Exh. 29).
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:
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.
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.
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 Plaintiffs 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:
"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:
"COMMENTS
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).
50. Plaintiff Rementer returned to Premier Orthopedic on July 18, 2013; James Dolan, M.D. examined Plaintiff Rementer. The report states, in part:
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.....
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).
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.
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.
.......
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).
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. (Plaintiffs 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. (Plaintiffs 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 Plaintiffs 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.
(Def. Exh. 20, Nucci 16).
60.On July 23, 2014, an MRI of Plaintiff Rementer's left shoulder was performed at Rose Radiology, The Imaging Center at Boot Ranch.
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.
IMPRESSION:
1. Findings consistent with rotator cuff tendinosis/tendinitis
2. Subacromial bursitis.
3. Tenosynovitis long head of the biceps tendon sheath.
4. Joint effusion.
(Plaintiffs Exh. 21).
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.
(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.
(Plaintiffs 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. (Plaintiffs 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.
(Plaintiff's Exhibit 25).
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.
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
71. As to the worker's compensation accident of 1/7/2003, Plaintiff Rementer disclosed this accident as follows:
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 left
wrist, left elbow, left shoulder that was
a permanent type injury)
Robert Nucci, M.D. Def. Ex. 14, Nucci 109,110
(Carpal tunnel surgery;
1993 Carpal Tunnel Release)
Douglas Price, D.C. Plaintiffs Exh. 25, p. 5
Evaluation August 12, 2014
(Left wrist injury in 2003; had a
surgery on left wrist)
72. As to the accident of 2/21/2007, Plaintiff Rementer disclosed the accident as follows:
Douglas Price, D.C. Plaintiffs Exh. 25, p. 5
Evaluation August 12, 2014
Surgical history — 7 years
ago in 2007
73. As to the worker's compensation 2010 accident, Plaintiff Rementer disclosed the accident as follows:
Paul Lancaster, D.C. Def. Exh. 14, Examworks 002-003
workers' compensation injury low back four
years ago receiving treatment and then
released
74. As to the accident of 9/17/2011, the water slide accident in which Plaintiff Rementer struck his head such that Plaintiff sustained an abrasion to his forehead, Plaintiff Rementer did not disclose the accident to his physicians.
F. Subsequent Accident on March 18, 2013
75. On March 18, 2013, Plaintiff Rementer injured his low back while at work. The First Report of Injury states:
Employee's Description of Accident:
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).
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:
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 Plaintiffs 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.
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).
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 Plaintiffs 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 Plaintiffs 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 Plaintiffs shoulder problem was significant, but later, on June 6, 2014, Dr. Grisales did determine there was inflammation in Plaintiffs 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:
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.
96. Dr. Lancaster testified that Plaintiff Rementer reported that following the accident on January 29, 2013, Plaintiff Rementer started experiencing neck stiffness and he was in shock after the accident.
97. Dr. Lancaster testified that Plaintiff Rementer disclosed a prior auto accident in Philadelphia in which Plaintiff Rementer injured his neck, requiring treatment; that Plaintiff Rementer disclosed that Plaintiff had a prior worker's compensation injury in 2003, with an injury to his left wrist, left elbow, and left shoulder that was a permanent-type injury. Dr. Lancaster further testified that Plaintiff Rementer disclosed Plaintiff was suffering from a worker compensation injury to his low back four years ago.
98. Dr. Lancaster testified that Plaintiff Rementer did not disclose a head injury suffered in 2011 and a shoulder injury suffered in 2007.
99. Dr. Lancaster testified that Plaintiff Rementer disclosed a subsequent injury, and Plaintiff Rementer stated that Plaintiff wasn't working due to the new low back injury.
100. Dr. Lancaster testified that he observed Plaintiff Rementer sitting, standing and turning from prone to supine with no complaints, that there was no restriction to Plaintiffs cervical range of motion, and that he noticed no spasms during his examination of Plaintiff's cervical spine and neck muscles.
101. When questioned on cross-examination about whether Plaintiff Rementer told Dr. Lancaster Plaintiff was initially in shock after the accident, Plaintiff Rementer testified:
Q. The question to you is did you tell Dr. Lancaster on that day that you were initially in shock after this accident?
A. When the accident happened, yes.
Q. So you were in shock?
A. Yes.
Q. So that statement to Dr. Lancaster is correct, you did make that statement you were in shock?
A. Yes.
Q. What do you mean by that, what kind of shock were you in, Mr. Rementer?
A. To the point where I was just like, you know, what just happened, you know what I mean. I can't explain it. It's-kind of, you know, it's like I was-like nervous a little bit, like, what just happened, I'm sitting here at a red light and this guy just came out of nowhere.
Q. Was it shock as a result of your body suffering an injury?
A. No, I think it was just my mental state.
Q. Is it surprise versus shock; you're not using shock in the sense of a medical term where your body is going into shock, having suffered some trauma?
A. No, absolutely not.
102. Plaintiff Rementer testified on cross examination that he was honest with his doctors when they asked him questions about his past history.
103. Plaintiff Rementer testified that he did not tell Dr. Williams that he was "jarred violently".
104. When questioned on cross-examination about Plaintiff Rementer's denial of any prior shoulder injuries, Plaintiff Rementer testified "It's not that I denied them; I told them I had it over ten years ago." Plaintiff Rementer further testified that what Dr. Bulmer wrote in his report was not correct. Plaintiff Rementer further testified that he told Dr. Bulmer about the second shoulder injury.
105. When questioned on redirect examination about the accident report Plaintiff Rementer filed, Plaintiff Rementer testified that he believed that there was improper driving action on the part of Rafael Toribio; Plaintiff Rementer testified that he put "1" on the report (indicating no improper driving action) because Plaintiff Rementer was in a lot of pain and not feeling well.
III. CONCLUSIONS OF LAW
A. Jurisdiction and Applicable Law
106. The parties stipulated that:
1. The Federal Rules of Civil Procedure and Evidence apply.
2. The Federal Tort Claims Act applies.
3. To the extent not in conflict with the Federal Tort Claims Act, the Florida common law applies.
107. The Court has jurisdiction pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671, et seq.
108. The substantive law of Florida determines the liability of Defendant United States of America under the Federal Tort Claims Act because the January 29, 2013 accident occurred in Orange County, Florida. McCorkle v. United States, 737 F.2d 957, 959 (11th Cir. 1984). Florida law requires a negligence plaintiff to prove "three elements: (1) a duty recognized by law requiring defendant to conform to a certain standard of conduct for the protection of others, including plaintiff; (2) defendant's failure to perform that duty; and (3) an injury or damage to plaintiff that was proximately caused by such failure." Worthington v. United States. 807 F.Supp. 1545,1565 (S.D. Ga. 1992)(applying Florida law), rev'd on other grounds, 21 F.3d 399 (11th Cir. 1994).
109. A plaintiff must show by a preponderance of the evidence that a negligent act was a legal cause of damage. Abrisch v. United States, 359 F.Supp.2d 1214, 1229-30 (M.D. Fla. 2004)("Negligence is a legal cause of damage if it directly and in natural and continuous sequence produces, or contributes substantially to producing, such damage, so it can reasonably be said that, except for the negligence, the loss, injury or damage would not have occurred. Negligence may be a legal cause of damage even though it operates in combination with the act of another, some natural cause, or some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such damage." id. (Internal citations omitted).).
110. Under Florida law, there is a rebuttable presumption of negligence that attaches to the rear driver in a rear-end motor vehicle collision case. See Eppler v. Tarmac America. Inc. 752 So.2d 592, 594 (Fla. 2000)(explaining origins of rear-end presumption). Unless this presumption is rebutted, the beneficiary of the presumption is entitled to judgment thereon as a matter of law. See Birae v. Charron, 107 So.3d 350 (Fla. 2012). The presumption that a rear driver's negligence is the sole cause of a rear-end automobile collision can be rebutted, and its legal effect dissipated by the production of evidence from which a jury could conclude that the front driver was negligent in the operation of his or her vehicle; the presumption of negligence on the part of a defendant driver who rear-ends a plaintiff driver is not a substantive rule of law that supersedes Florida's comparative negligence system. It is an evidentiary tool that is applicable where the evidence is insufficient to create a jury question on the relevant issues of fault. Id.
111. Under Florida law, where a set of facts is produced that "fairly and reasonably tends to show" that the presumption is misplaced or that the "real fact is not as presumed," the presumption is rebutted and all issues of disputed fact should be submitted to the jury to make a finding of fault without the aid of the presumption. See Eppler v. Tarmac America. Inc., 752 So.2d 592, 594, 595-96 (Fla. 2000). Where evidence is produced from which a jury could conclude that the front driver in a rear end collision was negligent and comparatively at fault in bringing about the collision, the presumption is rebutted, and issues of disputed fact regarding negligence and causation should be submitted to the jury. Where the presumption of rear-driver negligence is rebutted, the legal effect of the presumption is dissipated, and the presumption is reduced to the status of a permissible inference or reduction from which the jury may, but is not required to, find negligence on the part of the rear driver. See Guile v. Boaas, 174 So.2d 26 (Fla. 1965).
112. There are three general categories of affirmative explanations that may effectively rebut the presumption of negligence: 1) an abrupt and arbitrary stop in a place where it could not reasonably be expected or an unexpected change of lanes,...2) a mechanical failure, i.e. sudden brake failure, that causes the rear driver to collide with the lead driver,...3) the lead vehicle is illegally and, therefore, unexpectedly stopped....ln these instances, the purpose for the presumption is not served because the driver of the rear vehicle was a contributing cause of the collision or the driver of the rear vehicle was rendered incapable due to mechanical failure to prevent the collision and, therefore, is not negligent.
If the rear driver presents sufficient evidence to rebut the presumption, the case is submitted to the jury, without the aid of the presumption, "to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence." Alford v. Cool Cargo Carriers. Inc., 936 So.2d 646, 649-650 (Fla. 5th DCA 2006)(internal citations omitted).
113. Drivers on Florida's roadways owe a duty of reasonable care not only to those driving in front of them, but also to those who are following, and all other individuals within the foreseeable zone of danger. See Sec. 316.183(5), Fla. Stat. (2012).
114. Under Florida law, the Plaintiff in general bears the burden of proving causation. See, e.g., Reaves v. Armstrong World Industries. Inc., 569 So.2d 1307,1309 (Fla. 4th DCA 1990). The Plaintiff "must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the Defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough." id, at 1309 (quoting Gooding v. University Hospital. 445 So.2d 1015 (Fla. 1984). See also Hessen v. Jaguar Cars. Inc., 915 F.2d 641m 647 (11th Cir. 1990)(Florida has adopted a preponderance standard for causation in both negligence and strict liability actions; a mere possibility of causation is not enough.") Plaintiff must come forward with admissible evidence on the issue of medical causation in order to demonstrate that there is a material issue of fact that should preclude summary judgment. Clark v. Coats & Clark. Inc., 929 F.2d 604, 608 (11th Cir. 1991).
115. When a negligence claim is premised on aggravation of a pre-existing medical condition, damages are to be assessed against the negligent party for only that portion of the injury resulting from the aggravation of the pre-existing condition. Thomason v. Gordon, 782 So.2d 896 (Fla. 5th DCA 2001).
116. In the negligence context under Florida law, "lay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable." Jones v. Roval Carribean Cruises. Ltd., 2013 WL 8695361, at *6 (S.D. Fla. Apr. 4, 2013)(quoting Crest Prods, v. Louise, 593 So.2d 1075, 1077 (Fla. 1st DCA 1992)). Florida courts have held that a plaintiff's back pain and other soft tissue injuries are not "readily observable" medical conditions. Louise. 593 So.2d at 1077: see also Vero Beach Care Center v. Ricks, 476 So.2d 262, 264 n.1 (Fla. 1st DCA 1985)("Soft-tissue injuries, such as lower back difficulties, are not readily observable, and hence are not susceptible to evaluation by lay persons."); Scott v. United States, 127 F.Supp. 422, 424 (N.D. Fla. 1955)(stating that "it has been consistently held that whether there was a causal connection between an accident...[and a sustained injury]...is a question with respect to which only medical experts with training, skill, and experience could...express an intelligent opinion.").
117. Sec. 626.737(2), Florida Statutes, provides:
2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
.....
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
118. In a nonjury trial, the trial judge has a duty to resolve issues of fact as well as issues of law. The trial judge, as the finder of fact, "may accept [expert witness] opinion testimony, reject it, or give it the weight [the finder of fact] thinks it deserves, considering the knowledge, skill, experience, training or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case." The [finder of fact] is free to "accept or reject the testimony of a medical expert just as it may accept or reject that of any other expert." Shaw v. Puleo, 159 So.2d 641, 644 (Fla. 1964). Even though the facts testified to by [the medical expert] were not within the ordinary experience of the jury, the jury was still free to determine their credibility and to decide the weight to be ascribed to them in the face of conflicting lay evidence." 159 So.2d at 644.
119. The trial judge may reject unrebutted expert testimony, but must offer a reasonable explanation for doing so. Wiederhold v. Wiederhold, 696 So.2d 923 (Fla. 4th DCA 1997)(District Court of Appeal held that the trial court improperly rejected unrebutted testimony about necessity of accountant's services without reasonable explanation; the trial court cannot arbitrarily reject unrebutted expert testimony.)
120. Where expert medical opinions as to permanency of a plaintiffs injuries are premised on a plaintiffs self-report of no previous trauma and there is evidence from which the [finder of fact] could have concluded that the plaintiff did not accurately report [his] medical history to the medical expert, the [finder of fact] may reject that opinion testimony as flawed by the materially untruthful history given [to the doctors] by the claimant. See Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993).
In Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993), the Florida Supreme Court reviewed a decision of the Fourth District Court of Appeal which reversed a decision denying appellant's motion for new trial and held that the jury's verdict that appellant suffered no permanent injury was contrary to the weight of the evidence, which consisted of medical expert opinions. The Florida Supreme Court reversed the decision of the Fourth District Court of Appeal, and held that the jury could have reasonably concluded that the expert testimony was flawed after the jury heard contradictory statements from respondent and her regular physician.
B. Breach of the Duty of Care
The Court must determine whether the Defendant was negligent in causing this accident and whether Plaintiff Rementer was comparatively negligent.
121. After reviewing and considering the evidence, the Court finds that Plaintiff Rementer, who has the burden of proof, has proved by a preponderance of the evidence that Defendant United States of America, through the actions of Defendant's employee, Rafael Toribio, breached the duty of care owed to Plaintiff Rementer when Defendant's vehicle tapped Plaintiffs vehicle.
The Court notes that the Florida Driver's Handbook recommends a minimum following distance of 4 seconds during normal weather and traffic, and more if the driver is carrying a heavy load. As to braking distance, the Handbook explains that the average driver has a perception time is 3/4 to 1 second, and the average driver has a reaction time is 3/4 to 1 second. A driver traveling at 20 miles per hour may require 69 feet of stopping distance; a driver traveling at 30 miles per hour may require 123 feet of stopping distance. The Handbook further explains that if a driver's speed is doubled from 20 miles per hour to 40 miles per hour, the braking distance and impact are 4 times greater. If a driver's speed is tripled from 20 miles per hour to 60 miles per hour, the braking distance and impact are 9 times greater.
The Court has evaluated all of the evidence as to this issue. The Court notes that the day of the accident was clear and dry. Rafael Toribio testified he was familiar with the intersection, and he was driving the same vehicle he usually drives. Rafael Toribio testified that Plaintiff Rementer pulled out in front of his vehicle, after Rafael Toribio was already starting to stop as he approached the intersection, which lessened his stopping distance. The Court notes that, according to the Florida Driver's Handbook, a vehicle carrying a heavy load should increase its stopping distance, since the extra weight makes it more difficult to stop quickly. Rafael Toribio testified that Plaintiff Rementer did not pull out so suddenly that Plaintiff Rementer cut him off.
After consideration, the Court concludes that Rafael Toribio, Defendant's employee, was negligent in causing this accident, and Plaintiff Rementer was not comparatively negligent.
C. Causation
The Court is free to accept expert witness opinion, reject it, or give it the weight the Court thinks it deserves, considering the knowledge, skill, experience, training or education of the witness, the reasons given by the witness, and all the other evidence in the case.
122. In Eberhart v. Novartis Pharmaceuticals Corporation, 867 F.Supp.2d 1241, 1252-1253 (U.S.D.C. N.D. Georgia Oct. 31, 2011), the Court notes:
For example, the court in United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005), approved of a non-expert treating physician testifying about her diagnosis of an individual's injury, in that case a fractured jaw, because it was based on her personal observation during her treatment of that individual and was a necessary component of providing appropriate medical care. Henderson disapproved, however, of allowing the physician to offer her opinion that the fractured jaw was caused by a blow to the left side of the fact, because determining the cause of the injury was not necessary to provide medical treatment in that case and because the opinion on cause was only a hypothesis, which is quintessential expert testimony, id.
.....
Both Henderson and Williams cite approvingly to the Tenth Circuit's pre-2000 amendment decision in Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999), which held that a "treating physician, even when testifying as a lay witness, may state `expert' facts to the jury in order to explain his testimony. (Citation omitted). The Davoll court concluded that a treating physician's testimony that explained the meaning of specialized medical terms such as "rehabilitation," "modality," and "soft tissue injury" was not opinion testimony, but the statement of `expert facts.' id. The Davoll court also stated that treating physicians who are lay witnesses may offer opinions that are based on their experience as a physician and helpful to understanding their decision making process, id.
Thus, in the Eleventh Circuit, treating physicians who are not designated experts may offer "lay" testimony that implicates their specialized experience as a physician if the testimony is an account of their observations during the course of treatment or if it is offered for the purpose of explaining the physician's decision making process or the treatment provided. See United States v. Henderson. 409 F.3d 1293,1300 (11th Cir. 2005)....
The extent to which non-expert treating physicians may offer opinion testimony, however, is strictly and narrowly limited to the above circumstances. Even when offering an opinion based on personal observation, a physician is using "technical [ ] or other specialized knowledge" and "a process of reasoning which can be mastered only by specialists in the field," rather than "a process of reasoning familiar in everyday life." Fed. R. Ev. 701 & Advisory Committee's note to 2000 amendments. To allow a non-expert physician to offer opinion testimony beyond those limited circumstances specifically authorized by the Eleventh Circuit risks violating the plain language of Rule 701's prohibition on lay opinion testimony based on scientific, technical or other specialized knowledge, and would contradict the plain intention of the 2000 amendment to Federal Rule of Evidence 701, as expressed by the Advisory Committee, to subject such testimony to the reliability requirements of Federal Rule of Evidence 702 and the disclosure requirements of Federal Rule of Civil Procedure 26.
123. In Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999), the Tenth Circuit Court of Appeals states:
A treating physician is not considered an expert witness if he or she testifies about observations based on personal knowledge, including the treatment of the party. (Citation omitted.) A treating physician, even when testifying as a lay witness, may state "expert" facts to the jury in order to explain his testimony. See 4 Jack B. Weinstein & Margaret A. Beraer. Weinstein's Federal Evidence, Sec. 701.08 (Joseph M. McLaughlin ed., 2d Ed. 1999)(noting that a doctor testifying as a lay witness should be given "loose rein to state what are truly facts, even if they are `expert' facts). In addition, "a lay witness may testify as to any opinion `(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of a fact in issue.'" Weese v. Schukman, 98 F.3d 542, 550 (10th Cir. 1996)(quoting Fed. R. Ev. 701).
124. In Williams v. Mast Biosuroerv USA. Inc., 644 F.3d 1312, 1317-1318 (11th Cir. 2011), the Eleventh Circuit Court of Appeals notes: "These cases make clear that, when a treating physician's testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony, and it must comply with the requirements of Rule 702 and the strictures of Daubert."
124. Defendant United States moved in limine to preclude the testimony of Plaintiff Rementer's treating medical witnesses regarding causation and future prognosis. Defendant United States sought to preclude Plaintiffs treating physicians from offering expert opinion testimony on any issue that was outside the scope of their personal examination and treatment necessary for Plaintiff Rementer. The Court ruled on Defendant United States' Motion in Limine as follows:
As to expert testimony of Dr. Norbert Ming, Dr. James Dolan, Dr. Wayne Gardner, Dr. Denis Cavanaugh, the Court found:
Plaintiff Rementer has not shown that Plaintiffs failure to disclose the above expert witnesses was substantially justified or harmless. The Court therefore grants the Motion in Limine in part as to the above witnesses (Drs. Ming, Dolan, Gardner, Cavanaugh).
As to expert Testimony of Dr. Sean Mahan, Dr. Gary Gallo, Dr. Robert Masson, Dr. Robert Nucci, Dr. Dario Grisales, Dr. Douglas Price, the Court made the following determinations:
1. Expert Testimony Beyond the Scope of Personal Examination and Necessity for Treatment
The Court found:
At this point the Court does not know the content of medical records of each treating physician, and the Court does riot have the deposition of each treating physician. At trial, if the testimony of each treating physician as to causation is not shown to be sufficiently related to the information disclosed during the course of Plaintiffs treatment, appropriate objections and motions can be made. The Court therefore denies Defendant's Motion in Limine as to this issue without prejudice.
2. Exclusion for Failure to Provide Appropriate Summary of Facts and Opinions of Witnesses' Expected Testimony
The Court found:
The Court is troubled that Plaintiff believes that Plaintiffs disclosures are sufficient merely because the medical records of each treating physician contain the information somewhere. In this case, due to the alleged prior injuries and history of multiple accidents, evidence sufficient to establish causation is critical. However, Defendant did not seek an order compelling Plaintiff to cure the alleged inadequate disclosures, and to reopen discovery at this point would require the Court to reschedule the trial. The Court therefore denies the Motion in Limine as to this issue. (Dkt. 34, Order).
125. Expert opinion, even if uncontradicted, is not conclusive. At the same time, it may not be arbitrarily ignored, and some reason must be objectively present for ignoring expert testimony. See United States v. Hall, 583 F.2d 1288, 1294 (5th Cir. 1978).
126. A challenge to the accuracy of [an expert witness's] results, not the general scientific validity of his methods, goes to the weight rather than the admissibility of the evidence. "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." See Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1345 (11th Cir. 2003)(citing Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 589 (1993).
127. There is no dispute that the rear motor vehicle operated by Rafael Toribio collided with Plaintiff Rementer's vehicle when Plaintiff Rementer was stopped in traffic for a red light. However, other circumstances surrounding this accident are in dispute.
128. Plaintiff Rementer testified that the impact was a very hard tap, which, although Plaintiff Rementer was restrained by his seatbelt, caused Plaintiffs head to go forward and back, and the impact was enough to jolt Plaintiff Rementer.
129. Defendant United States of America contends that the impact was very slight, and Defendant's vehicle was moving at a very low speed at the time of the accident.
130. The Court notes that the National Highway Traffic Safety Administration ("NHTSA") sets safety standards for bumpers for passenger cars; See 49 C.F.R. Sec. 581. The "Part 581 bumper standard is, in part, a safety standard, purportedly complying with a mandate to consider safety contained in both the Safety Act and Cost Savings Act. The former directs the Secretary of Transportation (and, by delegation, NHTSA, see 49 C.F.R. § 1.50(a) (1983)) to "establish motor vehicle safety standards" designed to "reduce traffic accidents and deaths and injuries to persons resulting from traffic accidents," 15 U.S.C. § 1381 (1982); the latter requires NHTSA to consider "health and safety" in conducting its analysis of bumper standard costs and benefits, 15 U.S.C. § 1912(b)(1)(D) (1982), and prohibits the promulgation of any standard that would conflict with a Safety Act standard, id. at § 1912(b)(2). See Center for Auto Safety v. Peck, 751 F.2d 1336 (D.D.C. 1985).
"Bumper systems have been thought to be related to safety in four ways: 1) they may protect vehicle equipment, such as lighting and braking systems, that directly affect motor vehicle safety; 2) they may facilitate or hinder absorption of the destructive energy created by an automobile collision, i.e. in the patois of this case they may contribute to or impede "crash-energy management"; 3) they may contribute to pedestrian safety; and 4) if not of standard height, they may produce bumper interlock, thereby creating unsafe traffic conditions." Id., at 1343
On May 14, 1982, NHTSA issued a final decision adopting an amended bumper standard. The new rule reduced from 5.0 mph to 2.5 mph the fixed barrier and pendulum impact tests for both front and rear bumpers, reduced from 3.0 mph to 1.5 mph the corner pendulum impact tests, and eliminated the Phase II damage criteria, i.e., the bumper itself was no longer required to be undamaged after the impact tests. See Center for Auto Safety v. Peck, 751 F.2d 1336 (D.D.C. 1985). This is the amount of collision impact that the vehicle can withstand without sustaining damage to the vehicles' safety systems, i.e. "lighting, fuel, exhaust, cooling, or latching systems."
131. The Court has weighed each witness's opportunity and ability to see, hear, or know the things about which the witness has testified, the witness's memory, the witness's manner while testifying, the interest the witness may have in the outcome of the case, any bias or prejudice the witness may have, and other evidence that contradicts the witness's testimony in light of all the evidence. The Court has considered whether there was evidence that a witness testified falsely about an important fact, and whether there was evidence that at some other time a witness said or did something, or did not say or do something, that was different from the testimony of the witness at trial. The Court has considered whether any corroborating evidence supported their accounts. This evidence included medical records, photographs of Plaintiffs vehicle taken on the date of the accident, other trial exhibits, the testimony of Pierre Hall, the testimony of Plaintiffs treating physicians, Adrian Williams, D.C. and Robert Nucci, M.D., and the testimony of the Government's witness, Paul Lancaster, D.C. The Court notes below some of the conflicting evidence the Court considered in making a credibility determination as to the witnesses in this case:
132. Only Plaintiff Rementer and Defendant's employee, Rafael Toribio, witnessed the accident. Although police were called to investigate the accident, there was no independent investigation of the accident by a police officer. No traffic citations were issued. There is no expert testimony as to the speed of Defendant's vehicle at the time of the accident. There is limited circumstantial evidence surrounding the accident. Therefore, in determining the issues in this case, the credibility of the witnesses is of critical importance. The Court notes below some of the conflicting evidence the Court considered in making a credibility determination as to the witnesses in this case:
Rafael Toribio provided a statement which he wrote on the same day as the accident to Defendant upon Defendant's request, describing what happened in the accident. Rafael Toribio's statement includes his observation that Plaintiff Rementer pulled out the 7-Eleven into the line of traffic at the traffic signal. At trial, Plaintiff Rementer had no recollection of pulling out of the 7-Eleven.
Plaintiff Rementer filled out and submitted an accident report on his home computer in which Plaintiff Rementer indicated there was no improper driving action by either driver. Plaintiff Rementer testified at trial that Plaintiff Rementer did believe that there was improper driving action by Rafael Toribio, but when he filled out the accident report, Plaintiff Rementer was in pain, and just wanted to get the report filled out because Plaintiff wanted to get his car fixed. At the time of the trial, Plaintiffs vehicle was not repaired.
Plaintiff Rementer testified that Plaintiff Rementer heard screeching brakes from Defendant's vehicle before the accident, and Plaintiff Rementer braced himself prior to the impact. Plaintiff Rementer testified that he recalled being jolted in both directions at the time of the impact.
Rafael Toribio testified that he was starting to stop before Plaintiff Rementer pulled out of the 7-Eleven, and at the time of the accident, none of the items in his van fell. Rafael Toribio further testified that if he had one more inch of stopping distance, or possibly a couple of inches, he probably would not have tapped Plaintiff Rementer's vehicle.
Plaintiff Rementer testified that Plaintiff put on his emergency brake before the impact as well as after the impact, and the purpose of the brake was to prevent Plaintiff Rementer's vehicle from striking the vehicle in front of Plaintiff's vehicle, as if Defendant's vehicle were traveling at a high rate of speed and had to stop abruptly.
Rafael Toribio testified that he saw no damage at all to Plaintiff Rementer's vehicle.
Defendant took photos of Plaintiffs vehicle within an hour after the accident; in some photos, scratches and a small dent are visible.
There was no damage to Defendant's vehicle.
The intake form that Plaintiff Rementer filled out for Dr. Williams the day after the accident states "minimal damage" to Plaintiffs vehicle.
Rafael Toribio testified that immediately after the accident Plaintiff Rementer got out of his vehicle and spoke to Rafael Toribio in an "elevated" tone. Rafael Toribio testified that he asked Plaintiff Rementer if he was "okay", and Plaintiff said he was.
After the accident, Plaintiff Rementer called his employer to notify his employer that Plaintiff Rementer would not be present for his scheduled employment that day. The employer's telephone message includes the notation "No injuries."
Pierre Hall testified that Plaintiff Rementer looked "fine" and sounded "fine." Pierre Hall testified that he heard Plaintiff Rementer tell the police officer that he was fine. In other words, Plaintiff Rementer did not have visible injuries and Plaintiff Rementer did not have any trouble speaking, responding to questions, or making himself understood.
Plaintiff Rementer testified that after the accident, Plaintiff Rementer began to experience neck stiffness, but, when Pierre Hall first inquired whether Plaintiff Rementer was hurt, without any explanation Plaintiff Rementer did not tell Pierre Hall of the injuries for which Plaintiff Rementer now seeks an award of damages.
Plaintiff Rementer testified that he told Pierre Hall that his neck was hurting at the end of his last conversation with Pierre Hall.
Pierre Hall testified that Plaintiff Rementer did not tell him he was injured.
Plaintiff Rementer testified that Plaintiff Rementer telephoned the police after the accident. Plaintiff Rementer testified that, an hour after the accident, Plaintiff felt so uncomfortable due to alleged injuries resulting from the accident that Plaintiff Rementer did not want to wait for the police to investigate the accident when the police arrived, but Plaintiff Rementer also declined more than one offer of medical care and transportation to an urgent care facility or hospital, did not tell Pierre Hall or Rafael Toribio that Plaintiff Rementer was injured or describe the nature of Plaintiffs injury, and did not independently seek medical care that day.
When Plaintiff Rementer sought medical treatment from Dr. Williams the next day, in the intake form Plaintiff Rementer filled out, Plaintiff Rementer indicated that Plaintiff Rementer struck his head and was "dizzy/dazed" after the accident. At trial, on direct examination, Plaintiff Rementer did not testify that Plaintiff Rementer struck his head. Plaintiff Rementer testified that Plaintiff was nervous and "in shock" after the accident, but Plaintiff Rementer did not check the boxes for "nervous" or "upset" on the intake form.
The report of Dr. Williams states that Plaintiff Rementer reported that Plaintiff was "jarred violently" in the accident. At trial, Dr. Williams testified that the words "jarred violently" were Plaintiff s words. At trial, Plaintiff Rementer denied that he told Dr. Williams that Plaintiff was "jarred violently."
Dr. Williams excused Plaintiff Rementer from returning to work for three days. Plaintiff Rementer returned to work, and continued working until Plaintiff Rementer's subsequent accident. Plaintiff Rementer testified that his shoulder bothered him when Plaintiff returned to work, but Dr. Williams' records do not reflect that Plaintiff Rementer complained of shoulder pain.
The records of Dr. Williams begin to refer to "low back pain" and muscle spasm on Plaintiffs left into Plaintiffs left lower extremity on March 20, 2013; the records state "Plaintiff reported exacerbation of his injuries while performing his normal work duties." Dr. Williams' records do not refer to Plaintiff Rementer's subsequent accident which occurred on March 18, 2013.
The initial orthopedic consultation of Dr. Michael J. Broom on April 5, 2013, relating to treatment injuries sustained in the subsequent accident of March 18, 2013, states "The patient is also currently treating for a motor vehicle accident which he had on January 19, 2013 however the patient states his only problem in the motor vehicle accident was his neck."
The IME report of Dr. Lancaster states that Plaintiff Rementer's chief complaints were that Plaintiff was experiencing upper neck pain and headaches that come and go. Plaintiff Rementer did not complain of left shoulder pain.
The IME report of Dr. Lancaster states Plaintiff Rementer had a permanent-type shoulder injury. At trial, Plaintiff Rementer testified that he did not tell Dr. Lancaster about the permanency of Plaintiffs left shoulder injury, only the permanent hand injury, and Dr. Lancaster was mistaken about Plaintiffs past history.
The IME report of Dr. Lancaster states that Plaintiff reported Plaintiff was initially "in shock" after the accident. On cross-examination, Plaintiff Rementer testified that he did tell Dr. Lancaster he was "in shock," in the sense of mental surprise, not in the sense of his body having suffered a physical trauma.
The IME report of Dr. Lancaster states that Plaintiff Rementer injured his low back at work on February 20, 2013. The correct date of the subsequent accident is March 18, 2013.
The report of Dr. Bulmer states "no prior shoulder injuries." The evidence shows that Plaintiff Rementer sustained two prior left shoulder injuries.
Plaintiff Rementer testified that he did tell Dr. Bulmer about prior shoulder injuries, that Plaintiff Rementer now knows that Plaintiff Rementer did have prior shoulder injuries, and Plaintiffs answer on deposition was not correct.
The report of Dr. Grisales indicates that Plaintiff Rementer reported Plaintiff didn't have any neck pain or headaches until Plaintiff was the restrained driver of his vehicle when a UPS truck "slammed into" the back of his vehicle, and the next day Plaintiff started to experience horrible neck pain and headaches. Dr. Grisales' impression on June 6, 2014 was "left shoulder pain and rotator cuff syndrome." Plaintiff Rementer testified at trial that Plaintiff began to experience neck stiffness and pain within an hour of the accident.
Dr. Nucci testified at trial that his understanding of what Dr. Grisales does, and what he and all of the physicians do, is document what the patient tells them to the extent they can, in the patient's words, if they can. In other words, Dr. Grisales' records indicate that Plaintiff Rementer described the accident to Dr. Grisales, who incorporated Plaintiffs description of the accident into Dr. Grisales' records. The Court understands that Plaintiff Rementer stated to Dr. Grisales that the vehicle "slammed into" Plaintiffs vehicle.
133. Both versions of the accident cannot be true. As to how hard Defendant's vehicle hit Plaintiff Rementer's vehicle, the Court finds the testimony of Rafael Toribio to be more credible than the testimony of Plaintiff Rementer. The Court credits Rafael Toribio's testimony that no articles within the postal van moved at the time of the collision, and if he had one or two more inches, Rafael Toribio probably could have avoided tapping Plaintiff Rementer's vehicle.
The damage to Plaintiffs vehicle, if any, was minor damage to the bumper only, and there was no damage to Defendant's vehicle. Plaintiff Rementer did not participate in an investigation of the accident by the police after Plaintiff Rementer requested a police investigation, declined medical care without explanation, and did not seek emergency medical care that day. Plaintiff Rementer testified Plaintiff Rementer told Pierre Hall that Plaintiff Rementer was injured, but the record of Plaintiffs phone call to Plaintiffs employer includes the notation that there were no injuries. After seeking medical care, Plaintiff Rementer returned to work full time within three days of the accident, and continued to work full time until a subsequent accident.
Plaintiff Rementer's trial testimony as to how Plaintiff Rementer felt after the accident is different from the information Plaintiff Rementer provided to his treating physician. Plaintiff Rementer remembered some important details of this accident and other accidents, and did not remember other important details of this accident and other accidents. Plaintiff Rementer's demeanor at trial belied the truth of some of Plaintiffs trial testimony. The information as to past accidents that Plaintiff Rementer provided to Plaintiffs treating physicians was not complete and accurate.
In light of the fact that the bumper of Plaintiffs vehicle took the direct impact at a very low rate of speed, a light tap, and Plaintiff Rementer was a restrained driver in a cushioned seat, it is very difficult for the Court to understand how there was enough force at impact for Plaintiff Rementer to have been moved at all by the collision.
134. Opinion of Dr. Williams
Dr. Williams opined as to causation and permanency of Plaintiffs injuries. The records of Dr. Williams state:
Based upon the patient's history, examination, evaluation and clinical findings, it could be stated in all possibility that the patient's symptomatology can be directly attributed to the aforementioned 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 seven per cent whole person, using the guidelines and evaluation of permanent impairment, 6th edition, American Medical Association.
The American Medical Association defines "impairment" as an alteration in an individual's health or a deviation from normal bodily functioning. Permanent impairments are those that have reached their maximum medical improvement and are unlikely to change in the next year.
Dr. Williams testified at trial that some accidents were not disclosed to him. The Court heard some of Plaintiffs deposition testimony, from which the Court could have concluded that Plaintiff Rementer did not accurately report his medical history to Dr. Williams. Dr. Williams did not review any records of treatment related to Plaintiffs prior accidents; Dr. Williams relied on the history given to him by Plaintiff Rementer.
Dr. Williams accepted Plaintiff Rementer's report of the accident as a violent impact rather than a soft impact, which the Court has determined was not credible. The description of the accident given by Plaintiff Rementer to Dr. Williams exaggerates the impact. At trial, Dr. Williams testified he did not know the speed at which the accident happened, and did not know the condition of the vehicles.
Dr. Williams testified at trial that there was discussion of Plaintiff Rementer's subsequent accident, but the subsequent accident was not noted in the Dr. Williams' records in the office visit after the accident, although Plaintiffs complaint of low back pain is included.
Dr. Williams referred Plaintiff Rementer for an MRI. The MRI report states that Plaintiff Rementer has a disc herniation and bulging discs.
Dr. Grisales, a later treating physician, disagreed with the reading of the MRI, and opined that Plaintiff Rementer had spondylytic ridges with disk complex, not related to the accident. Although Plaintiff Rementer continued treatment with Dr. Williams until May 11, 2015, the opinion of Dr. Grisales was not provided to Dr. Williams.
Dr. Williams took a history, examined Plaintiff Rementer and performed tests. Dr. Williams referred Plaintiff Rementer for an MRI, the report of which states the presence of herniated discs. However, Dr. Williams' opinion is premised on facts reported by Plaintiff Rementer which are not accurate, and material omissions of Plaintiffs prior accidents. The MRI report of herniated discs is disputed by Plaintiffs later treating physician, Dr. Grisales.
For these reasons, the Court rejects the opinion of Dr. Williams as to causation and permanency.
135. Opinion of Dr. Nucci
Plaintiff Rementer began treating with Dr. Nucci on March 4, 2014. Dr, Nucci's records state:
"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.....
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....
Dr. Nucci referred Plaintiff Rementer to Dr. Grisales, who evaluated Plaintiff Rementer:
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.
.....
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 27).
Dr. Grisales referred Plaintiff Rementer to Dr. Bulmer for evaluation of Plaintiff Rementer's left shoulder pain:
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.
(Def. Exh. 20, Nucci 16).
Dr. Bulmer referred Plaintiff Rementer for an MRI in July, 2014:
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.
Dr. Nucci relied on Plaintiff Rementer's account of the accident in his opinion of the alleged permanent facet joint injury caused by the subject accident. The Court has determined that Plaintiff Rementer's account of the accident is not credible.
There is no indication that Dr. Nucci reviewed any records of Plaintiff Rementer's prior accidents involving injuries to Plaintiffs neck and shoulder.
Dr. Grisales diagnosed rotator cuff syndrome on June 6, 2014. The Court notes that Plaintiff Rementer did not complain of shoulder pain after the accident, and was able to continue working full time after a brief absence of three days.
Except for the MRI, there is no indication that Dr. Grisales reviewed records of Plaintiff Rementer's prior accidents involving the same injuries.
Dr. Bulmer's report states Plaintiff Rementer denies prior shoulder injuries. The Court notes that the evidence shows that Plaintiff Rementer sustained two prior shoulder injuries.
To the extent that Dr. Nucci relies on the opinions of Dr. Grisales and Dr. Bulmer, Dr. Nucci's opinion is flawed by reason of materially untruthful testimony given to Plaintiffs treating physicians by Plaintiff Rementer. The Court has determined that Plaintiffs version of the accident is not credible, and Plaintiff did not disclose prior accidents to Dr. Bulmer, Dr. Grisales and Dr. Nucci.
The Court therefore rejects the opinion of Dr. Nucci as to causation and permanency.
136. Opinion of Dr. Price
Plaintiff Rementer began treating with Dr. Price on August 12, 2014, complaining of neck pain, left shoulder pain, headaches 3 to 4 times a week, pain in the mid back, a lot of neck pain and stiffness, and radiation of pain into the left upper extremities.
Dr. Price opined as to the permanency of Plaintiff Rementer's injuries:
"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.
(Plaintiff's Exhibit 25).
Plaintiff Rementer did not disclose prior shoulder injuries to Dr. Price; Plaintiff's disclosure of the 2003 accident was limited to a wrist injury. Plaintiff Rementer did not disclose the 2007 re-injury of Plaintiff's left shoulder.
Dr. Price's opinion conflicts with Plaintiff's own testimony and records that establish that pain from Plaintiff's low back injury arose from the worker's compensation accident of March 18, 2013, subsequent to the subject accident.
Plaintiff ascribes his inability to work at the same job to the accident of January 29, 2013. However, Plaintiff continued working full time until Plaintiff's subsequent accident on March 18, 2013, and voluntarily resigned his position in conjunction with a worker's compensation settlement for that accident.
Based on the above reasons, the Court rejects the opinion of Dr. Price as to causation and permanency.
137. Opinion of Dr. Lancaster
Dr. Lancaster's IME report states:
DIAGNOSIS: Upper cervicalgia
CAUSAL RELATIONSHIP: If the accident history by the claimant is
accurate then a causal relationship with the
initial complaints exists to the accident of 1-29-13.
CONCLUSION: Based on my examination of the claimant, my
review of the submitted records, my clinical
experience, the mechanism of the injury and
any applicable research, it is my opinion that
no further treatment, massage therapy, or
diagnostic is reasonable, related, or medically
necessary to the motor vehicle accident of
1-29-13.
In determining whether Plaintiff Rementer reached maximum medical improvement, Dr. Lancaster expressed his opinion as to causation.
Dr. Lancaster relied in part on his review of Dr. Williams' records and the opinions expressed therein. The Court has rejected the opinion of Dr. Williams as to causation and permanency because the facts of the accident as reported by Plaintiff Rementer to Dr. Williams are not credible, because Plaintiff Rementer did not include all of his prior accidents in the history given to Dr. Williams, and because Dr. Williams did not examine records of the prior accidents and the treatment rendered to Plaintiff Rementer. To the extent that Dr. Lancaster relies on the records of Dr. Williams, the Court rejects the opinions of Dr. Lancaster.
The Court has determined that Plaintiff Rementer's report of the accident and what occurred at the time of the accident is not credible. To the extent that Dr. Lancaster relies on Plaintiff Rementer's report of the accident in assessing the "mechanism of the injury," the Court rejects the opinions of Dr. Lancaster.
The Court notes that Plaintiff Rementer did not include all of Plaintiffs prior accidents in the history reported to Dr. Lancaster.
For the above reasons, the Court rejects the opinion of Dr. Lancaster as to causation.
138. Whether Plaintiffs injuries meet the Florida No-Fault threshold
Pursuant to Section 627.737(2), Florida Statutes, a plaintiff may not recover noneconomic damages from an "owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405" unless the claimed injury or disease is: "a) Significant and permanent loss of an important bodily function[;] b) Permanent injury within a reasonable degree of medical probability, other scarring or disfigurement[;] c) Significant and permanent scarring or disfigurement [;] or d) Death.
The Court has rejected the opinions of Drs. Williams, Nucci and Price as to permanency. The Court concludes that Plaintiff Rementer has not met Plaintiffs burden as to this issue.
139. Other Issues
The other issues for determination include: 1) Plaintiffs damages; and 2) whether Plaintiff failed to mitigate damages by allegedly continuing to work after this accident.
Because the Court has rejected the opinions of Drs. Williams, Nucci, Price and Lancaster as to causation and permanency, the Court has not determined the amount of damages or whether Plaintiff Rementer failed to mitigate damages. The issues are moot.
Although the Court determined that Defendant's employee, Rafael Toribio, breached the duty of care to Plaintiff Rementer, the Court has determined that Plaintiff Rementer has not established that the accident of January 29, 2013 caused Plaintiff Rementer's alleged injuries and that those injuries are permanent. Therefore, the Court directs the Clerk of Court to enter a Final Judgment in favor of Defendant United States of America, and close this case.
Accordingly, it is
ORDERED that the Clerk of Court shall enter a Final Judgment in favor of Defendant United States of America, and against Plaintiff Albert Rementer, Jr., and close this case.
DONE and ORDERED.
