
    Robin COLLINS, Appellant, v. CATALYTIC, INC. and Florida Power & Light Wrap-Up, Appellees.
    No. 90-2682.
    District Court of Appeal of Florida, First District.
    April 2, 1992.
    Rehearing Denied May 12, 1992.
    
      Robert H. Schott, Stuart, for appellant.
    Shelley M. Punancy of Beisler & Beisler, West Palm Beach, for appellees.
   WOLF, Judge.

Claimant challenges an order denying her permanent disability benefits, entered on the ground that claimant reached maximum medical improvement with no permanent impairment. We find there was competent substantial evidence to support the findings of the judge of compensation claims (JCC), and affirm.

The issue in this case focuses on the conflicting medical evidence concerning claimant’s permanent impairment. The JCC made extensive findings concerning the claimant’s injury and the relative credibility and weight to be given each doctor’s testimony. In light of the importance of these findings, it is essential that they be repeated in full. The JCC found as follows:

b.The claimant, ROBIN COLLINS, was injured when a large box fell onto her chest and pinned her in the chair. She has been seen and treated primarily by Andrew F. Greene, M.D., an orthopedic surgeon. Her current physical complaints are pulling and tightness in the right neck and right shoulder blade, earache, the appearance of a lump at the right neck, and discomfort in the right side of the chest. She is currently employed as a food server at a McDonald’s Restaurant where she works four hours a day, three days per week. Additionally, she has been working at a bakery since April of 1990, four to five hours a day, two days per week.
c. Four physicians testified in this cause. Dr. Andrew F. Greene, the claimant’s treating orthopedic surgeon, testified that he first saw the claimant for the industrial accident of September 26, 1987, on October 8, 1987. He found that the claimant had reached maximum medical improvement on March 29, 1989, with no permanent impairment based on any logical scheme that he was aware of. Specifically, Dr. Greene felt the claimant had no permanency per the AMA Guides to Impairment and no permanency per the Manual for Orthopedic Surgeons in Evaluation of Permanent Physical Impairment. Additionally, based upon his educational background, experience and training, she had no impairment. Dr. Greene testified the claimant could return to work without physical restrictions. For reasons more fully set out below, I accept the opinion of Dr. Greene and find that the claimant reached maximum medical improvement with no permanent impairment prior to February 18, 1990. Specifically, I find that the claimant reached MMI on March 29, 1989.
d. Leonard E. Greenbaum, a chiropractor and a registered physical therapist, testified on behalf of the claimant. He had performed a functional capacities evaluation of the claimant on July 21, 1988, approximately ten months post date of the accident. At that point the claimant was still undergoing treatment. Dr. Greenbaum testified that at that point he did not know whether the claimant has sustained any permanency nor whether any could be reasonably expected. Dr. Greenbaum readily admitted that with respect to whether the claimant had a permanency or not, he would have to defer to the treating orthopedic physician. As he stated, his job was to find out what the claimant’s functional capacity was and that was what his evaluation was geared toward. I find that Dr. Greenbaum’s testimony is not competent substantial evidence of a permanent impairment. He saw the claimant on only one occasion, approximately eight months before Dr. Greene made his determination regarding maximum medical improvement and permanency. The visit was for a limited purpose. I do not find Dr. Greenbaum’s testimony to be inconsistent with Dr. Greene’s ultimate finding of no permanency and no work restrictions.
e. Hooshang Hooshmand, a neurologist, testified on behalf of the claimant. Dr. Hooshmand is an unauthorized physician who rated the claimant with a 5% total body impairment and imposed work restrictions. According to Dr. Hooshmand, the rating was arrived at based upon EMG, neurological exam, and thermogra-phy.
f. I am skeptical of the opinion of Dr. Hooshmand for several reasons. He failed to explain how he arrived at the particular 5% as the impairment rating. He conceded that during his treatment of the claimant he never had any records concerning her from any other prior treating physicians and in particular he never reviewed any records from Dr. Greene, the treating orthopedic surgeon. He admitted that all he had was bottles of medications brought by the claimant and the history she gave to him. He appeared to be unconcerned with the pri- or treatment she had been provided. Dr. Hooshmand appeared to me to be more an advocate for the claimant than an objective, unbiased witness. I found the overall tenor of his testimony to be an attack on Dr. Greene and an extollment of his own virtues. I found this to be inappropriate. Dr. Hooshmand was hostile and argumentative as well as generally non-responsive to cross examination questions by counsel for the employer/carrier. I do not accept Dr. Hoosh-mand’s testimony as constituting competent substantial evidence of permanent impairment. I find he failed to give a cogent and well reasoned explanation for the 5% rating.
g. Leonard M. Holtzman, D.C., saw the claimant at her request on June 5, 1990. He opined that the claimant had reached MMI under chiropractic and physical therapy. He saw no objective evidence of improvement following extensive care to date and opined that it was doubtful that additional care by himself or any other chiropractor would bring about further resolution of her complaints. He assigned the claimant a 5% impairment rating based upon diagnosed chronic myofascial pain syndrome.
h. Dr. Holtzman agreed that his objective findings in comparison to Ms. Collins’ subjective complaints were not in proportion to one another and he found the two to be inconsistent. According to Dr. Holtzman, if he had seen the claimant as a new patient, someone who had just come in, someone who had just originally had the injury, he would have been surprised that she had the severity of the complaints that she was attributing to the accident. I find it significant that Dr. Holtzman did not assign any work restrictions to the claimant. He testified that the claimant has a soft tissue type injury which he did not personally believe would be worsened by different activities. He could find no specific limitation which he would assign due to the objective findings on his examination.
i. I do not find Dr. Holtzman’s testimony to be competent substantial evidence of a permanent impairment. This is based upon the inconsistency between the severe subjective complaints voiced by the claimant at the time of his examination and the scarcity of the objective findings. My finding is also based upon Dr. Holtzman’s failure to find any specific limitation which he would assign due to the objective findings on examination.
j. During his care and treatment of the claimant, Dr. Greene could never find any objective basis for the claimant’s subjective complaints. He found the claimant to have reached maximum medical improvement on March 29, 1989, and at that point with reference to her subjective complaints, stated, “it seems as though her symptoms are going to go on without any end in sight, and I see no reason to prolong treatment in this office.” Dr. Greene felt the claimant was employable as of March 29, 1989, with certain work restrictions imposed based only upon her subjective complaints. Specifically, he did not feel she should have a job where she was required to look overhead and he did not think heavy lifting was appropriate. With respect to the physical capacities form dated March 29, 1989, Dr. Greene testified that he found the forms to be burdensome and they were therefore completed by having his secretary sit down with the patient and put down anything the patient wanted. Dr. Greene found the form to be of no use to him but viewed them as a requirement of the workers’ compensation system. The data on the form dated March 29, 1989, came 100% from the claimant. Dr. Greene opined that the claimant had no orthopedic diagnosis that he could make and that she had no permanency. With respect to the work restrictions imposed on March 29, 1989, Dr. Greene did not expect them to be permanent. As of October 2, 1989, he felt the claimant could return to any work available to her without restrictions. Dr. Greene found no basis upon which he could sensibly propose that the restrictions he initially imposed be enforced forever.
k. In accepting Dr. Greene’s opinion that the claimant reached maximum medical improvement with no permanent impairment and that she could return to work without any restrictions to any job available to her, I found his opinion on the claimant’s credibility to be helpful. According to Dr. Greene, the claimant’s complaints initially seemed consistent with having a heavy weight fall on one’s chest, knocking one back in a chair. The fact that they went on so long, despite treatment and without any objective findings coming to the fore, caused him to find the complaints to be less credible with time. I do not find it to be inconsistent that Dr. Greene prescribed medications as treatment for the claimant’s subjective complaints in that I believe as he stated, he was trying to help her in any way he could. I am satisfied that having been the primary treating physician for the claimant following her on the job injury, that Dr. Greene was the most qualified physician to address the issue of whether the claimant sustained a permanency as a result of that injury and that his testimony constituted the competent substantial evidence that in fact the claimant did not sustain any permanency. The AMA Guides are but one tool the treating physician has at his disposal in arriving at an opinion with respect to permanent impairment. I am satisfied that Dr. Greene was justified in relying upon his education, experience, background, and training to determine that the claimant had no permanent injury resulting from the accident of September 26, 1987. Based upon the foregoing, I accept Dr. Greene’s opinion over that of the other physicians who testified in this cause. Dr. Greene is known to me and I find him to be a highly qualified orthopedic surgeon.

We find that each of these findings are supported by the record.

The dissent concludes that we should perform a de novo review by evaluating the credibility of witnesses, resolving conflicts, and reweighing the evidence. That is not the job of the appellate court. Batka v. Duffs Smorgasbord, 560 So.2d 377 (Fla. 1st DCA 1990). We, thus, decline to enter into a lengthy discussion of the relative credibility of the medical testimony.

The detailed reasoning of the JCC, including familiarity with the doctor and the subject matter in the instant case, demonstrates the reason that the appellate court should not attempt to interfere with the discretion granted to the JCC to make factual and credibility determinations. The rule is well established that a judge of compensation claims has the discretion to accept the testimony of one physician over that of others, Batka v. Duffs Smorgasbord, supra, and that the judge’s discretion in such regard should not be disturbed on appeal unless the testimony in support thereof fails to meet the test of substantial evidence. Griffith v. McDonalds, 526 So.2d 1032 (Fla. 1st DCA 1988). Moreover, the judge’s findings are to be affirmed if permitted by any view of the evidence and its permissible inferences. Gomez v. Neckwear, 424 So.2d 106 (Fla. 1st DCA 1982) (en banc). In that we find competent, substantial evidence in support of the order, it is

AFFIRMED.

WIGGINGTON, J., concurs.

ERVIN, J., dissenting with written opinion.

ERVIN, Judge,

dissenting.

While ascribing to the rule that a judge of compensation claims (JCC) has the discretionary right to accept the testimony of one physician over that of another, I consider it necessary to point out that this rule should be tempered by the recognition that the exercise of such discretion must be “solidly rooted in a firm foundation of fact to support the opinion of the expert upon whom the Deputy chooses to rely.” Geiger Distribs., Inc. v. Snow, 186 So.2d 507, 509 (Fla.1966) (emphasis added). Moreover, when, as here, the JCC’s findings on permanency vel non depend entirely on medical evidence contained in physicians’ reports and deposition testimony, the vantage point of a reviewing court is not inferior to that of the trier of fact in interpreting such evidence. McCabe v. Bechtel Power Corp., 510 So.2d 1056 (Fla. 1st DCA 1987).

It appears to me that a limited form of de novo review by this court is particularly appropriate in view of the substantial discrepancies in the medical testimony of claimant’s primary treating physician, Dr. Andrew Greene, whose opinion the JCC approved over those of other physicians to the contrary, in deciding that claimant had reached maximum medical improvement (MMI) on March 29, 1989, with no permanent impairment (PI). Dr. Greene testified that he first treated the claimant on October 8, 1987, for injuries she received in an industrial accident which occurred on September 26, 1987. Following his examination, which included a range of motion test, the results of which showed limitations in claimant’s range of movements, Dr. Greene prescribed several medications for pain, including Flexeril, a drug commonly used to relieve muscle spasms, although he stated that he did not then or at any time thereafter observe muscle spasms. On January 7, 1988, he released claimant for light-duty sedentary work with restrictions, which included no heavy lifting, bending, stooping, or climbing. When he determined claimant had reached MMI on March 29, 1989, with no PI, he inconsistently continued to impose restrictions against heavy lifting or work that would require her to look upward.

Clearly a JCC’s finding that a claimant has achieved MMI with no PI based upon a medical opinion to that effect cannot be sustained when the doctor also imposes physical restrictions. See Jackson v. Publix Supermarkets, Inc., 520 So.2d 50, 51 (Fla. 1st DCA 1987). Although it is true that Dr. Greene later, in October 1989, decided that claimant could work without restrictions, this opinion was undermined by his testimony that when he saw the claimant in January 1990 her condition was essentially the same as it was the preceding March, when, as stated, restrictions remained in force. Indeed, he continued to prescribe Flexeril for claimant as late as April 1990.

In resting her findings upon Dr. Greene’s testimony, the JCC related that Dr. Greene had testified that the length of time that claimant’s subjective complaints of pain persisted caused him to consider the complaints less credible. Moreover, the JCC did not find it inconsistent for Dr. Greene to continue prescribing pain medications as treatment for the claimant’s complaints, because she accepted his testimony that he was simply trying to help his patient in any way that he considered reasonably possible.

Although the inconsistency of Dr. Greene continuing to prescribe Flexeril, despite his alleged lack of objective findings of muscle spasms even after assessing MMI, may be explained by the reason that he was treating claimant’s subjective symptoms only, the fact remains that Dr. Greene performed no physical examination upon claimant after July 1988, yet nonetheless determined claimant was at MMI as of March 1989, based solely upon his observations of her. Because Dr. Greene failed to conduct an examination as of the date he determined claimant was at MMI, or the later date when he removed all work restrictions, any opinion by him as to claimant’s medical condition is, in my judgment, seriously flawed and is without the foundation required by Geiger Distributors.

Dr. Greene’s questionable medical opinion should be compared with that of Dr. Leonard Holtzman, a chiropractor, who, at the employer/carrier’s (E/C’s) request, performed an independent medical examination on the claimant on June 5, 1990, shortly before the hearing conducted on the claim. His examination included a range of motion study, which revealed minimum to moderate muscle spasms in the right neck and upper trapezius muscles. He considered this to be an objective medical finding indicative of a permanent condition. See Martin County Sch. Bd. v. McDaniel, 465 So.2d 1235 (Fla. 1st DCA 1984) (en banc), appeal & cross-appeal dismissed, 478 So.2d 54 (Fla.1985); Florida Sheriffs Youth Fund v. Harrell, 438 So.2d 450 (Fla. 1st DCA 1983). Dr. Holtzman found that claimant had suffered a soft-tissue injury, which he described as chronic myofascial pain syndrome, with a possible herniated cervical disc. While agreeing with Dr. Greene that claimant had reached MMI, he assigned a five percent PI rating based upon his objective findings.

Despite the fact that Dr. Holtzman’s opinion of PI was based upon a far more recent medical examination than Dr. Greene’s, the JCC nonetheless rejected his opinion, explaining that claimant’s subjective complaints were inconsistent with Dr. Holtzman’s objective findings, and that Dr. Holtzman had failed to assign work restrictions. The JCC’s rejection overlooks evidence clearly disclosing that Dr. Holtzman made objective findings which supported a PI rating of five percent. Moreover, notwithstanding his failure to assign explicit work restrictions, Dr. Holtzman explained that he ordinarily does not impose limitations because of the nature of the injury— soft tissue injury — rather he customarily leaves such restrictions to the patient.

Claimant was also examined by Dr. Leonard Greenbaum, a chiropractor, who performed a functional capacity evaluation on claimant on July 21, 1988. Although Dr. Greenbaum did not determine either MMI or PI, because he did not examine claimant for diagnostic purposes, he did state that claimant appeared to be suffering from post-traumatic myofascitis, a soft-tissue injury, a condition which, in his judgment, would last “quite a long time.”

The JCC nonetheless discounted Dr. Greenbaum’s testimony, stating that she did not consider his testimony to be inconsistent with Dr. Greene’s ultimate determination of no permanency and no work restrictions. Apparently the JCC overlooked Dr. Greenbaum’s statement that claimant’s condition, post-traumatic myofascitis, is usually around for quite a long time, as well as the fact that myofascitis was also diagnosed later by Dr. Holtzman who, as stated, assigned claimant a five percent PI rating.

Finally, the deposition testimony of Dr. Hooshang Hooshmand, a neurologist, was considered by the JCC and rejected as well. He testified that when he first saw claimant on February 2, 1988, he observed muscle spasms in the right sternocleidomastoid muscle. A thermogram showed moderate temperature increase over the muscle, indicating damage which causes spasms and increased temperature. Additionally, an EMG revealed a moderate spasm of the neck muscles on the right side. Dr. Hoosh-mand, as had Dr. Holtzman, diagnosed a soft-tissue injury to the muscles to that portion of the neck, post-traumatic depression, and atherogenic depression and perpetuation of pain. On February 25, 1988, Dr. Hooshmand opined that claimant had reached MMI with a five percent PI rating pursuant to the AMA Guides. He moreover restricted claimant from heavy labor, lifting over 25 pounds, long distance driving, and repetitive overhead looking.

In discarding Dr. Hooshmand’s five percent PI rating, the JCC stated that Dr. Hooshmand failed to explain how he arrived at this rating. Nevertheless, the record discloses that Dr. Hooshmand examined claimant on six occasions between February 1988 and April 1990, and found the presence of muscle spasms on all six occasions. Moreover, his findings were confirmed by and consistent with objective studies made in two EMGs and one thermo-gram. The JCC also pointed out that Dr. Hooshmand conceded during his treatment that he had never obtained any of claimant’s records from any of the other physicians, particularly those of Dr. Greene, the treating orthopedic physician. Nevertheless, Dr. Hooshmand’s testimony was clear that he had performed his own examination and tests; as a result, he was not required to rely upon the findings of others. See Rodriguez v. Howard Indus., 588 So.2d 646, 649 (Fla. 1st DCA 1991).

Finally, the JCC’s order recited that Dr. Hooshmand appeared to be more of an advocate on behalf of the claimant rather than an objective, unbiased witness, in that he was extremely critical of Dr. Greene’s continued prescription of what Dr. Hoosh-mand considered to be highly addictive and unnecessary drugs. Although it is true that a certain portion of Dr. Hooshmand’s deposition testimony may be considered argumentative insofar as his criticism of the treatment recommended by Dr. Greene, this portion of Dr. Hooshmand’s testimony was generally presented during his cross-examination by the E/C’s attorney and followed his earlier testimony in which he had assigned a permanency rating. Hence, Dr. Hooshmand’s opinion regarding permanency does not appear to have been influenced by his disapproval of Dr. Greene’s prescribed regimen.

In considering the internally inconsistent testimony of Dr. Greene, and comparing it with the conflicting medical testimony of the other physicians, I consider that the instant case falls within the rule recognized in Tucker v. Agrico Chemical Co., 476 So.2d 729, 731 (Fla. 1st DCA 1985), stating: “While the deputy’s election to rely on one doctor in conflict with all other medical testimony before him would ordinarily be within his prerogatives, his reliance must of course be warranted by the substance of that medical testimony, and not merely by the doctor’s conclusion against an increased rating....” (Emphasis added; footnote omitted.) I acknowledge that we have held that if the reason for a JCC’s rejection of the testimony of one or more doctors is not apparent in the record, or if it appears that the JCC overlooked or ignored evidence in the record, the case must be reversed and remanded for additional findings. See Ate Fixture Fab v. Wagner, 559 So.2d 635 (Fla. 1st DCA 1990); Yeargin Constr. Co. v. Hutchinson, 547 So.2d 1269 (Fla. 1st DCA 1989); Allied Parcel Delivery v. Dixon, 466 So.2d 439 (Fla. 1st DCA 1985). Nevertheless, because this court’s vantage point is not inferior to that of the JCC in interpreting the medical testimony submitted via deposition, and because the JCC’s acceptance of one physician’s testimony over that of the others is not, in my judgment, solidly rooted in a firm foundation of fact, I see no need to remand for additional findings. Rather, I would REVERSE outright the JCC’s determination that claimant has reached MMI with no PI rating, and REMAND the case with directions to assign a PI rating and make a determination of claimant’s entitlement to permanent disability benefits. 
      
      . It should be noted, however, that the dissent apparently questions the competency of Dr. Greene’s opinion based on the fact that Dr. Greene continued to prescribe medication and impose restrictions after the date of MMI. A full reading of Dr. Greene's testimony indicates that these measures were prescribed as a result of an accommodation to the claimant rather than based upon any identifiable medical im- „ pairment.
     
      
      . Dr. Greenbaum explained that this is a test designed to determine how much the subject can lift, pull, or push in different positions. It involves three different parts: a range of motion and gross strength examination, a static strength test, in which the subject performs isometric strength tests, and a maximum effort dynamics test, wherein the subject moves weighted objects while in different positions.
     