Alan McLeod Funeral Home v. Cooksey, 87-711

• Decision Date: 03 June 1988
• Docket Number: No. 87-711,87-711
• Citation: 527 So.2d 253,13 Fla. L. Weekly 1331
• Parties: 13 Fla. L. Weekly 1331 ALAN McLEOD FUNERAL HOME and Northwestern National Insurance Company, Appellants/Cross-Appellees, v. Tom COOKSEY, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 253

527 So.2d 253

13 Fla. L. Weekly 1331

ALAN McLEOD FUNERAL HOME and Northwestern National Insurance Company, Appellants/Cross-Appellees, v. Tom COOKSEY, Appellee/Cross-Appellant.

No. 87-711.

District Court of Appeal of Florida,

First District.

June 3, 1988.

Lori M. Berliner, of Walsh, Theissen & Boyd, Ft. Lauderdale, for appellants/cross-appellees.

John H. Thompson, IV, of Earle and Thompson, St. Petersburg, for appellee/cross-appellant.

BARFIELD, Judge.

In this appeal and cross-appeal from a workers' compensation order, we affirm the award of temporary total disability (TTD) benefits from May 1, 1986, but reverse the denial of TTD benefits from January 25, 1986, to that date.

The claimant injured his lower back at work in November 1984. Tests indicated degenerative disc disease and a possible herniated disc, but his doctors concluded that a lumbar myelogram showed no herniated disc or spinal stenosis ¹ and treated his back injury conservatively.

Dr. Saenger, an orthopedic surgeon who examined him at the request of the carrier, found he had reached maximum medical improvement (MMI) by October 1985 with no evidence of nerve root compression or permanent disability. He was evaluated for Social Security disability on November 19 by Dr. Owen, another orthopedic surgeon. On November 20, the carrier's adjuster informed him that his request for chiropractic care was denied and that further medical treatment was terminated, based on Dr. Saenger's report. Temporary total disability benefits, which had been paid since the 1984 accident, were discontinued on January 24, 1986.

On his own, the claimant then returned to Dr. Owen, who found no change in his condition and prescribed pain medication and a lumbar corset. He was referred by the oncologist treating his terminally ill wife to Dr. Jarrett, an orthopedic surgeon, who examined him on May 1, suspected a herniated disc, and recommended a myelogram. The claimant called the insurance agent who handled workers' compensation insurance for the employer, who in turn contacted the carrier, but the request for continued medical care was ultimately denied. He nevertheless underwent the myelogram, which indicated a herniated disc. After getting a second opinion from Dr. Spencer, Dr. Jarrett performed a laminectomy.

In his deposition shortly before the hearing, Dr. Jarrett testified that the calcified herniated disc which he found at L5-S1 "had been there for a while" and was causally related to the industrial accident which had aggravated the claimant's pre-existing degenerative disc disease. He noted that the current CT scan was essentially the same as the 1984 scan and that ankle reflex problems (which the claimant had exhibited since after the accident) can be caused by a herniated disc. He testified that the claimant was unable to "stay up" for half of a day and could not have returned to work since he began treating him, and that if the claimant's symptoms had been the same prior to the time he first saw him, his opinion "would be the same." He opined that if Dr. Saenger had continued to treat the claimant, "he probably would have done a laminectomy sooner or later."

Dr. Saenger admitted that decreased ankle reflexes are a sign of nerve compromise, that the 1984 CT scan had indicated nerve compression, that he had seen evidence of a herniated disc, and that the 1984 injury could exacerbate a previously...