Alford v. G. Pierce Woods Memorial Hosp., 91-3297

• Decision Date: 07 July 1993
• Docket Number: No. 91-3297,91-3297
• Parties: 18 Fla. L. Week. D1579 Jessie ALFORD, Appellant, v. G. PIERCE WOODS MEMORIAL HOSPITAL and State of Florida/Division of Risk Management, Appellees.
• Court: Florida District Court of Appeals

Page 1380

621 So.2d 1380

18 Fla. L. Week. D1579

Jessie ALFORD, Appellant, v. G. PIERCE WOODS MEMORIAL HOSPITAL and State of

Florida/Division of Risk Management, Appellees.

No. 91-3297.

District Court of Appeal of Florida,

First District.

July 7, 1993.

Rehearing Denied Aug. 24, 1993.

Brian O. Sutter, Port Charlotte, Bill McCabe, Longwood, for appellant.

Michael F. Tew of Tew & Truitt, P.A., Fort Myers, for appellees.

WEBSTER, Judge.

In this workers' compensation case, claimant seeks review of an order which denied her claim seeking authorization of chiropractic treatment. We conclude that the record contains competent substantial evidence to support the order. Therefore, we affirm.

It is undisputed that claimant sustained injuries "arising out of and in the course of employment" on two occasions. In December 1988, claimant injured her neck, back, shoulders, knee and left elbow. In September 1989, after claimant had been released to return to full-duty work, she injured her fingers.

Since her first injuries, claimant has been treated by Dr. Howard Kessler, a board-certified orthopedic surgeon. Dr. Kessler has diagnosed claimant as suffering from "cervical and lumbar spondylosis or arthritis." He opined that claimant had suffered from "a pre-existing arthritic condition which was exacerbated by her work related injury." According to Dr. Kessler, because of her arthritis, claimant was not going to "get better." She would continue to experience good periods and bad periods, as she had for some time. Dr. Kessler said that there was little that he could offer claimant in the way of new treatment. He had prescribed physical therapy (which had included traction, heat, ultrasound and electrical stimulation) for some time, for temporary relief of claimant's symptoms; and recommended that claimant continue to receive physical therapy "as needed."

Claimant testified that the physical therapy prescribed by Dr. Kessler provided only temporary relief from her symptoms. She said that she wanted to be treated by Dr. Louis Kirschner, a chiropractor, because her husband had been treated successfully by Dr. Kirschner, and she felt that Dr. Kirschner could achieve similar results with her.

Dr. Kirschner testified that he is a chiropractic physician. Based upon his examination of claimant, Dr. Kirschner diagnosed claimant as suffering from cervical neuralgia, cervical myofascitis, a strain or sprain of the thoracic spine, a lumbar strain or sprain, sacroiliac disorder and temporal mandibular joint pain-dysfunction syndrome. Based upon his diagnosis, Dr. Kirschner concluded that claimant "was a candidate for chiropractic therapy ... [b]asically adjustments or manipulations to correct the osseous disrelationships of her entire spine and sacroiliac joints." In addition, he said that he would use "traction in the low back," "[e]xercises" and "some electrical stimulation." He opined that "chiropractic treatment would be beneficial to [claimant] because the key thing here is to get the vertebrae that are out of place, or what we call subluxated, back into their proper respective position and functioning again." He saw nothing about claimant's condition to suggest that it would be inappropriate to treat her in such a way.

Over objection that he was unqualified to render such opinions, Dr. Kessler testified that he tried to "read a lot of chiropractic literature"; that he was "familiar with the general nature of treatment modalities that a chiropractor ... offers"; and that he had "had training in some forms of manipulation." He testified that, within a reasonable degree of medical probability, it was his opinion that, while "manipulation in the proper hands in the proper situation is beneficial," in claimant's case manipulation might well "be harmful for her." He explained that "arthritic joints which would be placed through a motion that they would not normally be placed through in some respects would be like going through the trauma or the initial accident that the patient describes. It could increase the symptoms." He also testified that the treatments other than manipulation which were normally used in the practice of chiropractic were not significantly different from those already available to claimant through physical therapy.

The judge of compensation claims concluded that Dr. Kirschner should not be authorized because (1) based upon Dr. Kessler's testimony, manipulation would be inappropriate, given claimant's condition; (2) other than manipulation, claimant was already receiving essentially the same treatment that Dr. Kirschner recommended; and (3) claimant's request was "motivated by unrealistic expectations," because she believed that chiropractic treatment would result in "a cure." Claimant's principal argument on appeal is that the conclusions of the judge of compensation claims are not supported by competent substantial evidence because Dr. Kessler, an orthopedic surgeon, was not qualified to render opinions on the subject of the appropriateness of chiropractic treatment; therefore, Dr. Kirschner's testimony that chiropractic treatment was appropriate was uncontroverted. We are unable to accept claimant's argument.

Section 440.13(2)(a), Florida Statutes (1991), requires the employer to "furnish to the employee such medically necessary remedial treatment, care, and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require ..." (emphasis added). Section 440.13(1)(d), Florida Statutes (1991), defines "medically necessary," in relevant part, as follows:

"Medically necessary" means any service or supply used to identify or treat an illness or injury which is appropriate to the patient's diagnosis, consistent with the location of service and with the level of care provided. The service should be widely accepted by the practicing peer group, should be based on scientific criteria, and should be determined to be reasonably safe. ...

(Emphasis added.) While it may well be true, as claimant argues, that in the majority of cases only a similar "health care provider" will possess the qualifications necessary to permit him or her to testify regarding whether requested care or treatment is "medically necessary," that is not so in this case.

The Florida Evidence Code applies to workers' compensation proceedings. See, e.g., Martin Marietta Corp. v. Roop, 566 So.2d 40 (Fla. 1st DCA 1990); Odom v. Wekiva Concrete Products, 443 So.2d 331 (Fla. 1st DCA 1983). This includes section 90.702, which relates to testimony by experts. As a general rule, "[t]he determination of a witness's qualifications to express an expert opinion is peculiarly within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error." Ramirez v. State, 542 So.2d 352, 355 (Fla.1989). See also Charles W. Ehrhardt, Florida Evidence Sec. 702.1 at 469 (1992 ed.). We fail to see why a different standard should be applied in workers' compensation cases.

There can be no question but that, as an orthopedic surgeon, Dr. Kessler possesses the qualifications necessary to permit him to offer opinions regarding the effect of arthritis upon a person's joints in general, and spine in particular. Likewise, there can be little question regarding Dr. Kessler's qualifications to offer opinions as to the likely effect of unusual or abnormal movement of the spine upon one suffering from arthritis. Such opinions are clearly based upon his knowledge acquired as an orthopedic surgeon. The only real question presented is whether Dr. Kessler possesses enough knowledge about chiropractic manipulation to be able to render an opinion as to the effect of such movement upon the spine of someone like claimant, who is suffering from arthritis. Dr. Kessler testified that he tried to "read a lot of chiropractic literature"; that he was "familiar with the general nature of treatment modalities that a chiropractor ... offers"; and that he had "had training in some forms of manipulation." We believe that such testimony was sufficient to permit the judge of compensation claims to conclude that Dr. Kessler knew enough about chiropractic manipulation to opine whether, from a medical standpoint, such movement of the spine would be likely to help or to harm claimant. In fact, we fail to see any meaningful distinction between such testimony and testimony that, within a reasonable degree of medical probability, a particular type of unusual or abnormal movement, such as might occur during a fall or an auto accident, would be likely to cause damage to the spine, or a cervical or lumbar sprain or strain. Clearly, an orthopedic surgeon would be permitted to offer the latter opinions.

Finally, we note that, but for the fact that this is a workers' compensation case, the operative facts are virtually indistinguishable from those in Van Sickle v. Allstate Ins. Co., 503 So.2d 1288 (Fla. 5th DCA 1987). In Van Sickle, the plaintiff sued her insurer when it refused to pay for certain chiropractic treatments. The issue tried was whether the treatments had been " 'reasonable and necessary' " (id. at 1288 n. 2) regarding injuries allegedly sustained in an auto accident. At trial, plaintiff objected to a question posed by the insurer to its expert witness, who was an orthopedic surgeon, as to "whether or not the chiropractor's spinal and neck manipulations might worsen [plaintiff's] condition." Id. at 1290. Initially, the trial judge sustained the objection. However, after the expert testified that he had some familiarity with manipulation based upon a course he had taken and some observation during residency, the trial judge allowed the expert to testify that "he was fearful of spinal manipulation being done on persons, such as [plaintiff], who had arthritic or other degenerative problems." Id.

On appeal by plaintiff, the court affirmed. The majority explained its decision as follows:

An orthopedic...