Bradley Const. v. White

• Decision Date: 09 October 1984
• Docket Number: No. AX-125,AX-125
• Citation: 457 So.2d 547
• Parties: BRADLEY CONSTRUCTION and Southeastern Fire Insurance, Appellants, v. Phillip WHITE, Appellee.
• Court: Florida District Court of Appeals

Page 547

457 So.2d 547

BRADLEY CONSTRUCTION and Southeastern Fire Insurance, Appellants, v. Phillip WHITE, Appellee.

No. AX-125.

District Court of Appeal of Florida First District.

Oct. 9, 1984.

Richard H. Weisberg and John E. McLain, III of Cooper, Rissman, Weisberg & Jeffery, P.A., Orlando, for appellants.

James M. Hess of Driscoll, Langston, Kane & Hess, P.A., Orlando, for appellee.

SMITH, Judge.

The employer/carrier (E/C) challenge two orders of the deputy commissioner issued below. The first order granted the claimant's request that the E/C pay for chiropractic treatment received by claimant in lieu of treatment offered by two physicians authorized by the E/C. The second awarded claimant temporary total disability benefits (TTD) for the period of time claimant was under the chiropractor's care. We affirm.

The claimant suffered a compensable injury, initially diagnosed as a strain of the lumbar region of his back, on December 23, 1982. He was examined at Brookwood Community Hospital in Orlando, Florida, this examination producing essentially normal results. Accordingly, claimant was prescribed a muscle relaxant, Robaxin. Receiving no relief from this treatment, he was referred to Dr. Arslanian in January 1983. Dr. Arslanian reported that the results of his physical and x-ray examinations of claimant were either negative or revealed no significant abnormalities. Consequently, Dr. Arslanian diagnosed claimant's injury as mild paravertebral muscle inflammation, and prescribed a correspondingly mild muscle relaxant, Flexeril. Dr. Arslanian subsequently re-examined claimant on January 17, 1983, and found claimant capable of a full range of motion, flexion, extension, and lateral bending and rotation. In spite of these apparently normal objective findings, claimant continued to voice subjective complaints of pain. For this reason, Dr. Arslanian prescribed Norflex, plus increased rest.

Claimant was again examined by Dr. Arslanian on two separate occasions in February 1983. The results of these examinations as reported by Dr. Arslanian were again unremarkable. At this point, Dr. Arslanian was unable to explain the variance between his objective clinical findings and claimant's subjective complaints of pain, nor was he able to suggest an effective future treatment program. Dr. Arslanian did feel that the claimant was at that time capable of returning to his former job. Even so, Dr. Arslanian requested a second independent medical examination, which was subsequently performed by Dr. Bourguignon on March 24, 1983. Dr. Bourguignon reported that his examination revealed no objective abnormalities. He diagnosed claimant's injury as a pulled muscle of the lumbar spine. Dr. Bourguignon's suggested treatment was two weeks of physical therapy. Dr. Bourguignon stated that he felt that the claimant had been capable of returning to his prior work as of the March 24, 1983 examination.

Claimant was re-examined by Dr. Arslanian on April 25, 1983, who again interpreted the results of his testing of claimant as being within expected norms. As a result of his continued negative objective findings, Dr. Arslanian persuaded claimant to undergo a thermogram test, which was performed on May 5, 1983. Dr. Arslanian reported that the thermogram test results revealed possible nerve root irritation, which he stated is sometimes indicative of soft tissue injury. Since the testing physician stated that the thermogram results did not meet strict criteria for abnormality, Dr. Arslanian interpreted the results as supporting his initial diagnosis as to the extent of claimant's injury. Dr. Arslanian further felt that the claimant had not been making a good faith attempt to follow Dr. Arslanian's treatment plan. As a result, Dr. Arslanian released claimant from his care on June 1, 1983, because he thought it would be futile to attempt to follow the claimant's progress in the future. At this time, Dr. Arslanian testified that he felt that the claimant had reached maximum medical improvement (MMI) and therefore was capable of returning to his prior job.

Claimant, however, continued to complain of pain, and therefore requested, and was granted, a hearing before the deputy commissioner, held August 17, 1983, to request chiropractic treatment. The E/C objected, pointing out that claimant had already been treated by two board-certified physicians who had discharged him from treatment and pronounced him able to return to work. Following the hearing the deputy commissioner, by order dated August 23, 1983, ordered the E/C to provide claimant a chiropractic examination and, if found medically necessary by the examining chiropractor, a maximum of 60 days of subsequent chiropractic treatment.

Claimant was examined by Dr. Exum and underwent treatment for a period of six weeks. Dr. Exum's examination revealed a restricted range of motion in the right lateral flexion of the claimant's cervical and lumbar spine regions. He interpreted x-rays of claimant's injured area as indicating a posterior displacement of the fifth lumbar vertebra and a lateral flexion misalignment at the L-5 lumbar region. Dr. Exum diagnosed claimant as suffering from a misalignment of the L- 4/5 vertebra, with accompanying radiculitis, with a secondary diagnosis of sprain/strain complex of the cervical spine with accompanying misalignment. Dr. Exum opined that the claimant had reached MMI on October 3, 1983, and that although claimant, while under Dr. Exum's treatment, had not been capable of performing his previous job-related duties, claimant could "probably" have performed less strenuous work activities. Dr. Exum did not testify whether or not he had so informed claimant of claimant's presumed residual capacity for sedentary-type work activities.

As noted above, there are two orders before us for review. The first, dated August 23, 1983, required the E/C to provide claimant a chiropractic examination, as well as treatment, if necessary. The second order, dated December 22, 1983, granted claimant's request for TTD benefits for the period between August 24, 1983, and October 3, 1983, the time claimant was under the care of Dr. Exum, as well as medical expenses, costs, and attorney's fees. The deputy commissioner specifically credited the opinion of Dr. Exum that the claimant had been incapable of working between August 24 and October 3, 1983. While the deputy commissioner noted the contrary opinions of Drs. Arslanian and Bourguignon, he pointed out that neither physician had treated claimant since June 1983, and thus they would not possess knowledge of claimant's impairments for the contested time period.

The E/C's challenge to the deputy's August 23, 1983, order is based on the judicial gloss given to Section 440.13(1), Florida Statutes (1981), which section provides that an employer shall furnish to an injured employee remedial treatment for such period as the nature of the employee's injury or the process of recovery requires. The E/C points to cases such as Heller Brothers v. Avans, 414 So.2d 1191 (Fla. 1st DCA 1982), which hold that it is error for a deputy to require an E/C to pay for medical examinations and/or treatment where there exists no conflict in the medical evidence of record. The E/C further relies upon decisional language indicating that the rule is not altered by a claimant's subjective complaints of pain; since a mere subjective assertion on a claimant's part cannot create conflict in the medical evidence. Amoco Container Co. v. Singh, 418 So.2d 395 (Fla. 1st DCA 1982), citing K-Mart Corporation v. Nasoni, 377 So.2d 821 (Fla. 1st DCA 1979). Here, the E/C assert, claimant was treated by two board-certified physicians who both released claimant to work as of June 1983, with no restrictions and a finding that claimant suffered from no permanent impairments. We find that the decisions relied upon by the E/C do not mandate reversal here.

Heller Brothers and Nasoni are both distinguishable from the case at bar by the fact that in both of those cases this court found that there were no allegations that the authorized treatment there complained of was inadequate or otherwise inappropriate. Here, on the other hand, the inadequacy of the treatment offered by the E/C was precisely what claimant was contesting. The claimant was not seeking merely additional care in the same type of treatment regime, cf., Commercial Carriers, Inc. v. Porter, 424 So.2d 155 (Fla. 1st DCA 1982), but rather a new mode of treatment altogether. Claimant's perception of the need to seek alternative care was undoubtedly reinforced by Dr. Arslanian's release of claimant from his treatment program in June of 1983, based on Dr. Arslanian's belief that continuing treatment would be futile. In such circumstances, as we acknowledged in Sears, Roebuck and Company v. Viera, 440 So.2d 49, 51 (Fla. 1st DCA 1983) (quoting from the deputy commissioner), Section 440.12(2), Florida Statutes (1981), requires an E/C whose authorized physicians are objected to by a claimant who seeks alternative treatment

to either select a physician to provide such care to the claimant or...