Coplin v. State, Dept. of Health and Rehabilitative Services, 92-1560

• Citation: 627 So.2d 1282
• Decision Date: 09 December 1993
• Docket Number: No. 92-1560,92-1560
• Parties: 18 Fla. L. Weekly D2609 Peggy COPLIN, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, AAS and Risk Management, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1282

627 So.2d 1282

18 Fla. L. Weekly D2609

Peggy COPLIN, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE

SERVICES, AAS and Risk Management, Appellees.

No. 92-1560.

District Court of Appeal of Florida,

First District.

Dec. 9, 1993.

Debra H. Pierce of Lloyd, Hoskins & Pierce, P.A., Fort Pierce, for appellant.

Kennie L. Edwards of Beisler & Beisler, West Palm Beach, for appellees.

PER CURIAM.

In this worker's compensation appeal, claimant Peggy Coplin appeals the order of the Judge of Compensation Claims (JCC) denying her claim for further medical goods and services and denying her claim for wage loss benefits from December 1, 1988 through August 14, 1989. We affirm in part, reverse in part and remand.

Claimant raises three issues on appeal: (1) whether the JCC erred in denying wage loss benefits due to the untimely filing of the claim; (2) whether the JCC erred in determining that claimant was not entitled to wage loss benefits because claimant was not assigned a permanent impairment rating in accordance with the American Medical Association (AMA) Guides; (3) whether the JCC erred in denying authorization for medical goods and water therapy on the ground that claimant had attained maximum medical improvement without permanent impairment. Having carefully considered each of the issues we find no merit to appellant's arguments with respect to the second and third issues and affirm the JCC's order as it pertains to these issues. The first issue, however, merits discussion.

While working for appellee Department of Health and Rehabilitative Services (HRS), claimant sustained two industrial accidents on a rainy day, July 7, 1988. While exiting the building claimant descended three or four steps and slipped, falling on her hands and knees. Claimant went back into the building and advised a secretary that she had fallen. Upon exiting the building a second time, claimant again fell on the same steps. Claimant fell on her posterior with her left leg bent back and her right leg extended forward. Claimant was off of work for two or three weeks because of these falls. Claimant received workers' compensation benefits during these two or three weeks and was treated by Dr. Sullivan, an orthopedic surgeon. Claimant returned to work for about a week and a half, during which time her knees were still swollen and she experienced pain and limping. After the week and a half of work, claimant left work again to have back surgery related to a prior automobile accident.

In August 1988, claimant left for New Jersey to have back surgery. Claimant received post surgery treatment from Dr. Sullivan who did not allow claimant to return to work until December 1988. Claimant worked only one day and found that she could not perform her job. Claimant felt forced to resign at that time. Claimant's supervisor testified that claimant stated that she resigned because she could not perform her job duties after coming back from surgery. The supervisor further stated that claimant never mentioned, either orally or in her letter of resignation, that her resignation was in any way related to her knee injury. Claimant, herself, admitted that she could not work between August and December 1988, because of her back condition.

Claimant tried working as a substitute teacher but found that she could not do that either. Claimant searched for work to no avail. Claimant then sought vocational rehabilitation assistance at a community college. Claimant found work with the Census Bureau from May 1989 through June 1989. This position, too, was difficult for claimant who had difficulty getting in and out of cars. Because of this difficulty, claimant called the adjuster in her worker's compensation claim seeking further medical attention, since Dr. Sullivan was leaving town. The adjuster authorized Dr. Davidson, an orthopedic surgeon, but made no mention of wage loss and temporary partial benefits.

Claimant testified that her back improved dramatically after surgery, but her knees are even more painful since she stopped taking medication for her back. Dr. Sullivan treated claimant for her knee problems and Dr. Davidson prescribed physical therapy. Claimant testified that her left kneecap moves, pops and swells, that she sometimes has to walk stairs sideways, and that she limps. Claimant said her low back is affected by her awkward gait, and that her knee exercises also cause flare-ups in her low back.

After treating with Dr. Sullivan and Dr. Davidson, claimant realized that she needed more education in order to improve her job opportunities. Claimant advised the adjuster that she would be attending Temple University in Philadelphia and needed to see a doctor in that area. The e/c authorized Dr. Kain. The adjuster did not inform claimant of the need to file temporary partial or wage loss forms until February 1990.

Dr. Davidson saw claimant on three occasions between 6/21/89 and 8/15/89. Dr. Davidson diagnosed patellar femoral syndrome although a diagnosis of chondromalacia would also be consistent with claimant's symptoms. The difference between the two diagnoses is that chondromalacia implies actual damage to the sliding surface of the kneecap, whereas patellar femoral syndrome does not. An accurate diagnosis, however, can be determined only by operating on the patient. Dr. Davidson detected crepitus ¹ in each kneecap on the second visit, but felt this was not abnormal. Davidson also noted a degree of "catching" of the kneecap, attributable either to "maltracking" or roughness in the back of the kneecap. Dr. Davidson opined that claimant had reached MMI without any permanent impairment pursuant to the AMA Guides on August 15, 1989.

Dr. Kain first saw claimant in October 1989. He diagnosed chondromalacia of the left patella. Kain thought claimant had a problem with the articular surface of the patella or the anterior surface of the distal femur. This opinion was based on Kain's observation of crepitus and other symptoms. Kain also noted atrophy of the quadriceps which he felt was attributable to the chondromalacia (claimant favoring one leg over the other). Dr. Kain prescribed various modes of exercise, including stationary bicycle, water therapy and light weight lifting. Dr. Kain also opined that claimant's condition could degenerate into traumatic arthritis in the knees.

Dr. Kain examined claimant just prior to his deposition of July 10, 1990. He again diagnosed crepitus. Pressing the kneecap against the femur bone also caused pain. Dr. Kain felt claimant had attained MMI, but recommended water therapy, stationary bicycle and quadriceps weight training. Kain opined that claimant did have a permanent impairment, particularly of the left knee, but could not state what the percentage of impairment might be because such ratings are not emphasized under Pennsylvania's workers' compensation law.

As to the claim for wage loss benefits from December 1, 1988 through August 14, 1989, the JCC found that claimant resigned from her employment because of her unrelated back problem, and the e/c was therefore not placed on notice of a claim or need for further wage loss information until a claim was filed in November 1989. The JCC found that claimant's wage loss request forms were not timely filed and denied the claim on that basis.

The question whether the e/c was relieved of its duty to inform claimant of her job search obligations due to the circumstances surrounding her resignation is a close one. The e/c was well aware that claimant was being treated by Dr. Sullivan for her compensable knee injury. Nonetheless, the e/c justifiably believed that claimant's resignation was due to her unrelated back injury. When claimant returned to Florida from her back surgery in New Jersey, claimant received follow up treatment by Dr. Sullivan for her back condition. Thus, while Dr. Sullivan was treating claimant for her noncompensable back injury he was apparently still authorized to treat her compensable knee condition. Claimant, herself, testified that she was undergoing physical therapy for both her knee and her back during this period. When claimant contacted the e/c in June of 1989 to request authorization of Dr. Davidson (because Dr. Sullivan was leaving town), the e/c knew or should have known...