D'Amico v. Westinghouse Elec. Corp.

• Decision Date: 08 June 1988
• Docket Number: No. 87-1346,87-1346
• Citation: 13 Fla. L. Weekly 1365,527 So.2d 855
• Parties: 13 Fla. L. Weekly 1365 Patricia D'AMICO, Appellant, v. WESTINGHOUSE ELECTRIC CORP. and Gates, McDonald, Appellees.
• Court: Florida District Court of Appeals

Page 855

527 So.2d 855

13 Fla. L. Weekly 1365

Patricia D'AMICO, Appellant, v. WESTINGHOUSE ELECTRIC CORP. and Gates, McDonald, Appellees.

No. 87-1346.

District Court of Appeal of Florida,

First District.

June 8, 1988.

Roger W. Plata, of Law Offices of Roger W. Plata & Associates, P.A., St. Petersburg, for appellant.

Raymond T. Elligett, Jr., of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees.

WIGGINTON, Judge.

In this workers' compensation appeal, the claimant challenges the deputy commissioner's denial of her claim for treatment of her temporomandibular joint dysfunction (TMJ) by Dr. Ware. Four points are raised on appeal. Under the first point, claimant argues that the deputy erred by failing to apply the doctrine of more logical cause. In point II, claimant alternatively contends that the deputy erred in failing to find that her TMJ disorder created a hinderance to treatment of her compensable injury. Under points III and IV, claimant maintains the deputy abused his discretion by rejecting unrefuted and uncontradicted medical testimony and that his order was not supported by competent and substantial evidence. We reverse.

Claimant injured her lower back on August 21, 1985, for which she received treatment by authorized physician Dr. Wallace. On December 29, 1986, Dr. Wallace reported strong findings of depression and referred claimant to psychiatrist, Dr. O'Bryan.

Dr. O'Bryan began evaluation and treatment on January 9, 1987. His subsequent report confirmed severe symptoms of depression, and he began biofeedback sessions on January 20. At that time, he noticed a disorder in claimant's temporomandibular joint and suggested the need for her to return to her dentist for treatment. In his report of January 28, Dr. O'Bryan wrote that he requested authorization for the TMJ difficulty but was refused by the carrier. He stated that withholding such authorization would make it necessary for him to suspend biofeedback treatment. Dr. O'Bryan reduced the frequency of claimant's biofeedback sessions on February 27, and on March 6, reported that without the necessary TMJ splint suggested by Dr. Ware, claimant would be unable to achieve maximum progress in biofeedback.

Meanwhile, on February 9, claimant was examined by Dr. Ware whose practice is limited to TMJ disorders. Dr. Ware diagnosed claimant as having an articular cartilage disorder caused by trauma and formulated a treatment plan which included construction and use of a TMJ appliance with frequent adjustments.

Due to the obstacle in psychiatric progress caused by failure of authorization for treatment of claimant's TMJ disorder, a claim was filed requesting, inter alia, treatment by Dr. Ware.

In their depositions, both Dr. O'Bryan and Dr. Ware testified that claimant's TMJ disorder was causally related to the industrial accident. Dr. O'Bryan testified that "such a stressful event, an injury could, in fact, elevate general tension and precipitate a TMJ disorder...." He stated that claimant's case presented such within reasonable psychiatric probability.

Additionally, Dr. Ware testified, "[I]t is my opinion that [claimant's] T.M.J. disorder is causally related to the injury of August 21, 1985, within a reasonable degree of medical probability." Dr. Ware stated that TMJ can be aggravated or caused by a person trying to compensate for another injury. He also opined that claimant's original muscle activity that resulted in the back injury had thrown out her temporomandibular joint causing a slipped disc in her jaw with the resulting disorder.

Although claimant had not complained of headaches until seventeen months following the compensable accident, both Dr. O'Bryan and Dr. Ware opined that a person may suffer from headaches associated with TMJ but not complain of or realize their existence due to the pain and tension originating from other parts of the body. Specifically, Dr. Ware testified that some people may proceed for a year or longer without developing problems or symptoms of TMJ disorder.

Despite the foregoing evidence, the deputy entered an order denying and dismissing the claim with prejudice emphasizing the fact that claimant had not complained of any headache problems until after she had seen Dr. Ware and Dr. O'Bryan. He rejected the opinions of Doctors Ware and O'Bryan because of that lapse of time and due to his conclusion that the nature of the doctors' opinions on causal relationship was speculative. The deputy also rejected the alternative position of claimant that the treatment for the disorder was necessary in order to properly treat the injury from the industrial accident. In doing so, the deputy distinguished the case of Rolf Brothers of Florida v. Spodris, 451 So.2d 947 (Fla. 1st DCA 1984). We must disagree on all points.

The medical evidence presented by claimant overwhelmingly establishes a...