D'Andrea v. Wal-Mart Stores, Inc., WAL-MART

• Decision Date: 17 June 1998
• Docket Number: No. 97-2472,WAL-MART,97-2472
• Citation: 711 So.2d 1373
• Court: Florida District Court of Appeals
• Parties: 23 Fla. L. Weekly D1491 Patricia D'ANDREA, v.STORES, INC., and Claims Management, Inc., Appellees.

Page 1373

711 So.2d 1373

23 Fla. L. Weekly D1491

Patricia D'ANDREA, v. WAL-MART STORES, INC., and Claims Management, Inc., Appellees.

No. 97-2472.

District Court of Appeal of Florida First District.

June 17, 1998.

Clark W. Berry, Fort Myers; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.

Paul L. Westcott of Hurley, Rogner, Miller, Cox & Waranch, P.A., Fort Pierce, for Appellees.

PER CURIAM.

In this appeal from a final workers' compensation order, claimant-appellant asserts that the judge of compensation claims (JCC) erred in 1) deciding that she was at overall maximum medical improvement (MMI) as of June 26, 1996, 2) denying her claim for additional temporary total or partial disability (TTD or TPD) benefits, and 3) denying her claim for interest on the untimely paid benefits. Because the record lacks competent, substantial evidence (CSE) to support the MMI date and the denial of interest on the late payments, we reverse as to those issues, but we affirm the denial of additional TTD or TPD benefits.

Claimant suffered a compensable back injury on February 5, 1996, and her treating physician, Dr. Bakhtian, a neurosurgeon, released her to return to work on June 26, 1996. At the same time, Dr. Bakhtian referred claimant to Dr. Roggow, a physiatrist who examined her on September 5, 1996. Although Dr. Bakhtian's records do not indicate that claimant was at MMI on June 26, 1996, he subsequently testified, from his perspective as a neurosurgeon, that claimant was at MMI as of June 26.

Dr. Bakhtian's testimony cannot support the JCC's finding of a June 26, 1996, MMI date. Reaching MMI from a neurological point of view is not overall MMI, especially since a referral was made to a physiatrist. See, for example, Brown v. Lifetime Florida Steps, 650 So.2d 150 (Fla. 1st DCA 1995), wherein the claimant's neurosurgeon opined that the claimant was at MMI as of May 24, 1993; thereupon she released him from her care and referred him to a physiatrist. When the physiatrist saw the claimant in July 1993, she considered that he was not then at MMI and prescribed physical therapy. The physiatrist subsequently deemed the claimant was at MMI on October 5, 1993. Based on this evidence, our court reversed an order finding MMI as of May 24, 1993, noting that the neurosurgeon had confined her MMI opinion to her specialty, and when her limited opinion was coupled with a contemporaneous referral to a physiatrist, it could not be said that the claimant was at overall MMI as of May 24. The same analysis applies here.

There is, however, clear, explicit evidence of MMI as of September 5, 1996, in the form of Dr. Roggow's deposition, wherein she testified that claimant was at MMI when she first saw her. Because our vantage point is not inferior to that of the JCC in assessing deposition evidence, see McCabe v. Bechtel Power Corp., 510 So.2d 1056, 1059 (Fla. 1st DCA 1987), we direct the JCC on remand to modify his finding of MMI by substituting the date of September 5, 1996, for same.

In reaching our decision, we reject claimant's argument that she is not at overall MMI, based on the testimony of Dr. Frey, a chiropractor who examined her on February 26, 1997. Although Dr. Frey stated that claimant was not at chiropractic MMI at that time, and he recommended chiropractic treatment three times a week for four to six weeks, the JCC refused to accept his opinion because it failed to satisfy the legal standard necessary to preclude an MMI finding. There is CSE to support the JCC's reason for rejecting Dr. Frey's opinion in that Dr. Frey had testified that he did not know that chiropractic...