Days Inn/Days Suites v. Thomas, 92-00461

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BOOTH
• Citation: 623 So.2d 529
• Parties: 18 Fla. L. Week. D1577 DAYS INN/DAYS SUITES and Continental Loss Adjusting Services, Appellants, v. Marie E. THOMAS, Appellee.
• Docket Number: No. 92-00461,92-00461
• Decision Date: 07 July 1993

Page 529

623 So.2d 529 18 Fla. L. Week. D1577 DAYS INN/DAYS SUITES and Continental Loss Adjusting
Services, Appellants,
v.
Marie E. THOMAS, Appellee. No. 92-00461. District Court of Appeal of Florida,
First District. July 7, 1993.
Rehearing Denied Sept. 28, 1993.

Page 530

An Appeal from an Order of Judge of Compensation Claims Charles C. Hurt.

Pamela Craig, Whittaker, Stump, Webster & Miller, P.A., Orlando, for appellants.

Michael B. Murphy, Winter Haven, and Bill McCabe, Longwood, for appellee.

BOOTH, Judge.

This cause is before us on appeal from an order of the judge of compensation claims (JCC). The employer and carrier (E/C) contend, inter alia, that the JCC erred in accepting the testimony of claimant's treating chiropractor and the testimony of a physiatrist ¹ over that of two orthopedic physicians.

Claimant Marie E. Thomas is a 37-year-old Haitian woman who does not, with the exception of a few words, speak, read, or write English. On January 20, 1990, she twisted her back while working as a maid at a Days Inn. She came under the care of Dr. Smith, a chiropractor, and Dr. Smith became claimant's primary treating physician. Dr. Smith's diagnoses included lumbar sprain/strain with "lumbar segmental disfunction" and "lumbar neuralgia" and thoracic sprain/strain with "thoracic segmental disfunction." Claimant showed initial progress but did not significantly improve after April 1990. An MRI showed minimal degenerative changes at L3-4, but was essentially normal for a person of claimant's age.

Dr. Smith referred claimant to Dr. Lenhart, a physiatrist. Dr. Lenhart performed, inter alia, a thermogram. ² Dr. Lenhart read

Page 531

the thermogram findings as consistent with lumbosacral muscle spasm and probable L3-4 nerve fiber irritation.

Drs. Smith and Lenhart believed claimant to be temporarily totally disabled. Dr. Smith imposed "basic low back restrictions ... such as no bending, lifting, twisting, or any other activities which may aggravate her symptoms." For more specific restrictions, Dr. Smith recommended an orthopedic functional capacity evaluation. Dr. Lenhart restricted claimant from lifting, pushing, pulling, bending, stooping, or twisting movements. Dr. Smith recommended that Dr. Lenhart be authorized, but the E/C declined to authorize Dr. Lenhart. Dr. Smith believed that in the absence of care from a physiatrist, claimant reached maximum medical improvement on January 3, 1991, with a five-percent permanent partial impairment. Dr. Smith had not, by the time of the merits hearing, released claimant to return to work.

The E/C, on July 30, 1990, referred claimant to Dr. Mahan, an orthopedic physician, for an independent medical examination. The report indicates that during her visit with Dr. Mahan, claimant complained that she experienced pain at all times, whether she was standing, sitting, lying down, walking, or sleeping. Dr. Mahan found no objective basis for claimant's subjective complaints. Claimant's only abnormality was a loss of water content at the L3-4 disc, shown by the MRI, and Dr. Mahan believed this to be a preexisting condition. Dr. Mahan believed that claimant was "either outright lying" or "converting psychological problems into somatic complaints." Dr. Mahan believed that claimant had fully recovered from her sprain and could return to her full work activities without restriction.

The E/C referred...