Delgado v. Omni Hotel, 93-2909

• Decision Date: 19 October 1994
• Docket Number: No. 93-2909,93-2909
• Citation: 643 So.2d 1185
• Parties: 19 Fla. L. Weekly D2228 Juan DELGADO, Appellant, v. OMNI HOTEL and American International Adjustment Company, Appellees.
• Court: Florida District Court of Appeals

Page 1185

643 So.2d 1185

19 Fla. L. Weekly D2228

Juan DELGADO, Appellant, v. OMNI HOTEL and American International Adjustment Company, Appellees.

No. 93-2909.

District Court of Appeal of Florida First District.

Oct. 19, 1994.

William J. Massey, III, Jacksonville, for appellant.

Mark K. Eckels of Boyd & Jenerette, P.A., Jacksonville, for appellees.

SHIVERS, Senior Judge.

The employee in this workers' compensation case appeals the judge's finding that he reached maximum medical improvement (MMI) on March 20, 1991 and therefore, his denial of temporary partial disability (TPD) benefits beyond that date. After a careful review of the evidence presented at the hearing, we find the judge of compensation claims (JCC) erred and reverse.

The evidence contained in the record indicates that, on February 14, 1991, the claimant slipped and fell while working as a waiter for appellee Omni Hotel, sustaining compensable injuries to both shoulders. On the day following the accident, claimant went to Baptist Hospital Emergency Room and was seen by Dr. William Nibbs. The X-rays were normal, and claimant was given an anti-inflammatory medication.

In March 1991, claimant was seen by Dr. Robert Capitain on referral from Dr. Nibbs, complaining of pain and tenderness in his shoulders and inability to reach behind his back with his right hand. It was Dr. Capitain's opinion at that time that claimant had tendinitis of the shoulders, and he treated claimant with injections of both a local anesthetic and a steroid. Claimant returned to Dr. Capitain on March 14, 1991, complaining of less right shoulder pain, but problems with his left shoulder. A physical exam revealed tenderness in the rotator cuff muscles. Claimant next saw Dr. Capitain on March 20, 1991, at which time he was able to raise both arms over his head and behind his back with minimal pain. Claimant saw Dr. Capitain 11 more times after March 20, 1991, his last visit being on March 23, 1993.

Meanwhile, on March 11, 1992, claimant was given an independent medical examination by orthopedic surgeon William Pujadas. It was then Dr. Pujadas' opinion upon examination that claimant had "bilateral shoulder pain with impingement and possible rotator cuff tear." Dr. Pujadas recommended a course of anti-inflammatory medication and a CT arthrogram of his shoulders, and advised claimant that he would recommend surgery if a rotator cuff tear was found. Dr. Pujadas' March 11, 1992 office notes indicate that "Mr. Delgado, in respect to this, state[d] that he does not wish to have any surgery." Claimant apparently cancelled the first scheduled CT. It was ultimately rescheduled for March 19, 1993, and a diagnostic workup done at Baptist Medical Center on March 24, 1993 confirmed that claimant had complete rotator tears in both shoulders.

In a deposition dated April 20, 1993, Dr. Pujadas testified that claimant had three options: 1) to repair the rotator cuff tears surgically; 2) to undergo arthroscopic decompression of the shoulders to relieve his discomfort; or 3) to "just continue with the exercise program and strengthening of the shoulder musculature." Dr. Pujadas indicated that claimant had chosen to pursue a conservative exercise program, but stated that therapy had not been prescribed for him at that point, and that he had not seen claimant since the CT was performed. When asked whether he felt claimant had reached MMI, Dr. Pujadas testified that he had not, and that, assuming he elected not to have surgery, he would not reach MMI until approximately six to eight weeks after physical therapy was initiated.

In an April 23, 1993 deposition, Dr. Capitain testified that claimant had shown improvement at his March 20, 1991 visit, but that he had "not really" improved since that time. It was Dr. Capitain's opinion, assuming the claimant had elected not to undergo surgery for his rotator cuff tears, that he had reached MMI as of March 20, 1991. On redirect, Dr. Capitain stated that he did not know whether the claimant had completed any type of physical therapy program, and testified that, whether it had been completed or not, "maximum medical improvement to me means that there was no further progress towards resolution of the problem."

The claimant testified at the April 28, 1993 hearing that he was ready to proceed with surgery, but admitted that just three weeks earlier, at his April 8, 1993 deposition, he had not yet decided to have surgery.

In his final order, the JCC accepted Dr. Capitain's testimony that claimant had reached MMI on March 20, 1991, found that both Dr. Pujadas and...