Desmond v. Medic Ayers Nursing Home

• Decision Date: 23 July 1986
• Docket Number: No. BF-250,BF-250
• Citation: 492 So.2d 427,11 Fla. L. Weekly 1612
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 1612 Marjorie E. DESMOND, Appellant, v. MEDIC AYERS NURSING HOME and Brown & Brown Self Insured Services, Appellees.

Page 427

492 So.2d 427

11 Fla. L. Weekly 1612

Marjorie E. DESMOND, Appellant, v. MEDIC AYERS NURSING HOME and Brown & Brown Self Insured Services, Appellees.

No. BF-250.

District Court of Appeal of Florida First District.

July 23, 1986.

Marjorie E. Desmond, pro se.

Paul J. Morgan, of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellees.

ON MOTION FOR REHEARING

JOANOS, Judge.

The employer in this workers' compensation appeal has petitioned for rehearing of our opinion in the above-styled cause, alleging that our decision was based to a substantial degree on a report which was not received into evidence or considered by the deputy commissioner. Our legal holdings in the opinion are not dependent upon the report in question. However, to avoid the possibility that the opinion may cause confusion regarding our consideration of the report of Dr. Sacks, the opinion released on January 20, 1986, is withdrawn and the following opinion is substituted therefor. Accordingly, the motion for rehearing is treated as a motion for clarification, and is granted to the extent that it is addressed in this opinion. In all other respects, the motion is denied.

In this workers' compensation appeal, the claimant Marjorie E. Desmond seeks review of the deputy commissioner's final order which dismisses with prejudice the claimant's request for temporary total disability (TTD) benefits, payment of medical expenses, costs, penalties, interest, and attorney's fees. Claimant alleges the deputy commissioner erred in (1) finding that claimant did not sustain a work-related skin disease, and (2) refusing to accept into evidence a report prepared by Dr. Jeffrey J. Sacks, Acting State Epidemiologist. We reverse.

Claimant was employed as a nursing assistant by Medic Ayers Nursing Home (MANH) from March 8, 1982, until August 29, 1983. As part of her job duties, claimant assisted patients in bathing, dressing, cleaning, and eating.

At the time period relevant to this appeal, i.e., May--August 1983, claimant worked on the red wing of the nursing home, a wing which had a high concentration of patients with staph infection. In June 1983, claimant developed lesions which first appeared in her left groin region. On June 21, 1983, claimant consulted Dr. Hauser, an osteopath who provided care for approximately thirty to forty patients at the nursing home.

During July 1983, claimant's mother-in-law visited the family. During the course of that visit, the mother-in-law developed skin lesions which were subsequently diagnosed by her family physician in Miami as a staph infection. Claimant's husband and five-year-old daughter also suffered an outbreak of skin lesions. Dr. Hauser considered claimant's skin condition to be a tinea, or fungal infection, and prescribed an ointment. Claimant's skin condition improved briefly, and then spread to her right groin area, abdomen, rib cage, and right breast.

In August 1983, claimant notified the nursing director at MANH of her condition, and advised that she was going to Shands Teaching Hospital for a culture. At that point, claimant was convinced that she had a staph infection. The nursing director told claimant that she could not return to work without a medical release. Claimant was treated by Dr. Joseph Shands, obtained the requisite medical release, and returned to work at MANH on August 12 or 13, 1983. As of August 12, 1983, claimant's lesions appeared to be drying and had begun to dissipate.

Up until the time of claimant's initial skin outbreak in June 1983, neither she nor any other member of her immediate family had ever experienced a skin problem. After claimant's husband and daughter had an outbreak of skin eruptions, her husband demanded an explanation. At that point claimant told her husband she had been caring for patients with staph infections. When claimant's husband was apprised of the staph outbreak at the nursing home, he confronted Dr. Hauser about the infections which, seemingly, had spread to claimant's family. Dr. Hauser, in his turn, berated the nursing director at MANH, accusing her of revealing problems pertaining to patient care. On August 29, 1983, claimant's employment with MANH was terminated. The reason given for termination was that claimant had breached patient confidentiality.

Claimant testified that during the first week of September 1983, she continued to have outbreaks of lesions on her body. On September 12, 1983, claimant returned to Dr. Shands for further treatment. Dr. Shands advised that the new outbreak of lesions indicated a contagious stage of the disease and told claimant not to work. Between August and October 1983, Dr. Shands treated claimant's staph infection with three different antibiotics. On October 4, 1983, Dr. Shands provided claimant with a medical release which states: "Mrs. Marjorie Desmond had staphylococcal disease but is now clear of this problem. She is able to work." Subsequently, in December 1983, claimant again returned to Shands for treatment of continued flareups of her skin disease. At that time claimant was told that continued treatment with antibiotics would be advisable only if she broke out in massive lesions.

Dr. Robert Sherertz, assistant professor of medicine and hospital epidemiologist at Shands Teaching Hospital, examined claimant and her husband and daughter on August 14, 1984--a year after claimant had come under the care of Dr. Shands. Dr. Sherertz reviewed claimant's medical records from Dr. Hauser and from Dr. Shands, and a report prepared by Dr. Sacks, State Epidemiologist. In addition to this review of records and the report, Dr. Sherertz discussed claimant's condition and treatment with Dr. Shands, and verified (by telephone) Dr. Sacks's conclusions concerning the 1983 staph epidemic at MANH.

According to Dr. Sherertz, Dr. Hauser, the initial treating physician, failed to perform one of the diagnostic tests indicated in claimant's case. Dr. Hauser did not culture claimant's lesions, and a culture is the appropriate diagnostic procedure when testing for staph. Instead, Dr. Hauser took a scraping, which he subjected to microscopic examination. In addition, Dr. Hauser sent slides to Smith Kline Laboratories for analysis. Neither Dr. Hauser's examination nor the Smith Kline report identified a fungal infection. Despite these test results, Dr. Hauser diagnosed claimant's condition as a fungal infection. Dr. Sherertz stated that a physician cannot look at a vesicle as presented by claimant and described by Dr. Hauser, and declare that it is or is not staph, without performing a culture. In short, Dr. Hauser performed two of the three indicated tests. He looked for a virus and for fungi, but he did not test for bacteria--which is staph.

In August 1984, prior to the hearing in this cause, Dr. Sherertz examined claimant, and her husband and daughter. Claimant and her husband were free of staph at that time, although the daughter had a lesion which proved to be a staph infection. Dr. Sherertz indicated that he could not state of his own knowledge that claimant had a staph infection in June or in August 1983. Dr. Hauser, who saw claimant in June 1983, did not culture claimant's skin lesions, and did not diagnose her skin disorders as staph. On the other hand, Dr. Shands, who saw claimant from August until October 1983, diagnosed claimant's skin condition as staph. Dr. Sherertz found the evidence conflicting. Nevertheless, he was of the opinion that in view of the fact that the onset of claimant's infections coincided in time with an outbreak of staph at MANH, the best available evidence would tell him that there was a significant possibility that claimant acquired the organism while she was working at the nursing home. He went on to say that it was more likely than not that claimant acquired the staph infection while working at Medic Ayers Nursing Home.

For the most part, claimant has proceeded pro se on her claim for TTD benefits and medical expenses. However, she was represented by counsel at the final hearing. At that time, counsel attempted to place into evidence the medical records pertaining to claimant's treatment for a staph infection and the report by Dr. Sacks concerning the staph epidemic at MANH. The deputy excluded these reports on hearsay grounds. The deputy then determined that claimant's skin condition was not causally related to her employment at MANH and denied all benefits.

The principle is well established that in determining a worker's compensation claim, the deputy's function is to resolve conflicting evidence, and his discretion will not be disturbed unless the medical testimony itself fails to support his findings....