East Manor Medical Care Center v. Stevens
| Decision Date | 02 September 1983 |
| Docket Number | No. AP-189,AP-189 |
| Citation | 437 So.2d 721 |
| Parties | EAST MANOR MEDICAL CARE CENTER and Ranger Insurance Company, c/o Crawford and Company, Appellants, v. Violet STEVENS, Appellee. |
| Court | Florida District Court of Appeals |
John J. O'Riorden of Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellants.
Alex Lancaster, Sarasota, for appellee.
The E/C appeal an order entered October 20, 1982 awarding temporary total disability benefits and continuing medical treatment by Drs. Reith and Babcock. The sole issue is whether there was a change in condition under Section 440.28, Florida Statutes (1979) justifying modification of a prior order entered on April 21, 1982 denying a claim for additional temporary total disability and additional medical care. We find that the deputy commissioner did not err in modifying the prior order.
The claimant was injured on July 1, 1981 when she fell while mopping a floor. Her claim for temporary total disability benefits and future medical care came on for hearing on April 14, 1982. Based upon the medical evidence from the reports and depositions of the claimant's authorized physicians, the deputy found that there was "insubstantial competent evidence to support a claim for additional temporary total or additional medical care." That ruling was not appealed and its correctness is not attacked in the present proceeding.
A brief review of the claimant's experience in seeking medical help both before and after the hearing on her first claim will aid in understanding the posture of the case as it appeared before the deputy at the hearing on her second claim. The claimant was last seen by her primary, authorized treating physician on November 11, 1981. She had also been referred to two other authorized physicians. Because she received no relief from them, on her own she sought the services of a doctor of her own choosing in Terre Haute, Indiana, who saw her in October, November and December 1981. She was examined on February 2, 1982 by yet another authorized Florida physician, who also could find no explanation for her condition. Nevertheless, the claimant continued to seek medical help, and was finally referred to Dr. Reith, of St. Petersburg, by the local medical society in Sarasota. Dr. Reith, an orthopedic surgeon, actually first saw the claimant on April 13, 1982, the day before the first hearing. From the first, despite knowledge of the extensive work-ups and examinations of other physicians, he was suspicious that claimant had a protruded intervertebral disc. He decided on a course of conservative treatment in the hospital, including physiotheraphy, pelvic traction, bed rest and medication. She was hospitalized on May 12, 1982, but failed to respond to this treatment. Dr. Reith then consulted with Dr. Babcock, a neurosurgeon, who performed another myleogram, and a CAT scan, both of which produced normal findings. The doctors then proceeded with exploratory surgery, which was conducted on May 26, 1982. Protruded discs were discovered at two levels, L-4 and L-5, and removed. The claimant testified at the second hearing, which was held on September 14, 1982, that the operation had greatly relieved her pain, and she requested that Drs. Reith and Babcock be authorized to continue her medical treatment.
Evidence before the deputy commissioner indicated that the authorized physicians treating and examining the claimant prior to the first hearing apparently performed the proper tests, including a myleogram and CAT scan, with negative results. At the first hearing, the deputy commissioner had before him the testimony of the primary treating physician, Dr. Boring, that if the claimant had a protruding disc, it was "very mild," if it existed at all. Also produced was testimony or reports from the other doctors to the effect that they could find no organic cause for the patient's complaints which included pain in her left hip, left lower extremity, left foot, and pain and tenderness in her low back. None of these physicians felt claimant was disabled.
Following the first hearing, Drs. Reith and Babcock essentially replicated the tests and procedures performed by the other doctors, with the same results. They decided upon surgery, however, after the period of hospitalization and conservative treatment described above failed to alleviate the claimant's symptoms. When Dr. Babcock, assisted by Dr. Reith, operated on claimant's back, he found the L-5 disc to be "bulging fairly markedly" and "extremely soft." The L-4--L-5 disc was "not bulging as markedly as that noted at L-5--S-1 but was bulging abnormally and was extremely soft." The conditions they found and surgically treated were diagnosed as the cause of the claimant's complaints, and were causally related to the accident of July 1, 1981. There is no dispute on these issues.
At the conclusion of the second hearing, the deputy commissioner entered his order finding, among other things: "It is obvious that there has been a change of condition in that the claimant has had surgery for her injuries which are now related to the industrial accident." He further found that the claimant's complaints and symptoms "although insusceptible of prior diagnosis and treatment by the other physicians, are credible and comport with logic and reason." As to this latter finding we observe that it would have been more accurate to state that her condition was insusceptible of prior diagnosis and treatment by the usual and ordinary means, since there is no evidence that exploratory surgery could not have been performed earlier.
We conclude that the evidence supports the deputy's finding of a change of condition. As stated by the deputy, the claimant has had surgery, and there is no question but that she was disabled during the operation and for the period required for her recovery. However, we also find further support in the record for a finding of change in condition. We first note that the claimant testified very positively at the second hearing that her painful condition had "gotten worse," and that it ...
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