FCCI Mut. Ins. Co. v. Schnupp, 96-609

CourtCourt of Appeal of Florida (US)
Citation697 So.2d 1234
Parties22 Fla. L. Weekly D1679 FCCI MUTUAL INSURANCE COMPANY and Interlachen Country Club, Appellants, v. Donna L. SCHNUPP, Appellee. First District
Docket NumberNo. 96-609,96-609
Decision Date11 July 1997

Page 1234

697 So.2d 1234
22 Fla. L. Weekly D1679
FCCI MUTUAL INSURANCE COMPANY and Interlachen Country Club, Appellants,
Donna L. SCHNUPP, Appellee.
No. 96-609.
District Court of Appeal of Florida,
First District.
July 11, 1997.
Rehearing Denied Aug. 19, 1997.

Appeal from an order of the Judge of Compensation Claims Rand Hoch.

Mark E. Spangler of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellants.

H. Guy Smith of Smith & Feddeler, P.A., Lakeland, for Appellee.


FCCI Mutual Insurance Company and Interlachen Country Club appeal a decision awarding medical care and treatment, not previously authorized by the appellants, to Donna L. Schnupp. Based upon the pleadings and proof adduced at trial and the manner in which this case was tried before the judge of compensation claims and argued on appeal before this court, we find that there is competent substantial evidence to support the decision of the judge of compensation claims. See Lovell Brothers v. Kittles, 518 So.2d 319 (Fla. 1st DCA 1987). The order of the judge of compensation claims is AFFIRMED.

BARFIELD, C.J., and ERVIN, J., concur.

BENTON, J., dissents with written opinion.

BENTON, Judge, dissenting.

The judge of compensation claims entered an order awarding certain workers' compensation

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benefits to Donna L. Schnupp and, after the fact, authorizing diagnostic testing (a "discogram") and back surgery by previously unauthorized physicians. Before the diagnostic testing and surgery, Ms. Schnupp mailed a written request that a particular orthopedic surgeon, Dr. Hogshead, be authorized to treat her and that a discogram be authorized, but she did not request authorization for her surgery until the operation was over.

In response to her initial request for authorization for Dr. Hogshead, the Interlachen Country Club, the claimant's erstwhile employer, and FCCI Mutual Insurance Company, the Club's workers' compensation carrier, declined to authorize a sixth orthopedist to treat her, and so advised Dr. Hogshead. The request for authorization for a discogram, which was not received until after the discogram had been performed, was also denied.

After another physician, a "diagnostic interventional radiologist," had performed a discogram, Dr. Hogshead did "three level [anterior and posterior spinal] fusion surgery," without prior notice to the employer or its carrier, and without furnishing them the results of the discogram. No emergency required either the diagnostic testing or the surgery, which the judge of compensation claims explicitly found to have been elective. The employer and its insurance carrier contend that it was error to authorize the discogram and the surgery retroactively. I agree with their contention and would reverse on that basis.

Low Back Pain

While working as a waitress at the Interlachen Country Club on April 5, 1992, Ms. Schnupp reported low back pain after lifting a cooler and its contents onto a dolly. On April 16, 1992, she went to see Dr. Mayer, who raised the possibility of a fracture of the coccyx, and referred her to Dr. McCutchen, an orthopedic surgeon, who first saw her on April 21, 1992.

Ms. Schnupp complained of pain and numbness in her left leg down to her toes. A scan seemed to Dr. McCutchen to show a right central and lateral area of mild or moderate herniation on a lumbosacral disc. Dr. McCutchen believed that Ms. Schnupp had a herniated disc at the L5-S1 region but was "not sure why it appears to be right-sided on the CT and her symptoms were left-sided." Dr. McCutchen, who placed Ms. Schnupp on steroids and anti-inflammatories, did not believe that Ms. Schnupp's coccyx had a lesion.

Ms. Schnupp was seen again on April 28, 1992. At that time she reported occasional pain to the right leg but more pain to the left side. By May 7, 1992, she reported more right-side pain than left. On May 21, 1992, she reported that her symptoms were primarily right-sided. Dr. McCutchen referred her to Dr. Munson, another orthopedic surgeon, who first saw her on May 22, 1992.

Dr. Munson noted that Ms. Schnupp did not have a severe disc extrusion and that her clinical findings seemed to be mild. On June 23, 1992, Ms. Schnupp still reported pain. Dr. Munson ordered magnetic resonance imaging (MRI) with a view toward possible surgery. But the MRI revealed "absolutely no disc herniation and, in fact, a normally hydrated disc at L5-S1." Dr. Munson concluded that the MRI results "would tend to negate her CT findings of a suggestion of a herniated disc at L5-S1 on the right," and advised:

I certainly could recommend no surgical intervention based on this inconsistency. She still has some mildly positive right leg symptoms. She does say that initially she did have some pain in her left leg. Her nerve tension signs seem to remain somewhat positive on the right and negative on the left but certainly inconsistent with any findings on her MRI. My advice would be a trial of epidural steroids rather than surgical intervention. Certainly if conservative measures here did not provide her any improvement, my advice would be a myelogram enhanced CT scan to further clarify the issue here.

On deposition, Dr. Munson explained that Ms. Schnupp's "symptoms were in excess of what could be explained by any of the diagnostic tests, and there was no--there was simply nothing to fix." Dr. Munson also

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referred Ms. Schnupp to Dr. Hollifield, a neurosurgeon.

On August 6, 1992, Dr. Hollifield evaluated Ms. Schnupp. Dr. Hollifield noted that Ms. Schnupp's "general exam was unremarkable," and that the "MRI [wa]s really unimpressive to my review." Dr. Hollifield ordered a myelogram and CT scan in an attempt to ascertain Ms. Schnupp's situation. On August 25, 1992, Dr. Hollifield noted:

Myelogram and CT scan show really insignificant findings of a very small disc herniation on the left of the midline at L5-6. The patient complaints are of right leg pain at present and I see nothing to explain this. I feel that she deserves a tr[ia]l of physical therapy and I would like to check her back in three weeks.

On November 4, 1992, Dr. Hellinger, another neurosurgeon, performed an independent medical examination. Dr. Hellinger opined on deposition that Ms. Schnupp was not a surgical candidate, that she had reached maximum medical improvement when he saw her and that she had a zero percent impairment rating with no restrictions.

Ms. Schnupp continued to see Dr. Hollifield through January 4, 1993, at which time Dr. Hollifield noted that Ms. Schnupp's "clinical examination [wa]s really without deficit." Dr. Hollifield had maintained that Ms. Schnupp was not a surgical candidate because "[h]er study suggest[ed] a very small left L4-5 disc herniation and certainly d[id] not explain her right sided pain." Dr. Hollifield ordered an MRI of the thoracic area to rule out any possible pathology further up the spine and noted that if this was negative he had little else to offer her and would refer her back to Dr. Mayer.

On February 24, 1993, Dr. McBride, an orthopedic surgeon, performed an independent medical examination. Dr. McBride's notes indicate that the thoracic MRI was performed and was "unremarkable except for mild scoliosis." Dr. McBride reviewed Ms. Schnupp's myelogram, CT scan and MRI, which did "not show any overwhelming evidence of nerve root entrapment, disc herniation or central canal stenosis." Dr. McBride, who was "somewhat at a loss to explain her symptoms," surmised that her pain might be originating from some other source and ordered a bone scan. On March 1, 1993, Dr. McBride received the results of the bone scan and noted that they were normal. On March 8, 1993, Dr. McBride placed Ms. Schnupp on anti-inflammatories. Dr. McBride also recommended trigger point injections, which Ms. Schnupp declined.

Next Ms. Schnupp requested, and the employer and its carrier authorized, Dr. Uricchio, a board-certified orthopedic surgeon, who saw Ms. Schnupp on June 2, 1993. Dr. Uricchio reviewed her prior tests which he found to reveal "only minimal degenerative changes easily compatible with her age," and to show no evidence of disc herniation or of pressure on the nerve root. Dr. Uricchio also performed a sensory deficit pinprick test, which revealed no pressure on any nerve. On deposition, Dr. Uricchio testified that Ms. Schnupp "sat on the examining chair with all the weight on her left buttock," but that "[l]ater on the examining table she had all the weight on her right buttock."

Dr. Uricchio ordered an EMG, which revealed no evidence of acute lumbosacral radiculopathy, and a thermogram, which was only minimally abnormal, "almost to the point of being equivocal." Dr. Uricchio concluded that "there was no purely objective evidence to suggest permanent physical impairment if based on demonstrable anatomic change as a direct and specific result of the 4/5/92 incident," and that he had "very little else to add to this patient's treatment." Dr. Uricchio did not believe that Ms. Schnupp was a surgical candidate.

On August 11, 1993, a petition for benefits was filed seeking authorization for an osteopath to treat Ms. Schnupp. In a letter dated August 19, 1993, and again in a letter dated September 15, 1993, the employer and its insurance carrier explicitly authorized both an osteopath--who was originally authorized in a form response to the petition for benefits dated August 24, 1993--and Dr. Hellinger, the neurosurgeon whose previous authorization had been limited to evaluating Ms. Schnupp, along with Drs. Haddock, Hollifield, McCutchen, and Munson, to provide whatever treatment she needed.

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Unauthorized Physicians

Instead, on October 25, 1993, Ms. Schnupp made her first visit to Howard Hogshead, an orthopedic surgeon in Jacksonville. Ms. Schnupp testified that she went to Dr. Hogshead "under" her husband's health insurance, without requesting authorization from her employer or its...

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