Hutchinson v. Lykes Smithfield Packing, No. 1D02-2622.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: BROWNING, J.
• Citation: 870 So.2d 144
• Parties: Lois HUTCHINSON, Appellant/Cross-Appellee, v. LYKES SMITHFIELD PACKING and Gallagher Bassett Services, Inc., and Travelers Property & Casualty, Appellees/Cross-Appellants.
• Docket Number: No. 1D02-2622.
• Decision Date: 08 January 2004

870 So.2d 144

Lois HUTCHINSON, Appellant/Cross-Appellee,
v.
LYKES SMITHFIELD PACKING and Gallagher Bassett Services, Inc., and Travelers Property & Casualty, Appellees/Cross-Appellants

No. 1D02-2622.

District Court of Appeal of Florida, First District.

January 8, 2004.

Manuel Franco, Tampa; and Bill McCabe, Longwood, for Appellant/Cross-Appellee.

870 So.2d 145

R.G. McCormick, Jr., of The Bleakley Law Firm, Tampa, for Appellees/Cross-Appellants

BROWNING, J.

The claimant, Lois Hutchinson, appeals a final order of the Judge of Compensation Claims (JCC) finding that Hutchinson suffered only a temporary aggravation of a pre-existing condition and awarding medical and temporary indemnity benefits only through July 31, 2000 (the date of maximum medical improvement). Appellees, the Employer/Carrier, cross-appeal the final order. Concluding that Employer/Carrier's failure to comply with the clear requirements of section 440.20(4), Florida Statutes (2000), waived their right to challenge compensability of Hutchinson's pulmonary condition, we reverse the final order, insofar as it limits the waiver of compensability, and remand for further proceedings. Travelers Ins. Co. v. Collins, 825 So.2d 451 (Fla. 1st DCA 2002); Franklin v. Northwest Airlines, 778 So.2d 418 (Fla. 1st DCA 2001).

In July 1967, Hutchinson commenced working for Employer assembling corrugated cardboard boxes. Hutchinson reported that at the workplace on May 11, 2000, a loosened vacuum exhaust hose emitted thick, oily and black smoke, filling her work area for 15-25 minutes. Complaining of a sore throat and difficulty breathing, she went into South Florida Baptist Hospital on May 13, 2000. Hutchinson, who was in her early 60s, did not return to work after her hospitalization. She was accepted as totally disabled by the Social Security Administration in October 2000.

According to the deposition testimony of Miguel Aguila, who was the adjuster in charge of Hutchinson's file, a Notice of Injury for the May 11, 2000, industrial accident was received on May 16, 2000. A "field case nurse" was assigned to investigate the compensability of Hutchinson's claim. In a deposition, Elaine Quailey, who is a registered nurse, testified that pursuant to a contract with the Carrier, her then-employer had designated her as the certified nurse/case manager of Hutchinson's claim. Quailey testified that after reviewing Hutchinson's medical chart___ which showed an admitting diagnosis of an exacerbation of chronic obstructive pulmonary disease (COPD)___she visited Hutchinson at the hospital on or around May 17, 2000, and obtained a history. At that point, Quailey determined that Employer/Carrier would be responsible only for the "acute exacerbation," i.e., Employer/Carrier would get Hutchinson back to her pre-injury status, which was chronic bronchitis. Hutchinson told Quailey that she had never been told that she had COPD. While at the hospital, Quailey told Hutchinson that Employer/Carrier would be taking care of only the exacerbation, i.e., hospital care, and that Hutchinson's private health insurance carrier would be taking over afterwards. In any event, Employer/Carrier paid the bill at South Florida Baptist Hospital. Hutchinson's medical records state that she was a long-time heavy cigarette smoker. According to Aguila, Quailey informed him about a possible issue relating to compensability and a pre-existing condition.

Dr. Ackerman, a specialist in pulmonary diseases, critical care, and internal medicine, became Hutchinson's primary treating physician soon after her hospitalization. Believing that her condition was caused by her industrial accident, Hutchinson wanted a second medical opinion. Quailey set up a June 26, 2000, evaluation by authorized physician Dr. Goldstein, a specialist in internal and pulmonary medicine, whom Hutchinson chose from a list of specialists. Quailey asked Dr. Goldstein to

870 So.2d 146

determine whether Hutchinson's COPD pre-existed the May 11, 2000, industrial accident, and if so, whether the industrial accident caused a temporary or permanent aggravation of the condition. As Quailey continued to...