Kentucky Fried Chicken v. Tyler, 97-1449
| Decision Date | 27 July 1998 |
| Docket Number | No. 97-1449,97-1449 |
| Citation | 716 So.2d 295 |
| Parties | 23 Fla. L. Weekly D1778 KENTUCKY FRIED CHICKEN and Crawford & Company, Appellants/Cross-Appellees, v. Laurie TYLER, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
David J. LoNigro of Oxendine & Oxendine, P.A., Tampa, for Appellants/Cross-Appellees.
John Hugh Shannon of John Hugh Shannon, a professional association, Lakeland, for Appellee/Cross-Appellant.
Kentucky Fried Chicken and Crawford & Company appeal a compensation order ruling Laurie Tyler entitled to payment for Dr. Merritt's bills for past chiropractic services he rendered, to psychiatric evaluation and treatment, and to temporary partial disability (wage-loss) benefits, and finding that she had not reached maximum medical improvement. We affirm the award of payment for Dr. Merritt's bills and authorization for a psychiatric evaluation. But we reverse on the other points urged on the main appeal and remand with directions.
Ms. Tyler cross-appeals, arguing that the judge of compensation claims erred in ordering that new doctors be named to treat her, instead of authorizing previously unauthorized physicians who had been treating her. On the cross-appeal, we affirm because the issue was not preserved by appropriate objection below.
While working for Kentucky Fried Chicken on October 23, 1988, Ms. Tyler slipped and fell on a ramp leading to a walk-in cooler, injuring her lower back. On November 11, 1988, Dr. Mahan 1 released Ms. Tyler to return to work, albeit with restrictions on heavy lifting and bending.
With the exception of ten days immediately after her fall, Ms. Tyler worked for Kentucky Fried Chicken for the nine months that followed her industrial accident. After she left Kentucky Fried Chicken, she worked at an Olive Garden Restaurant for about six months, and then took seasonal jobs at a cannery. Since 1991, she has been employed by The Whitehead Nursery, working in a greenhouse.
In October of 1990, some two years after the industrial accident, Ms. Tyler went to see Dr. Brackett, a neurologist who was authorized to evaluate and treat her. Dr. Brackett ordered a computerized tomographic scan which revealed no abnormality, prescribed anti-inflammatory medication, and told Ms. Tyler to continue with mobilization exercises.
Ms. Tyler next sought medical treatment in April of 1992, when she went to an unauthorized chiropractor, Dr. Merritt. 2 Dr. Merritt treated Ms. Tyler from April until June of 1992. On June 22, 1992, he declared that she had attained maximum medical improvement with a permanent impairment rating of twenty-five per cent, released her from further treatment, released her to light or sedentary work, and recommended a psychiatric evaluation. 3
After Dr. Merritt released her, Ms. Tyler sought out Dr. Hendricks, another unauthorized chiropractor. Dr. Hendricks treated her from July until September of 1992, at which point he informed her he had no further treatment to offer her. Ms. Tyler returned to Dr. Merritt in August of 1994, and continued to receive chiropractic adjustments from him until the final hearing.
In October of 1993, the employer sent the claimant to Dr. Sullivan, an orthopedist, for an independent medical examination. Dr. Sullivan found no orthopedic basis for Ms. Tyler's complaints, and opined that she had reached maximum medical improvement from an orthopedic perspective long before he had examined her.
In a claim for benefits dated May 26, 1992, Ms. Tyler requested that a chiropractor be authorized. Dr. Merritt requested authorization to treat her at approximately the same time. Appellants denied the request for authorization of a chiropractor and never authorized a chiropractor to treat Ms. Tyler. 4 They denied the claim on grounds that a chiropractor had not been medically necessary, requested, or authorized, and that all needed medical care had been provided.
Because the employer did not authorize chiropractic treatment when requested (or go to a judge of compensation claims to contest the need for chiropractic treatment) and because the judge of compensation claims concluded that chiropractic treatment was medically reasonable and necessary, he awarded payment for chiropractic treatment Dr. Merritt rendered. We affirm this award.
Kentucky Fried Chicken contends that the award should be reversed because it authorized several other physicians to treat Ms. Tyler, even though it never authorized Dr. Merritt or any other chiropractor. But the availability of treating doctors other than chiropractors did not discharge the employer's responsibility to provide chiropractic treatment. See Kirkland v. Harold Pratt Paving, Inc., 518 So.2d 1320, 1325 (Fla. 1st DCA 1987).
Ms. Tyler filed a claim for psychological evaluation and treatment in July of 1992. The judge of compensation claims ruled that Ms. Tyler needed psychiatric treatment, that her need for psychiatric treatment was causally related to the 1988 fall at work, and that she had not yet reached maximum medical improvement from a psychiatric perspective.
Since neither Ms. Tyler's lay testimony nor Dr. McClane's records established a causal connection between her industrial accident and a need for psychiatric treatment, we reverse the award both of prospective psychiatric treatment and of payment for Dr. McClane's medical bills. Wal Mart Stores, Inc. v. Mann, 690 So.2d 649, 650 (Fla. 1st DCA 1997). We affirm, however, the award of a psychiatric evaluation. See Blackshear v. Bethune Cookman College, 467 So.2d 721 (Fla. 1st DCA 1985).
"To be compensable, a post-traumatic mental disorder must be the direct and immediate result of the industrial injury." Greater Miami Academy v. Blum, 466 So.2d 1263, 1264 (Fla. 1st DCA 1985). Leon County Sch. Bd. v. Green, 711 So.2d 86, 88 (Fla. 1st DCA 1998).
As a result of Ms. Tyler's husband's own work-related disability, her husband's former employer provided counseling by Dr. McClane, a psychiatrist. Ms. Tyler sometimes accompanied her husband at counseling sessions Dr. McClane conducted. At one point in 1994, Dr. McClane prescribed medication for what he diagnosed as Ms. Tyler's depression. Although Dr. McClane did not testify, a letter came in evidence without objection in which he recommended that she be evaluated to determine whether what seemed to be depression was related to her accident at work. Dr. McClane never performed an evaluation himself to ascertain the cause of Ms. Tyler's apparent depression.
Dr. McClane's letter of May 31, 1996, supports the need for a psychiatric evaluation (as did Dr. Merritt's recommendation) but it is not competent substantial evidence that Ms. Tyler's psychiatric condition is the direct and immediate result of a physical injury sustained in her 1988 fall at work. The letter states, in pertinent part:
What you need is a thorough evaluation psychiatrically (which I have never had the opportunity to perform). You need this evaluation primarily to determine what treatment you need and how to get you better. You also need this evaluation to determine how much of this problem is related to your injury and chronic pain for medico/legal purposes.
This letter indicates a need for a psychiatric evaluation but neither the letter nor a cryptic treatment note from a joint counseling session on March 30, 1994--viz., --provide competent substantial evidence that the industrial accident caused a psychiatric condition requiring treatment.
The judge of compensation claims found that Ms. Tyler had not attained maximum medical improvement (psychiatrically or physically) by the time of the hearing, and awarded temporary partial disability wage-loss benefits on that premise. On this record, the possibility of psychiatric improvement is not germane. Absent proof of psychiatric injury causally connected to a compensable accident, the question of maximum psychiatric improvement has no legal significance.
Properly at issue is whether Ms. Tyler had reached maximum medical improvement from a physical perspective. In finding that she had not, the judge of compensation claims cited the "particularly persuasive" testimony 5 of Dr. Hendricks "that he did not feel comfortable in making that determination [maximum medical improvement] without further examination and work up." We reverse the determination that Ms. Tyler had not reached maximum medical improvement from her physical injury as contrary to unrebutted evidence that she had. See, e.g., Gaddis v. Allied Plastics, 649 So.2d 904 (Fla. 1st DCA 1995) ().
In contrast to Dr. Hendricks's neutral views on maximum medical improvement, the unequivocal opinion of Dr. Merritt, the unauthorized chiropractor, put Ms. Tyler at maximum medical improvement as of June 22, 1992. Drs. Mahan and Taxdal were never asked to assign maximum medical improvement dates, but released claimant to return to work without further medical treatment only weeks after the 1988 industrial accident.
Dr. Brackett, who examined her in 1990 and again in 1992, finding no...
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