Kessler v. Community Blood Bank

• Citation: 621 So.2d 539
• Decision Date: 13 July 1993
• Docket Number: No. 92-1592,92-1592
• Parties: 18 Fla. L. Week. D1607 Matthew KESSLER, Appellant, v. COMMUNITY BLOOD BANK and Michigan Millers, Appellees.
• Court: Court of Appeal of Florida (US)

Page 539

621 So.2d 539

18 Fla. L. Week. D1607

Matthew KESSLER, Appellant, v. COMMUNITY BLOOD BANK and Michigan Millers, Appellees.

No. 92-1592.

District Court of Appeal of Florida,

First District.

July 13, 1993.

Joseph H. Saunders, of Fernandez & Saunders, P.A., Pinellas Park, for appellant.

Nancy A. Blastic, of O'Riorden, Mann, Hootman, Ingram & Dunkle, P.A., Sarasota, for appellees.

MICKLE, Judge.

Claimant, Matthew Kessler, appeals from an order of the Judge of Compensation Claims ("JCC") denying his claim for benefits. We reverse and remand for further proceedings.

The claim arose from an injury sustained by Claimant on March 19, 1990, while working at the Community Blood Bank in Pinellas County drawing blood from, and attending to, donors. He received initial treatment from a chiropractor, Dr. Paulantonio, and reported a history of the March 19 accident that resulted from lifting a fallen blood donor from the stairwell of the "bloodmobile." Claimant complained of sharp pains in the back and neck, some leg pains, and difficulty in breathing. After missing a few days of work, Claimant returned to full-time, light-duty work subject to restrictions on lifting and bending. Dr. Paulantonio performed a clinical examination and ordered an MRI scan, which was performed on April 3, 1990. Having opined that Claimant had sustained post-traumatic headaches and traumatic sprains to the cervical and dorsal lumbar spine, the doctor commenced treatment with chiropractic manipulations.

A disability slip dated June 6, 1990 indicates that Claimant was totally incapacitated, and Dr. Paulantonio completed subsequent slips indicating Claimant's status was unchanged. The doctor explained that as of June 6, when Claimant complained of acute back pain, it was necessary to take him out of work totally due to an "exacerbation of symptoms." However, the record shows that the doctor did not perform a physical examination on June 6. Furthermore, he was unaware that Claimant had been fired from his job as a phlebotomist on the previous day, as the result of three separate reported acts of insubordination.

Claimant received additional treatment from an orthopedic surgeon, Dr. Sullivan, who determined from a physical examination that Claimant had no neurological deficits. X-rays showed some developmental changes but no traumatic or acute changes in the back. The doctor testified that it is abnormal for someone of Claimant's age (24 years) to have so many changes in the back as were indicated in the MRI report. Sullivan opined that Claimant's complaints and the results of the MRI and clinical examination are consistent with soft tissue problems in the back. The doctor found that Claimant had not reached maximum medical improvement ("MMI") when examined in May 1990. Sullivan testified that he had advised against continuing chiropractic treatment and instead had recommended physical therapy and certain exercises and instruction relating to care of the back. Claimant failed to return for a June 1990 appointment or to seek subsequent care from Dr. Sullivan.

About a month after the job termination, Claimant moved to Dade County and requested a chiropractor and an orthopedic surgeon. The Employer/Carrier ("E/C") inadvertently authorized a chiropractor who had retired, but Claimant was evaluated by the doctor's successor in the practice Dr. Lehman, in September 1990. Claimant submitted to orthopedic, neurological and chiropractic tests that "indicated disc involvement of the lower lumbar spine."

The E/C authorized Dr. Hinds, an orthopedic surgeon, to treat Claimant on October 26, 1990. Claimant testified that after a staff member took 4-6 x-rays, Dr. Hinds saw him. The remainder of the medical visit was described as follows:

He says, could you stand up. I had stood up. He said, can you bend over and I said no. He tried to push my back and I said that's as far as I can go. But he had lifted up my leg a couple of times and then he left the room. The examination wasn't longer than three minutes.

* * * * * *

My wife had came [sic] in, she sat down, all of a sudden Dr. Hinds comes back in with this sarcastic smile on his face and he says I have some good news and I have some bad news for you. He says the good news, there's nothing wrong with you. Never told me what the bad news was. He says well, I'll just call the insurance company, tell them there's nothing wrong with you. And then he said your paper's on the front desk, you can go. That was it.

Dr. Hinds was not deposed, nor did he testify. In a 2 1/2 page report in the record dated "October 26, 1989" but actually prepared on that date in 1990, Dr. Hinds commented:

Mr. Kessler is now seven months post soft tissue injury to the lower back. His findings, at this time, are definitely not consistent with a herniated disc clinically. He demonstrates on this visit somewhat of a passive aggressive tendency, as well as overt hostility toward his other treating physicians as well as the insurance carrier. Based on my findings, I find no reason he cannot return to normal employment as a phlebotomist. At seven months post injury, I doubt seriously if he would benefit at this time from further orthopedic treatment. He is MMI with no residual permanent disability as a result of the injury of March 19, 1990.

Dr. Lehrman, an orthopedic surgeon, provided unauthorized treatment on November 5, 1990, ten days after the visit to Dr. Hinds. Lehrman interpreted the MRI report as showing degenerative changes with dorsal herniation at L4-L5 and some degenerative changes at L5-S1. In a December 4, 1990, letter to the Carrier, he noted "Diagnosis: Herniated disk," and felt that Claimant would benefit from "an intensive rehabilitation and mobilization program." In a letter to another carrier the previous week, Dr. Lehrman had noted "Diagnosis: Disk syndrome, rule out herniated disk," and had recommended the same type of follow-up program. At the time of treatment, Lehrman did not think Claimant could work an eight-hour day, even if permitted to alternate periods of standing, sitting, and moving around, but he felt Claimant would be able to perform regular work after completing the recommended program. Dr. Lehrman testified that Claimant "was suffering from the residuals of a herniated disc."

Claimant received temporary total disability benefits for the period from his job termination to the date when Dr. Hinds determined MMI. The E/C defended the claim, asserting that Claimant had reached MMI on October 26, 1990, with no permanent impairment. On appeal, Claimant asserts three valid grounds for reversal.

First, the record lacks competent substantial evidence to support the finding of "no residual permanent impairment." Having carefully reviewed the record, including the doctors' depositions and medical reports and the JCC's order, and having considered the live testimony presented at hearing, we are convinced that Dr. Hinds' report is the key evidentiary source on which the JCC relied to find a date of MMI and an absence of permanent impairment. However, the JCC erred in accepting as pivotal Dr. Hinds' finding of "no residual permanent disability," and concluding from Hinds' report that Claimant has "no residual permanent impairment." Photo Electronics Corp. v. Glick, 398 So.2d 900, 901 (Fla. 1st DCA 1981). Dr. Hinds' report does not comply with section 440.15(3)(a)(3) Florida Statutes (1989), which deals with impairment benefits and...