Lewis v. Town & Country Auto Body Shop

• Decision Date: 21 March 1984
• Docket Number: No. AR-41,AR-41
• Citation: 447 So.2d 403
• Parties: John L. LEWIS, Appellant, v. TOWN & COUNTRY AUTO BODY SHOP and Aetna Casualty & Surety, Appellees.
• Court: Florida District Court of Appeals

Page 403

447 So.2d 403

John L. LEWIS, Appellant, v. TOWN & COUNTRY AUTO BODY SHOP and Aetna Casualty & Surety, Appellees.

No. AR-41.

District Court of Appeal of Florida,

First District.

March 21, 1984.

Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, St. Petersburg, for appellant.

Thomas R. Bopp of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees.

ZEHMER, Judge.

Claimant appeals the deputy commissioner's order denying his motion that the employer and carrier be required to provide further medical treatment. We reverse.

Shortly after a compensable accident on February 5, 1982, claimant was treated by Dr. Downey, a chiropractor who had treated claimant for back problems before the accident. After the employer and carrier deauthorized Dr. Downey, claimant saw an orthopedic surgeon; and after claimant expressed dissatisfaction with that physician, the employer and carrier reauthorized Dr. Downey, who continued treating claimant. Subsequently, the carrier, Aetna Casualty and Surety, denied coverage, asserting that it was not the carrier providing coverage for the employer on the date of the accident. Following a hearing on this coverage issue, the deputy entered an order on August 26, 1982, resolving the issue against Aetna and in favor of coverage.

After resolution of the carrier coverage question, the employer and carrier disputed claimant's average weekly wage and his entitlement to temporary total disability and reimbursement for medical expenses previously incurred. Among other things, the carrier took the position that maximum medical improvement was reached April 5, 1982. Claimant asserted that he had not reached that plateau. After the September 23, 1982, hearing on the merits, the deputy entered his order on September 24, 1982, in which he, among other things, awarded temporary total disability benefits up to the date of the September 23 hearing and required the carrier to pay certain medical bills. In addition, the order required the employer and carrier to:

Continue to provide to the employee-claimant that form of remedial and/or palliative medical care and attention consistent with the nature of his injury and the process of his recovery in the manner and for the time period prescribed by law, leaving to the employer/carrier their statutorily created right of first selection of an orthopedic surgeon to evaluate and treat the employee inasmuch as the employee-claimant is not, in accordance with the testimony of Dr. Downey, receiving any remedial benefit from further chiropractic treatment. (Emphasis added.)

The deputy made the following finding in his September 24 order:

Dr. Downey candidly admits that the treatment being rendered by him is of a palliative nature and that the employee-claimant has attained the status of maximum medical improvement and physical recovery from chiropractic treatment, but that he is in need of additional diagnostic studies and evaluations by an orthopedic surgeon, which has not to date been afforded by the employer/carrier herein. (Emphasis added.)

No appeal was taken from the September 24 order.

The employer and carrier subsequently authorized claimant to be examined by Dr. Keeler, an orthopedic surgeon. The employer and carrier advised counsel for claimant that Dr. Keeler would be authorized to treat claimant if the doctor determined that claimant needed treatment. Dr. Keeler examined claimant on October 29, 1982, and concluded that claimant had reached maximum medical improvement and was not in need of additional treatment. Accordingly, Dr. Keeler refused to see claimant further, even though claimant attempted to make further appointments with him.

On January 3, 1983, claimant's counsel filed a motion seeking an order authorizing a physician to treat claimant and to require the carrier to pay for such treatment. The employer and carrier had previously, on November 22, 1982, filed an application for hearing to determine whether claimant was entitled to further medical treatment.

At a hearing on January 14, 1983, the employer and carrier took the position that the claimant had reached maximum medical improvement, and claimant asserted that he had not. The evidence presented included claimant's testimony, a written report of Dr. Keeler, and the deposition of Dr. Keeler taken three days prior to the hearing. The claimant testified that he was experiencing pain in his back, numbness in his legs, and that he was unable to work. He said that the "adjustments" administered by Dr. Downey gave him some relief. Dr. Keeler testified that in his opinion claimant had reached maximum medical improvement with a five percent permanent physical impairment, that he did not feel claimant would benefit from additional medical care, that additional chiropractic manipulations would only increase claimant's problems, and that intermittent pain which might result from claimant's resumption of physical activity would be relieved by local heat, aspirin, or short periods of rest. The conflicts between Dr. Keeler's testimony and claimant's testimony are obvious.

Based on the evidence presented, the deputy found there to be no basis upon which to order further medical treatment and, accordingly, denied the claimant's motion. The claimant asserts on appeal that the deputy did not make a specific finding that maximum medical improvement had been reached.

Although the deputy did not expressly state that he found the claimant to have reached maximum medical improvement, he obviously concluded that Dr. Keeler's testimony that claimant had already reached maximum medical improvement at the time of his examination was conclusive. The order states:

The sole medical evidence before your undersigned is the testimony of Dr. William H. Keeler, III, an orthopedic surgeon licensed and practicing in Pinellas County, who has opined predicated upon his examination of the employee-claimant on October 28, 1982, that the employee-claimant has attained the status of maximum medical improvement and physical recovery and is not in need of additional treatment. The opinion of Dr. Keeler is not in conflict with any other medical evidence before your undersigned. The employee-claimant's voiced subjective degree of symptomatology which, in his...