Lovell Bros., Inc. v. Kittles, s. BN-11

• Decision Date: 08 December 1987
• Docket Number: BM-23,Nos. BN-11,s. BN-11
• Citation: 518 So.2d 319,12 Fla. L. Weekly 2799
• Parties: 12 Fla. L. Weekly 2799 LOVELL BROTHERS, INC., and Sentry Claims Service, Appellants, v. Ray Earl KITTLES, Sr., Appellee.
• Court: Florida District Court of Appeals

Page 319

518 So.2d 319

12 Fla. L. Weekly 2799

LOVELL BROTHERS, INC., and Sentry Claims Service, Appellants, v. Ray Earl KITTLES, Sr., Appellee.

Nos. BN-11, BM-23.

District Court of Appeal of Florida First District.

Dec. 8, 1987.

Robert C. Barrett of Cooper, Rissman & Weisberg, Orlando, for appellants.

Ralph J. McMurphy of Green, Simmons, Green, Hightower & Gray, Ocala, for appellee.

ZEHMER, Judge.

Two workers' compensation orders have been consolidated for review on this appeal by the employer and carrier. The first order approved retroactive authorization of Dr. Harry Jones to provide remedial treatment for claimant's low back and left leg problems, excused the doctor's failure to timely file his medical bills and reports covering past treatment, and ordered the employer and carrier to pay claimant's attorney a reasonable fee in an amount to be determined and costs. The second order found claimant was temporarily totally disabled from March 27, 1984, until February 1985 when he commenced sheltered employment with a neighbor, and temporarily partially disabled from February 1985 until September 23, 1985, when he again became temporarily totally disabled; it awarded claimant temporary total disability benefits for the period from March 24, 1984, until February 1985, and temporary partial disability benefits from February 19, 1985, until January 17, 1986, with credit for amounts earned by claimant in his employment with the neighbor during this period. Finding no reversible error, we affirm.

A somewhat detailed recitation of the facts is necessary to an understanding of the deputy commissioner's rulings. Claimant was injured during the course of his employment on October 15, 1983, while lifting an engine block out of a bin. The employer and carrier referred claimant to Dr. Jim Seymore, an orthopedic surgeon, who diagnosed claimant's injury as a lumbar strain and treated claimant based on this diagnosis. By January 19, 1984, claimant returned to work with certain limitations and began working half days. He experienced increased pain from his work activity, however, and ceased all work. Dr. Seymore then referred claimant to Dr. Steve Gilman, who saw claimant on one occasion for examination and evaluation. Dr. Gilman recommended that claimant try walking more, but offered nothing further by way of treatment. At the carrier's request, claimant also saw Dr. Clinton Bush for an orthopedic examination, but Dr. Bush likewise offered nothing by way of treatment. Neither of these two doctors was able to find any objective signs to explain claimant's persisting problems. Claimant continued under the care of Dr. Seymore, and by March 27, 1984, Dr. Seymore concluded that claimant had probably reached maximum medical improvement, but indicated that claimant would probably continue to experience pain and instructed claimant to look for work that did not require repetitive lifting, twisting, or bending, and restricted claimant to lifting not more than forty pounds. Dr. Seymore declined to assign any permanent impairment rating to claimant at that time.

On April 4, 1984, while on a job search, claimant was involved in an automobile accident in which he injured his neck and upper back and aggravated his low back condition. He went to Dr. Seymore and was treated on April 4 and again on April 23 for cervical strain and ligamentous injury to the neck. The problems with the neck and upper back resolved, and claimant did not see Dr. Seymore again until August 1984, when he complained of pain in the low back and left leg. Dr. Seymore indicated that claimant was continuing to experience low back pain as he had predicted on March 27, that it was causally related to his industrial accident in October, and maintained claimant on the same restrictions. Claimant saw Dr. Seymore for the last time in December 1984 while seeking treatment for the low back pain.

In April 1985, claimant, at his own expense, sought treatment for his back pain by a chiropractor, but soon ceased because the treatments did not improve his condition. He did not see another doctor until September 1985, when he went to see Dr. Jones. In August, before seeing Dr. Jones, claimant requested the carrier to authorize Dr. Jones to examine and treat him for the back pain. The carrier refused and informed claimant he could return to Dr. Seymore or Dr. Bush, explaining to claimant that no new physician would be authorized because a new doctor would not be able to determine if claimant's present problems were related to the October 1983 industrial accident. Claimant told the carrier that Drs. Seymore, Gilman, and Bush were not acceptable because they had told him there was no treatment they could offer to alleviate his condition and again specifically requested Dr. Jones, but the carrier refused.

Claimant went to and was evaluated by Dr. Jones on September 23, 1985, even though both claimant and Dr. Jones knew that he was not authorized. The examination revealed tenderness in claimant's back at L5-S1, a grade II muscle spasm, and a positive straight leg raise at sixty degrees. Claimant had a decreased ankle jerk and one-and-one-half-centimeter atrophy of the left leg. Dr. Jones diagnosed nerve root irritation and commenced treatment with steroids to, in the words of the deputy commissioner, "get at the source of the problem, not simply pain medication to treat the symptoms." Dr. Jones opined that claimant was temporarily totally disabled. As of January 16, 1986, Dr. Jones remained of the opinion that claimant was temporarily totally disabled. Dr. Jones did not file any medical bills or reports with the carrier or the Division prior to the hearing.

The deputy commissioner found that claimant's condition improved under the care of Dr. Jones and, as the other three doctors had nothing to offer claimant, that it was in the best interest of the parties that Dr. Jones be authorized. He found that failure to timely file medical bills and reports was excusable in the face of the carrier's repeated refusal to authorize Dr. Jones and notice to controvert the claim for his services. The deputy commissioner retroactively authorized Dr. Jones, directed him to file his medical bills and reports, and ordered the carrier to pay the bills when filed.

In February 1985, claimant began working part-time as a supervisor on his neighbor's farm, earning $8.50 per hour. The neighbor testified that claimant worked in a purely supervisory capacity, explaining to other employees how carpentry work and mechanical repairs should be done. He also testified that claimant could not do manual work and had to have help to do any type of lifting, that he could observe claimant was in pain when working, and that c...