Miller v. State, Dept. of Transp., 95-575

• Decision Date: 17 September 1996
• Docket Number: No. 95-575,95-575
• Citation: 679 So.2d 854
• Parties: 21 Fla. L. Weekly D2073 Diana Louise MILLER, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
• Court: Florida District Court of Appeals

Page 854

679 So.2d 854

21 Fla. L. Weekly D2073

Diana Louise MILLER, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.

No. 95-575.

District Court of Appeal of Florida,

First District.

Sept. 17, 1996.

Harvey Kaufman, Palm Beach Gardens, for appellant.

Helene H. Morris and Mark A. Faris, of Miller, Kagan, Rodriguez & Silver, P.A., West Palm Beach, for appellee.

KAHN, Judge.

Claimant Diana Louise Miller challenges an order entered by the Judge of Compensation Claims (JCC) in this workers compensation case. Claimant first argues that the JCC's determination of the date of maximum medical improvement (MMI) is not supported by competent substantial evidence. She also argues that the JCC erred in limiting reimbursement for chiropractic bills to a time period between July 19, 1993, and August 11, 1993. The MMI date selected by the JCC is supported by the record, but the case must be remanded for further proceedings on the denial of certain chiropractic benefits.

Miller suffered a compensable accident on March 24, 1992, and later filed a claim requesting temporary partial disability or wage loss benefits as well as reimbursement for bills incurred during treatment by Dr. Milo Vannucci, an unauthorized chiropractor. The employer took the position in the pretrial stipulation and also at hearing that Miller reached MMI on August 29, 1992, 26 weeks of wage loss had been paid, and therefore no further temporary partial or wage loss benefits were due. The JCC adopted the August 29, 1992, MMI date.

On appeal, Miller urges that Dr. Wagner's MMI report was actually made on August 26, 1992, and that he continued to provide remedial care to Miller after that date, in a manner inconsistent with MMI. Employer agrees that Dr. Wagner's letter was sent on August 26, 1992, and urges that the extension of MMI by three days, if erroneous, could only be to the employer's benefit, and the employer has elected not to file a cross-appeal. The MMI date is supported by Dr. Wagner's report.

In the report, Dr. Wagner stated that Miller had sustained a three percent whole person impairment and that future treatment would be "palliative." In his deposition, Dr. Wagner stated that when he last saw Miller on September 18, 1992, he thought she was at maximum medical improvement. He did not in the deposition offer a specific date prior to September 18, 1992, for MMI. Because Dr. Wagner's report constitutes competent substantial evidence supporting an MMI date of August 26, 1992, the JCC's selection of August 29 did not result in prejudice to the claimant. Accordingly, the MMI date must be affirmed. See Liberty Mutual Ins. Co. v. Fuchs Baking Co., 577 So.2d 603, 606 (Fla. 1st DCA 1991)(apparent error in JCC's finding of MMI date was harmless where no prejudice resulted to appellant).

After concluding her treatment with Dr. Wagner, claimant had a series of independent medical examinations. Apparently unsatisfied with any of the recommendations generated by these examinations, claimant requested chiropractic care on July 19, 1993. On August 11, 1993, the employer authorized three chiropractors. Meanwhile, however, claimant began self-prescribed treatment with Dr. Vannucci on July 29, 1993. Dr. Vannucci continued treating claimant for about...