Myers v. Sherwin Williams, et al

• Decision Date: 23 October 2000
• Citation: 770 So.2d 1246
• Parties: (Fla.App. 1 Dist. 2000) CATHALEEN MYERS, APPELLANT, v. SHERWIN WILLIAMS AND GALLAGHER BASSETT SERVICES, APPELLEES. NO. 1D99-3361.
• Court: Florida District Court of Appeals

Page 1246

770 So.2d 1246 (Fla.App. 1 Dist. 2000)

CATHALEEN MYERS, APPELLANT, v. SHERWIN WILLIAMS AND GALLAGHER BASSETT SERVICES, APPELLEES.

NO. 1D99-3361.

DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT.

October 23, 2000.

Rehearing Denied Nov. 22, 2000.

An appeal from an order of the Judge of Compensation Claims. Howard Scheiner, Judge.

Joy E. Greyer, Miami, for Appellant.

Kevin R. Clarke of the Law Office of Micheal A. Edwards, West Palm Beach, for Appellees.

Webster, J.

In this workers' compensation case, the claimant seeks review of an order denying her claim for benefits. In that order, the judge of compensation claims found that the claimant had reached maximum medical improvement, with no impairment, following two work-related accidents before she was involved in a subsequent non-work-related accident; and that the non-work-related accident was the major contributing cause of her injuries and need for continued treatment. The claimant argues that there is no competent, substantial evidence to support the finding that she had reached maximum medical improvement, with no impairment, before the non-work-related accident; and that it was error to apply the major contributing cause test. We agree and, accordingly, reverse.

The claimant was involved in a work-related accident on April 30, 1996, hitting her head against the window of the car she was driving. She sought medical attention, complaining of pain in her upper back and thoracic spine. She had a second work-related accident on May 6, 1996, while lifting a five-gallon drum of paint thinner. She again sought medical attention, complaining of low-back pain as well as continued pain in the upper back and cervical spine. On June 5, 1996, the claimant was involved in a non-work-related auto accident. The judge of compensation claims found that the claimant had reached maximum medical improvement, with no impairment, before the non-work-related accident. He found, further, that the non-work-related accident was the major contributing cause of the injuries for which the claimant was seeking treatment.

The finding that the claimant had reached maximum medical improvement, with no impairment, before the non-work-related accident was based entirely upon the deposition testimony of Dr. Leslie Cohen, a chiropractor, who saw the claimant on May 22, 24 and 29, 1996. Every other medical provider who expressed an opinion was of the view that the claimant had not reached maximum medical improvement at the time of the non-work-related accident.

Dr. Cohen diagnosed the claimant as suffering from "cervical pain, lumbar pain and vertigo" that "certainly could have been causally related" to the accidents that occurred at work. Dr. Cohen testified that she placed the claimant at maximum medical improvement as of May 29, 1996 with no impairment. However, it is clear from both her office notes and her testimony that Dr. Cohen did not believe that the claimant was sufficiently recovered to return to work without restrictions. In fact, she testified that as of May 29, she "had [the claimant] for light duty, no lifting until seen by another designated physician." Such testimony is irreconcilable with a finding of maximum medical improvement. In the first place, given the work restrictions imposed, either the claimant was not at maximum medical improvement or she had a permanent impairment. Moreover, a referral to another health care provider is inconsistent with maximum medical improvement. See, e.g., D'Andrea v. Wal-Mart Stores, Inc., 711 So. 2d 1373 (Fla. 1st DCA 1998) (the evidence did not support a finding that the claimant had reached maximum medical improvement at the time her treating physician released her to return to work when, at the same time, the physician also referred her to another health care provider).

Because of the inconsistencies in Dr. Cohen's testimony, her testimony will not support a finding that the claimant had reached maximum medical improvement, with no impairment, before the non-work-related accident. The remaining expert medical testimony was to the effect that the claimant had not reached maximum medical improvement at the time of the non-work-related accident. Accordingly, the finding of the judge of compensation claims regarding maximum medical improvement is not supported by competent, substantial evidence, and must be set aside.

The judge of compensation claims denied relief based upon a finding that the non-work-related accident was the major contributing cause of the claimant's injuries and need for treatment. The claimant argues that the concept of major contributing cause has nothing to do with a proper analysis of her...