Myers v. Sherwin-Williams Paint, Co.

• Decision Date: 17 February 2003
• Docket Number: No. 1D02-0747.,1D02-0747.
• Citation: 838 So.2d 608
• Parties: Cathaleen MYERS, Appellant/Cross-Appellee, v. SHERWIN-WILLIAMS PAINT, CO. and Gallagher Bassett Servicing, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

838 So.2d 608

Cathaleen MYERS, Appellant/Cross-Appellee,
v.
SHERWIN-WILLIAMS PAINT, CO. and Gallagher Bassett Servicing, Appellees/Cross-Appellants

No. 1D02-0747.

District Court of Appeal of Florida, First District.

February 17, 2003.

Rehearing Denied March 5, 2003.

838 So.2d 610

Joy E. Greyer, West Palm Beach, for Appellant/Cross-Appellee

Kevin R. Clarke, Esquire and Michael A. Edwards, Esquire of Michael A. Edwards, P.A., West Palm Beach, for Appellees/Cross-Appellants.

BENTON, J.

In her second appearance before this court, Cathaleen Myers contends that the judge of compensation claims erred in denying her certain medical benefits and in awarding less than full indemnity benefits. As to denial of medical benefits, we affirm, with one exception. We reverse and remand for further proceedings regarding indemnity benefits, however, as well as regarding medical benefits owed on account of an industrial injury to the lumbar spine.

As described in our prior opinion,¹ Ms. Myers had two industrial accidents while she was working for Sherwin-Williams Paint Company (Sherwin-Williams) before she was involved in an automobile accident that had nothing to do with work. See Myers v. Williams, 770 So.2d 1246, 1247 (Fla. 1st DCA 2000). Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the "major contributing cause" of her injuries and disability. We reversed and remanded, holding that "[t]he claimant is entitled to any medical or compensation benefits attributable to either (or both) of the work-related accidents." Myers, 770 So.2d at 1249.

I.

On remand, a successor judge of compensation claims found that appellant's head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal conditions were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of appellant's need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.²

The employer of a claimant who suffers an industrial injury must "furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury

838 So.2d 611

or the process of recovery may require." § 440.13(2)(a), Fla. Stat. (Supp.1996). "[M]edical care is properly awarded pursuant to section 440.13(2)(a) when the need for such care arises from the combined effect of industrial and nonindustrial conditions. See Jordan v. Florida Industrial Commission, 183 So.2d 529 (Fla.1966); Glades County Sugar Growers v. Gonzales, 388 So.2d 333 (Fla. 1st DCA 1980)." Copeland v. Bond, 528 So.2d 458, 459 (Fla. 1st DCA 1988). "As Gonzales indicates, the employer is responsible for `treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury.'" Id. See Newhouse v. Volusia County Sch. Bd., 474 So.2d 1222, 1224 (Fla. 1st DCA 1985). We thus approve the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached

But the order under review also made Sherwin-Williams responsible for half of the expense of treating Ms....