Rolle v. Picadilly Cafeteria

• Citation: 573 So.2d 94,16 Fla. L. Weekly 134
• Decision Date: 03 January 1991
• Docket Number: No. 90-41,90-41
• Parties: 16 Fla. L. Weekly 134 Catherine ROLLE, Appellant, v. PICADILLY CAFETERIA, Employer, and Old Republic Insurance Co., Carrier, Appellees.
• Court: Court of Appeal of Florida (US)

Page 94

573 So.2d 94

16 Fla. L. Weekly 134

Catherine ROLLE, Appellant, v. PICADILLY CAFETERIA, Employer, and Old Republic Insurance Co., Carrier, Appellees.

No. 90-41.

District Court of Appeal of Florida,

First District.

Jan. 3, 1991.

Stephanie S. Collison, and J. Michael Brennan, Co-Counsel, Fort Pierce, for appellant.

George H. Muller, of Brennan, Hayskar, Jefferson & Gorman, P.A., Fort Pierce, for appellees.

JOANOS, Judge.

Claimant in this workers' compensation case appeals an order of the judge of compensation claims. The three points presented for review are (1) the judge's finding that claimant reached maximum medical improvement on November 1, 1988, with no limitations or residual permanent impairment; (2) the judge's refusal to authorize a chiropractic evaluation or care; and (3) the judge's denial of temporary partial disability or wage loss benefits from November 2, 1988, through August 31, 1989. We reverse the finding that maximum medical improvement was attained by November 1, 1988.

Claimant was injured May 20, 1988, in a slip and fall accident while working as a cook for Picadilly Cafeteria. Treatment was initially provided at a walk-in clinic. On June 27, 1988, claimant was referred to Dr. Floyd, orthopedic surgeon, with complaints of back pain and neck and shoulder pain. Dr. Floyd's initial impression was lumbosacral strain; he treated claimant on several occasions and ordered tests of claimant's lumbar spine, i.e., an EMG, a CT scan, and a lumbar thermogram. The test results were normal. No tests were ordered of claimant's cervical area. Due to her persistent complaints, Dr. Floyd referred claimant to Dr. Barrett, a neurosurgeon. Dr. Barrett's neurological examination yielded normal findings. Therefore, he made no recommendations for treatment.

Dr. Floyd's deposition was taken October 15, 1989. He opined retrospectively that claimant reached maximum medical improvement as of November 1, 1988, with no permanent impairment. Dr. Floyd acknowledged that the EMG study which he ordered had been not completed, due to muscle spasms claimant experienced when the test was attempted. A second EMG was not requested. Dr. Floyd had treated claimant with muscle relaxants and anti-inflammatory medications, a TENS unit, and physical therapy for her lumbar area. No physical therapy was prescribed for her cervical area. On September 20, 1988, Dr. Floyd had released claimant to work with restrictions on lifting, bending, and stooping. On November 1, 1988, he had released claimant to regular duty with no restrictions. Claimant was last seen by Dr. Floyd on December 13, 1988. At that time, her chief complaints were of pain in her left shoulder and low back area, primarily on the left side. At the deposition taken some ten months later, Dr. Floyd stated he would defer to the medical doctor presently treating claimant with regard to her current status.

Dr. Kahn, a neurologist, began treating claimant on January 17, 1989. Claimant consulted Dr. Kahn because she felt other doctors were not dealing with her left shoulder pain. Dr. Kahn's neurological examination revealed a decrease in pinprick sensation on the left side of claimant's body. He treated claimant with pain medication and anti-inflammatory drugs. On January 26, 1989, claimant reinjured her back and was treated at the emergency room. Dr. Kahn's deposition of March 13, 1989, reflects that claimant had not reached maximum medical improvement. He further stated that claimant was able to work, but placed weight limitations on lifting. Dr. Kahn also stated that claimant continued to need medical care for her symptoms.

On April 3, 1989, the parties filed a stipulation and joint petition for an order granting claimant's previously filed claim for additional orthopedic/psychiatric/neurological care. Pursuant to the stipulation, employer/carrier agreed to authorize Dr. Kahn's care, nunc pro tunc, and to pay his bills in accordance with the fee schedule. In addition, employer/carrier agreed to provide claimant with psychiatric and orthopedic care. On April 20, 1989, the judge of compensation claims entered an order consistent with the parties' stipulation.

Although claimant continued treatment with Dr. Kahn, and received physical therapy three times a week, she experienced increased pain and weakness in her left arm and shoulder. When Dr. Kahn saw claimant on May 30, 1989, she reported that she attempted to return to work, and developed a more severe neck pain and an increase in low back pain. She was again treated at the emergency room. Dr. Kahn's examination revealed severe limitation of motion of claimant's neck, with tenderness in the back of the neck. On June 6, 1989, claimant again advised Dr. Kahn that her attempt to return to work at the cafeteria had resulted in severe continuing pain.

Dr. Kahn diagnosed claimant's condition as cervical sprain. On May 30, 1989, Dr. Kahn gave claimant a disability slip, restricting her work to two-hour increments, to be followed by a thirty minute rest, and placed limitations on lifting, repetitive bending, stretching and pulling, or standing for long periods of time. He stated that claimant reached maximum medical improvement from a neurological standpoint as of July 31, 1989, with a four percent permanent impairment of the body as a whole attributable to the cervical sprain, and a five percent permanent impairment of the body as a whole attributable to her low back condition, in accordance with the American Medical Association guidelines.

On October 10, 1989, at the instance of employer/carrier, Dr. Coleman performed a neurological examination, which included nerve...