Smith v. General Parcel Service, Inc.
| Decision Date | 19 August 1997 |
| Docket Number | No. 96-1308,96-1308 |
| Citation | 699 So.2d 741 |
| Parties | 22 Fla. L. Weekly D2008 David Mike SMITH, Appellant, v. GENERAL PARCEL SERVICE, INC., and Associated Industries Insurance Company, Inc., f/k/a Associated Industries of Florida Property & Casualty Trust, Appellees. |
| Court | Florida District Court of Appeals |
Ronald J. Langa of Overchuck & Langa, P.A., Orlando; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
Mary Ann Stiles, Karen M. Smith and Joseph B. Heimovics of Stiles, Taylor & Metzler, P.A., Orlando, for Appellees.
Claimant, David Mike Smith, challenges a final workers' compensation order which denied his claims for authorization of Dr. Rosenberg, a pain psychologist, and attorney's fees. Claimant asserts that the judge of compensation claims (JCC) erred in determining that he was precluded by section 440.13, Florida Statutes, from approving the treating physician's referral to Dr. Rosenberg on the basis that Rosenberg is a psychologist, rather than a physician or medical doctor; that he erred in approving the alternative care that was offered, because treatment with Dr. Rosenberg was in claimant's best interests; and that he erred in denying claimant attorney's fees under the 21-day rule, because alternative care was not timely offered. We agree with claimant that the JCC erred in concluding that Dr. Rosenberg could not be an authorized referral, and, based on that conclusion, we reverse the remaining two points and remand the case for further proceedings.
Claimant, who was employed as a driver, injured his lower back and left leg on August 11, 1992, when he fell after stepping out of a truck. Dr. Imfeld, claimant's treating physical medicine and rehabilitation specialist, diagnosed preexisting spondylolisthesis, which was aggravated by the injury and resultant disc herniation at L5-S1. Dr. Imfeld opined that claimant had reached maximum medical improvement on February 12, 1993, with a seven percent permanent impairment. The 49-year-old claimant performed an extensive job search, but he has not worked since the accident, and he remains in constant pain.
In regard to the claim for authorization of Dr. Rosenberg, claimant testified that he told Dr. Imfeld in March 1995 that because of the pain and frustration resulting from the delay in obtaining physical therapy, he was depressed and had developed a "short fuse."
The only medical evidence admitted at the hearing on this issue was Dr. Imfeld's medical records, wherein his note of January 12, 1995, confirmed that the physical therapy he prescribed was never authorized. Imfeld's note of March 17, 1995, indicates that claimant Dr. Imfeld prescribed Paxil, a medication for depression, and referred claimant to Dr. Leigh Rosenberg, a pain psychologist, who enjoyed a good reputation in assisting chronic pain patients. His April 14, 1995, note observes that there is "still confusion on the psychologist referral." 1 A note dated May 12, 1995, reveals that claimant remained unable to see the requested psychologist, and that the Paxil prescription was renewed. On June 21, 1995, Dr. Imfeld observed that he was awaiting a letter from the carrier authorizing either the Pain Management Program at Florida South or Dr. Bernstein for psychiatric counseling. Imfeld reported that because he was unaware of the reputation of the pain program or Dr. Bernstein, he preferred his referral of claimant to Dr. Rosenberg. On August 8, 1995, claimant still had not seen any psychiatrist or psychologist, and he continued to take Paxil.
In denying claimant's request for authorization of Dr. Rosenberg, the JCC found that a psychologist is not a physician or medical doctor licensed under chapter 458, Florida Statutes; therefore, he could not approve Dr. Imfeld's referral to Dr. Rosenberg as authorized pursuant to the provisions of section 440.13, Florida Statutes. Instead, the JCC approved Dr. Bernstein, a psychiatrist, to conduct an evaluation to determine whether claimant's depression was caused by the industrial injury. Additionally, the JCC denied attorney's fees to claimant based on a finding that the employer and insurance carrier (collectively, the "E/C") were in compliance with section 440.13, because alternative care through the Pain Management Program at Florida South or Dr. Bernstein was timely offered.
Claimant argues that the JCC reached the erroneous conclusion that he could not authorize a psychologist upon a treating doctor's referral, because he applied the 1994 version of section 440.13 rather than the 1992 version that was in effect on the date of the accident. We need not reach...
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Mitchell v. Sunshine Companies
...705 So.2d 636 (Fla. 1st DCA 1998); see also, e.g., City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla. 1962); Smith v. General Parcel Service, 699 So.2d 741 (Fla. 1st DCA 1997). The claimant thus met both of the necessary criteria under section 440.34(3)(b), so as to establish entitlement......
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...705 So.2d 636 (Fla. 1st DCA 1998); see also, e.g., City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla.1962); Smith v. General Parcel Service, 699 So.2d 741 (Fla. 1st DCA 1997). REVERSED and PADOVANO and THOMAS, JJ., concur. 1. Section 440.34(3)(a), Florida Statutes, authorizes an award of......
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...days, or in his relying in part on tests performed at his direction by a licensed clinical psychologist. See Smith v. General Parcel Serv., 699 So.2d 741 (Fla. 1st DCA 1997). We therefore remand with directions that the judge of compensation claims enter an order awarding temporary benefits......