State, Dept. of Public Health, Div. of Risk Management v. Wilcox

• Decision Date: 15 November 1984
• Docket Number: No. AY-85,AY-85
• Parties: STATE of Florida, DEPARTMENT OF PUBLIC HEALTH, DIVISION OF RISK MANAGEMENT, Appellants, v. Muriel WILCOX, Appellee.
• Court: Florida District Court of Appeals

Page 1207

458 So.2d 1207

STATE of Florida, DEPARTMENT OF PUBLIC HEALTH, DIVISION OF RISK MANAGEMENT, Appellants, v. Muriel WILCOX, Appellee.

No. AY-85.

District Court of Appeal of Florida First District.

Nov. 15, 1984.

Rehearing Denied Dec. 10, 1984.

Steven Kronenberg of Adams, Kelley & Kronenberg, and James J. Traitz, Miami, for appellants.

Alfred D. Bieley, Miami, for appellee.

SMITH, Judge.

The employer/carrier (E/C) appeal the deputy commissioner's order awarding claimant Muriel Wilcox (Wilcox) temporary total and permanent total disability benefits (TTD, PTD), costs, interest, and medical expenses. The E/C contend the deputy erred in awarding Wilcox TTD and PTD benefits. The E/C also maintain that it should not be required to pay the medical expenses incurred by Wilcox subsequent to her second, non-compensable, accident. We reverse and remand for further proceedings.

Wilcox, age 55, with 32 years experience as a nurse, was employed by the appellant Department of Public Health as a public health nurse at the time of a work-related automobile accident on August 3, 1978. Examination at the hospital revealed injuries to her back, hips, and legs. Wilcox began receiving treatment for these injuries from Dr. Green, whose examination on August 10, 1978, revealed the following: Wilcox was capable of standing erect and performing satisfactorily a heel-to-toe walk test; however, she exhibited mild spasm and tenderness in the L4-5 and L-5, S-1 regions of her lower back. Straight leg raising tests disclosed mild pain, although no disc or sciatic nerve problems were noted by Dr. Green. Finally, Dr. Green characterized his neurological examination of Wilcox at this time as producing essentially normal results. Dr. Green released Wilcox to return to work in January 1979. She did so on January 16, 1979.

However, she continued to complain of lower back and leg pain, and as a result she began consulting Dr. Russell in mid-January 1979. Dr. Russell testified below that he found, upon examination of Wilcox in January 1979, that she suffered tenderness over the spinous processes at L4-5 and S-1, as well as lower back pain during straight leg raising tests to eighty degrees with either leg. He characterized his findings as indicating lumbar radiculitis secondary to discogenic disease, possibly spondylosis. At the hearing below, Wilcox testified that after her return to work in January of 1979, she missed a number of days and half-days of work, attributing these absences to continued lower back and leg pain. Her job performance during this period of time apparently suffered; she testified below that her supervisor gave Wilcox lower job ratings because she was no longer able to perform all of her duties.

Wilcox suffered a second--non-compensable--automobile accident on December 6, 1979. Following this accident, she was examined by Dr. Russell on December 17, 1979. He found that Wilcox exhibited the same symptomatology as after the August 3, 1978 compensable accident. Dr. Russell also testified that he was not able to separate the two accidents in terms of their impact on Wilcox's ability to work. Even so, he was of the opinion that Wilcox was totally disabled, and had reached maximum medical improvement (MMI) as of August 25, 1982. He noted that Wilcox had undergone a laminectomy, performed by Dr. Guido at South Miami Hospital, on January 27, 1981, but that the surgery had not been successful in relieving her lower back or leg pain.

Also offered into evidence below was three depositions by Dr. Green. He testified that Wilcox's complaints of lower back and leg pain began in 1976, and that as of May 28, 1976, she suffered five percent (5%) impairment of the body as a whole due to lumbosacral sprain syndrome superimposed on mild degenerative arthritis of the lumbosacral spine. After examining Wilcox following her non-compensable accident, Dr. Green rated her impairment at that time as twenty percent (20%) of the body, with a portion of that rating attributable to the compensable accident, and a portion to the non-compensable accident.

In analyzing the previously-discussed evidence, the deputy rejected Dr. Green's deposition testimony relating to Wilcox's impairment rating after her first, compensable, automobile accident, noting that Dr. Green's opinions were inconsistent with a report he apparently filed with the E/C subsequent to his January 1979 examination of Wilcox. This report categorized Wilcox as totally disabled from August 3, 1978, and continuing through the date of the report. The deputy further found that Wilcox had lost confidence in Dr. Green professionally, and was justified in seeking treatment from Dr. Russell because her employment supervisor had encouraged her to do so. In this regard, the deputy found that the carrier, in a letter dated May 28, 1981, promised to accept responsibility for any charges incurred by Wilcox in treatment from Dr. Russell, since Wilcox's supervisor authorized the treatment. The deputy also accepted the opinion of Dr. Russell that Wilcox was totally disabled from future employment, and thus found that she was entitled to both TTD and PTD benefits, even though the deputy specifically stated:

In considering the testimony of Dr. Green and Dr. Guido by Deposition and Dr. Russell's Deposition as well as in person, I find that I am unable to apportion the extent of the impairment and injury sustained by Mrs. Wilcox secondary to her noncompensable accident of December 6, 1979....

Finally, the deputy found that Wilcox was entitled to have the E/C pay for the medical expenses she incurred while under the care of Drs. Guido and Russell.

The E/C first assert that the deputy's order functionally effectuated an improper reverse merger in awarding Wilcox TTD and PTD benefits. We agree. A "forward" merger is properly found if a claimant suffers from a pre-existing permanent impairment which combines with a later compensable injury to produce a more severe permanent disability in the claimant than would otherwise have existed. Bordo Citrus Products v. Varnadore, 395 So.2d 260 (Fla. 1st DCA 1981); American Can Co. v. Tomasek, IRC Order 2-3365 (February 23, 1978), cert. denied, 368 So.2d 1375 (Fla.1979). A "reverse" merger, on...