Teimer v. Pixie Playmates, 87-1502
| Decision Date | 23 September 1988 |
| Docket Number | No. 87-1502,87-1502 |
| Parties | 13 Fla. L. Weekly 2105, 13 Fla. L. Weekly 2216 Gertrude TEIMER, Appellant, v. PIXIE PLAYMATES and Cigna, Appellees. |
| Court | Florida District Court of Appeals |
Pursuant to the court's own motion, our original opinion is withdrawn and the following is substituted.
Claimant, Gertrude Teimer, has appealed the final order of the deputy commissioner which denied payment of bills for past and future chiropractic care. The following issues were raised for our review: (1) whether there is competent substantial evidence to support the deputy's rejection of claimant's testimony that she was forced to be initially treated by chiropractor Balduf; (2) whether the employer and carrier, once placed on notice that claimant desired chiropractic care, were statutorily obligated to authorize chiropractic care, and (3) whether the denial of future chiropractic care was proper based upon the finding that past chiropractic treatment had only provided temporary relief. We affirm the deputy's order on point 1, and reverse and remand on points 2 and 3.
Claimant Teimer is a 50-year-old seamstress with a tenth grade education. She was treated by Dr. Balduf, her chiropractor, for back problems as far back as 1974. On April 25, 1986, in the course and scope of her employment, she sustained an injury to her lower back. Shortly thereafter, she reported this injury to her supervisor, Ms. Chapman, and stated that she was going to seek chiropractic care and would return in an hour. Claimant knew the company policy that injuries sustained in on-the-job accidents were to be treated by the company medical doctor, whose office was within walking distance of the work location, but instead desired chiropractic care. Her supervisor advised claimant that she must first go to the company medical doctor, Dr. DeCandido, but claimant sought only chiropractic care from her familiar chiropractor, Dr. Balduf.
Dr. Balduf initially hesitated to treat claimant upon her arrival at his office for when he contacted the employer to obtain authorization, he was advised that appellant would have to first see the company medical doctor. However, the chiropractor found claimant to have acute back pain, and considering it an emergency situation, treated her at his office where she remained immobile from 10 a.m. to 6 p.m. Claimant's husband came to drive her home because she could not drive. She remained in bed for the next week, and was attended in her home by Dr. Balduf.
On April 28, 1986, the supervisor again advised appellant that she would have to see the company medical doctor. Appellant explained to the supervisor that she saw chiropractor Balduf because he would come to her house to provide her with treatment, and she was unable to go out to obtain treatment. She further explained to her supervisor that if Dr. DeCandido would come to her home, appellant would be happy to see him also. On May 5, 1986, when appellant was able to ambulate, she went to see Dr. DeCandido, the company doctor, as required. Dr. DeCandido hospitalized claimant for ten days and prescribed anti-inflammatory pills, muscle relaxers and pain pills, as well as physical therapy. Claimant refused to take the muscle relaxers or pain pills, fearing their effects.
On June 3, 1986, the claimant employee filed a claim for Dr. Balduf's chiropractic treatment for services rendered from April 25, 1986, through May 5, 1986, in the amount of $180. On June 26, chiropractor Balduf wrote the carrier's adjustor, Ms. Brown, and advised her that on the date of the industrial accident claimant could hardly walk into the clinic, and that he had attended claimant all day long, since she could not ambulate. The chiropractor advised the adjustor that claimant was subsequently bed ridden, and that he saw her on April 27, 28, 30, and May 2, 1986, on an emergency basis while at home, in order to enable the claimant to go to the company doctor. Further, Dr. Balduf advised Ms. Brown that the claimant had elected to continue chiropractic treatment and that chiropractic treatment was providing more relief than that provided by the medical doctors. The claims adjuster responded by asserting that only Dr. DeCandido was authorized and that Dr. Balduf's bills would not be covered. The adjuster filed a notice to controvert the claim for chiropractic care, as being unauthorized medical care.
After seeing Dr. DeCandido two or three times per week and receiving physical therapy, the doctor referred claimant to Dr. Sullivan, an orthopedic physician, for a second opinion. Claimant was provided with examinations by two other orthopedic physicians, Dr. Smith and Dr. West, at the expense of the employer and carrier. The medical opinions varied, finding lumbar strain and degenerative disc disease. At no time did the employer and carrier ever authorize chiropractic care. Appellant testified that she had continued to obtain chiropractic treatment from Dr. Balduf while seeing the authorized physicians, because she obtained relief and felt she was getting better.
At the final hearing on the merits of the claim, the deputy found that Dr. Balduf was not authorized, and therefore the past bills of Dr. Balduf totalling approximately $2700 were not the responsibility of the employer and carrier. The deputy found that claimant voluntarily chose to go to an unauthorized doctor, and he rejected claimant's testimony that she had to be treated by Dr. Balduf initially. The deputy found that the relief claimant obtained from Dr. Balduf's treatment was very temporary and that no apparent lasting progress was evident. The deputy determined that the authorized physician Dr. James West, M.D., who suggested an exercise and back strengthening program, should continue to be the authorized physician. The deputy therefore denied the claim for past and future care by chiropractor Balduf.
The employer and carrier argue that claimant willfully and intentionally disobeyed and disregarded the long standing company policy which required all injured employees to initially see Dr. DeCandido, and because of that, she is not entitled to an award of past chiropractic care. This point raises the issue of what impact, if any, a company's policy has on the statutory rights and obligations of the employer and carrier and of the claimant, regarding coverage under the worker's compensation act.
It is undisputed that once injured, claimant ignored...
To continue reading
Request your trial
-
FCCI Mut. Ins. Co. v. Schnupp
...(3)(i), Florida Statutes (Supp.1994). See generally Sieracki v. Pizza Hut, 599 So.2d 678, 679 (Fla. 1st DCA 1992); Teimer v. Pixie Playmates, 532 So.2d 37 (Fla. 1st DCA 1988); Square G. Constr. Co. v. Grace, 412 So.2d 397 (Fla. 1st DCA 1982). But there is no occasion to address the question......
-
Westinghouse Elec. v. Widlan
...alternative chiropractic care to be provided Claimant, for the period of August 15, 1988 and July 3, 1989. See Teimer v. Pixie Playmates, 532 So.2d 37 (Fla. 1st DCA 1988), rev. den., 539 So.2d 475 (Fla.1989); Colace v. Hamlet Estates, Ltd., 573 So.2d 994, 997 (Fla. 1st DCA 1991) (E/C's repe......
-
Polk County Bd. of Com'rs v. Varnado
...require another authorization, or to seek authorization by the JCC for a physician of the claimant's own choice. Teimer v. Pixie Playmates, 532 So.2d 37 (Fla. 1st DCA 1988), rev. denied, 539 So.2d 475 There is substantial evidence in the record which would support the decision of the JCC co......
-
Klug v. Popeye's, 91-01022
...Section 440.13(2), Florida Statutes; Bennett v. H & L Builders, Inc., 567 So.2d 33, 34 (Fla. 1st DCA 1990), citing Timer v. Pixie Playmates, 532 So.2d 37 (Fla. 1st DCA 1989); Jackson v. Publix Supermarkets, Inc., 520 So.2d 50, 51 (Fla. 1st DCA The order appealed from is reversed, and this c......