Wal-Mart Stores, Inc. v. Liggon

• Decision Date: 15 February 1996
• Docket Number: No. 95-257,WAL-MART,95-257
• Citation: 668 So.2d 259
• Parties: 21 Fla. L. Weekly D425 STORES, INC. and Claims Management, Inc., Appellants, v. Linda LIGGON, Appellee.
• Court: Florida District Court of Appeals

Page 259

668 So.2d 259

21 Fla. L. Weekly D425

WAL-MART STORES, INC. and Claims Management, Inc., Appellants, v. Linda LIGGON, Appellee.

No. 95-257.

District Court of Appeal of Florida First District.

Feb. 15, 1996.

An appeal from an order of Judge of Compensation Claims, Michael J. DeMarko.

William H. Rogner of Hurley & Rogner, P.A., Orlando, for appellants.

Barry Silber, Pensacola, for appellee.

KAHN, Judge.

On October 10, 1991, the claimant, Linda Liggon, sustained a compensable injury when she was involved in a motor vehicle accident while on company business for the employer, Wal-Mart Stores, Inc. At the time of the accident, Liggon was forty-eight years old. Following her injury, Liggon was treated by Dr. Fletcher Eyster, a neurosurgeon, who determined that Liggon had a cervical injury at the fifth and sixth vertebral levels. Dr. Eyster attempted to surgically repair the damaged discs by using a bone graft; however, the bone graft did not fuse Liggon's cervical spine as expected.

On December 7, 1992, Dr. Marcus Schmitz, also a neurosurgeon, performed additional surgery, including another fusion. Dr. Schmitz placed Liggon at maximum medical improvement (MMI) as of October 1, 1993, with an 11 percent neurosurgical impairment based on the American Medical Association (AMA) Guidelines for Disability. Dr. Schmitz also believed that Liggon had "significant psychological overlay." Although Dr. Schmitz did not impose specific restrictions himself, he approved sedentary-type job descriptions submitted to him by Wal-Mart and indicated that such approval was based on strict adherence to those descriptions which included the following elements: lifting of no more than five pounds; limited standing alternating with sitting; limited walking; no bending, squatting, kneeling, climbing, pushing or pulling; minimal hand manipulation; no lifting; no carrying; and accommodations for a chair and a telephone headset, if needed.

Liggon requested psychiatric treatment and the E/C sent her to Dr. Theodore Marshall for an independent medical examination (IME). Dr. Marshall apparently ¹ diagnosed major depression and chronic pain syndrome. In October 1993, Liggon began treating with Dr. Peter Szmurlo, who practices psychiatry and pain management. According to Dr. Szmurlo, Liggon had developed a depressive disorder and pain syndrome as a result of her accident. Dr. Szmurlo released Liggon to job search status as of March 1, 1994, and placed her at MMI as of July 6, 1994, with a 30 percent psychiatric impairment under the Minnesota Guidelines. Dr. Szmurlo also believed that Liggon required a chair and a headset to return to work, and he encouraged Liggon to return to work assuming the employer would make these accommodations.

Beginning in May 1994, Liggon also received treatment from Dr. Robert Sackheim, a board certified anesthesiologist with expertise in pain management. Dr. Sackheim placed Liggon at MMI as of July 12, 1994, with a 13 percent permanent partial impairment under the AMA Guidelines. Dr. Sackheim opined that Liggon could return to part-time work, four hours per day, but she needed to function at a sedentary level, should have a comfortable chair, and, to minimize movement of her neck, she should use a headset for answering the phone, if required to do so. The restrictions imposed by Dr. Sackheim included: no lifting over five to ten pounds or on a highly repetitive basis; sit and stand as needed; no repetitive bending, squatting, or kneeling; no pushing and pulling heavy items; and no frequent reaching above her head.

The E/C paid benefits to Liggon through November 1, 1993. On April 18, 1994, Liggon filed a Petition for Benefits seeking temporary total disability (TTD) and temporary partial disability (TPD) from March 31, 1993, and continuing. The petition indicates that Liggon reached MMI on October 1, 1993, according to Dr. Schmitz. The pretrial stipulation, filed with the JCC on July 6, 1994, indicates that Liggon was also seeking permanent total disability (PTD) from the date of MMI and continuing. A motion hearing subsequently took place resulting in the entry of a nonfinal order denying the E/C's request for a second IME, and a final hearing occurred on November 21, 1994, before the JCC.

At the final hearing, Liggon testified that Wal-Mart had never offered her a job within her limitations and restrictions. Liggon further testified that, in the fall of 1993, the E/C had sent her a letter advising her of her obligation to do a work search and that she began to do her work search. She indicated that she performed job searches on a "regular daily basis," but none of the prospective employers offered her a job. She also testified that on June 30, 1994, she went to Wal-Mart and inquired about employment within her restrictions. She spoke with Elwin Jones, the store manager, and told Jones she needed a special chair and a head set. According to Liggon, Wal-Mart had offered her a job in the ladies' fitting room, but Jones told her on June 30 that "it was too much of a hassle to provide that equipment." Liggon denied that Jones discussed an alternate job that had become available in the men's fitting room. She further testified that she was aware that her doctor had placed her at MMI as of July 1994 and had indicated that she could go back to work, but that she had not done any job searches and had not made any effort to go back to Wal-Mart after June 30.

Elwin Jones also testified at the hearing. He indicated that he had worked with Gerri Pennachio, a rehabilitation specialist, and Brian Walsh, an assistant manager, in an attempt to place Liggon in a job at Wal-Mart that would accommodate her restrictions. Jones testified that although he had initially thought a position in the ladies' fitting room would be appropriate, he decided prior to June 30 that the men's fitting room job would be "a lot less stressful." He testified that on June 30, when Liggon came to the store, he told her that he wanted to place her in the men's fitting room because she would not have to answer the phone and "it would be a lot easier for her to do." According to Jones, the men's fitting room job is still available, and it is a job all Wal-Mart stores are required to have.

In the order entered December 21, 1994, the JCC found that "the unrebutted evidence clearly indicates the claimant is only able to engage in part-time sedentary work." The JCC determined that Liggon had therefore met her burden of proof under section 440.15(1)(b), Florida Statutes (1991), to show that she is incapable of performing light work on an uninterrupted basis. The JCC also found that, considering her restrictions, the limited work search performed by Liggon was adequate and that, on most occasions, she was under a doctor's orders not to conduct a work search. The JCC further indicated that although evidence of a good faith work search is usually an essential element of proving a PTD claim, "in cases where the injured employee is so physically disabled that a job search would amount to only a futile gesture, a formal work search is unnecessary." The JCC found that the employer's offer of a part-time job as a men's dressing room attendant constituted an offer of sheltered employment. The JCC concluded that Liggon reached MMI from a neurosurgical standpoint on October 1, 1993, with an 11% permanent partial impairment (PPI), and reached psychiatric MMI on July 6, 1994, with a 30% psychiatric PPI. Based on the medical evidence, the JCC awarded TPD from November 1, 1993, through July 6, 1994, ² and PTD from July 7, 1994, "to date for as long as she is legally entitled to such benefits." The E/C have appealed. Because the JCC erred in awarding PTD benefits, we reverse.

I. IME Request

As a preliminary matter, we note that the JCC erred in denying the E/C's request for a second IME. Specifically, the JCC improperly relied on Roberts v. Ben Hill Griffin, Inc., 629 So.2d 236 (Fla. 1st DCA 1993), for the proposition that the Legislature restricted the scope of an IME to the four situations listed in section 440.13(2)(b), Florida Statutes (1991). That statute contains the following provisions:

The right to conduct an independent medical examination includes, but is not limited to, instances when the authorized treating physician has not provided current medical reports; determining whether overutilization by a health care provider has occurred; whether a change in health care provider is necessary; or whether treatment is necessary or the employee appears not to be making appropriate progress in recuperation. The employer or carrier has the right to schedule an independent medical examination with a health care provider of its choice, at a reasonable time to assist in determining this status. The health care provider performing the independent medical examination shall not be the health care provider to provide the treatment or followup care, unless the carrier or self-insurer and the employee so agree or unless an emergency exists.

(emphasis added). In Roberts, the JCC granted the E/C's motion for a second IME without first conducting a hearing. 629 So.2d at 237-38. Although the Roberts court noted that "the instant motion does not set forth any of the statutory grounds in support of a second IME, nor indeed any facts in support thereof," the court concluded that "[b]ecause there were no facts in the motion from which the JCC could 'scrutinize' the reasonableness of a second IME ..., we find that the failure to hold a hearing on the motion after the notice required by Rule 4.140(a) was not harmless error." Id. at 238. The Roberts court thus based its decision not on a requirement that the E/C set forth one of the statutory grounds in support of an IME, but on the requirement that the JCC have a hearing on the motion to compel, particularly when the motion does not set forth a statutory ground and does not contain any facts regarding the reasonableness...