Walgreen Co. v. Carver

• Decision Date: 30 August 2000
• Docket Number: No. 1D99-4411.,1D99-4411.
• Citation: 770 So.2d 172
• Parties: WALGREEN COMPANY and Kemper Insurance Company, Appellants, v. Lori CARVER, Appellee.
• Court: Florida District Court of Appeals

770 So.2d 172

WALGREEN COMPANY and Kemper Insurance Company, Appellants, v. Lori CARVER, Appellee.

No. 1D99-4411.

District Court of Appeal of Florida, First District.

August 30, 2000.

Rehearing Denied October 26, 2000.

Eric R. Eide, Esquire, and John M. Crotty, Esquire, of Grower, Ketcham, More, Rutherford, Noecker, Bronson, Siboni & Eide, P.A., Orlando, for Appellants.

Thomas E. Thoburn, Esquire, and Bill McCabe, Esquire, of Shepherd, McCabe & Cooley, Longwood, for Appellee.

BENTON, J.

Walgreen Company and Kemper Insurance Company appeal a final order awarding Lori Carver permanent total disability benefits, supplemental benefits, palliative care with Dr. Ramirez, costs and attorney's fees. The order rests on a finding that Ms. Carver suffers from trauma-induced fibromyalgia, despite the contrary opinion of the expert medical advisor (among others). We reverse.

While working on May 25, 1996, Ms. Carver, then thirty-five years old, wrenched her back in removing a "merchandise tote" from a stack in a Walgreen stockroom. She testified that the tote was heavier than she had expected. Not one of the doctors who examined her was of the opinion that she was unable to work, once she reached maximum medical improvement on September 16, 1996.

For purposes of the Workers' Compensation Law, permanent, total disability entails catastrophic injury as defined in section 440.02, Florida Statutes (1995). See § 440.15(1)(b), Fla. Stat. (1995). In the absence of one of the permanent impairments listed in section 440.02, the Legislature has adopted the social security disability standard for catastrophic injury. See § 440.02(34)(f), Fla. Stat. (1995); Florida Distillers v. Rudd, 751 So.2d 754, 756 (Fla. 1st DCA 2000); Alachua County Adult Detention Ctr. v. Alford, 727 So.2d 388, 391 (Fla. 1st DCA 1999). The social security disability standard employs a fivestep test. See 20 C.F.R. § 404.1520; Foote v. Chater, 67 F.3d 1553, 1557 (11th Cir.1995).

Ms. Carver does not have a listed impairment. Her entitlement to workers' compensation permanent total disability benefits hinges on the fourth and fifth steps of the social security disability standard, which ask whether she can perform her past work (which included work as a cosmetologist) and, if not, whether, taking into account her age, education and past work experience, she can do other work available in the national economy. See 20 C.F.R. § 404.1520(e) & (f); Foote, 67 F.3d at 1557. That Ms. Carver had been denied social security benefits as of the time of the hearing before the judge of compensation claims (whereupon she requested a hearing before a federal administrative law judge) is not dispositive. See, e.g., Rudd, 751 So.2d at 756

.

The only testimony in the present proceeding that Ms. Carver was permanently, totally¹ disabled came from a vocational expert, William Hoeffner, who indicated that an assumed diagnosis of fibromyalgia was a "key factor" in his evaluation of Ms. Carver's employability. He testified, however, that Ms. Carver would, in his opinion, be capable of sedentary or light work, if the judge of compensation claims accepted the opinions of the doctors who concluded that Ms. Carver did not suffer from fibromyalgia.

Because of conflict in the medical opinion, an expert medical advisor was appointed. See Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997)

. The expert medical advisor, Dr. Imfeld, initially reported:

She has pain from head to toe in the back.... She was tender to very light palpation in most of the areas in the lumbar paraspinals, quadratus lumborum, upper buttock, greater trochanteric region, and sciatic notch area. She was tender in all those places with very, very light touch. She did have positive Waddell's. She was positive for tenderness, overreaction, regionalization, distraction and simulation maneuvers. Simulation maneuvers was [sic] positive with rotation of the whole trunk and minimal pressure over the top of the head.

After this initial examination, he concluded that Ms. Carver "may have a non-physiological reason for" her apparent pain but that there was "no objective reason to show that she could not work in the medium category."

Dr. Imfeld testified that he had understood that the purpose of the initial examination was to determine whether Ms. Carver needed further treatment for her back before returning to work. When asked to perform a second examination specifically to ascertain whether she suffered from fibromyalgia, he did so and reported that—unlike the 125 to 175 people he had personally treated for fibromyalgia over a period of eleven years—Ms. Carter did not meet the criteria.

In the expert medical advisor's opinion, Ms. Carver exhibited significant signs of pain magnification.² He testified that Ms. Carver had reported tenderness to palpation in areas where fibromyalgia would not produce pain. In addition to Dr. Imfeld, Dr. Kurtz and Dr. Cooper also testified that Ms. Carver exhibited significant indications of pain magnification, non-physiological symptoms and symptom and disability exaggeration. A functional capacity evaluation ordered by Dr. Gosselin reached the same conclusion.³

An expert medical advisor's opinion is presumed to be correct and may only be rejected on the basis of clear and convincing evidence. See § 440.13(9)(c), Fla. Stat. (1999). We have said that an expert medical advisor's opinion has "nearly conclusive effect." Pierre v. Handi Van, Inc., 717 So.2d 1115, 1117 (Fla. 1st DCA 1998) (dicta). It creates a presumption that can be overcome only by "evidence... of a quality and character so as to produce in the mind of the JCC a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established [and therefore the falsity or inaccuracy of the expert medical advisor's opinion]. Slomowitz [v. Walker], 429 So.2d [797] at 800 [(Fla. 4th DCA 1983)]. See also Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So.2d 986, 988 (Fla. 1st DCA 1991)

." McKesson Drug Co. v. Williams, 706 So.2d 352, 353 (Fla. 1st DCA 1998).

The judge of compensation claims nevertheless rejected the expert medical advisor's opinion here as "impaucible [sic] and without credibility." According to the order under review, the basis for rejection was twofold: Dr. Imfeld did not specifically rule fibromyalgia in or out on first examining Ms. Carver, and he did not produce a medical text or article specifically supporting his statement that "red flags are raised" with respect to a diagnosis of fibromyalgia when a patient reports tenderness to light touch all over her body rather than only upon deep muscle palpation at diagnostically significant points.

But Dr. Imfeld's failure to address fibromyalgia as such during the initial examination logically reflects as much on the drafting of the order appointing an expert medical advisor—which makes no reference to fibromyalgia—as on the...