Walker v. Allied Septic Tanks

• Decision Date: 15 March 1988
• Docket Number: No. BT-31,BT-31
• Citation: 13 Fla. L. Weekly 688,522 So.2d 456
• Parties: 13 Fla. L. Weekly 688 Isaac WALKER, Appellant, v. ALLIED SEPTIC TANKS and CNA Insurance, Appellees.
• Court: Florida District Court of Appeals

Page 456

522 So.2d 456

13 Fla. L. Weekly 688

Isaac WALKER, Appellant, v. ALLIED SEPTIC TANKS and CNA Insurance, Appellees.

No. BT-31.

District Court of Appeal of Florida First District.

March 15, 1988.

William T. Roshko and Michael M. O'Brien of O'Brien & Hooper, Orlando, for appellant.

Wendell J. Kiser, Orlando, for appellees.

WENTWORTH, Judge.

This is an appeal from a March 25, 1987 workers' compensation order denying authorization and payment for past and future chiropractic care.

We reverse because the deputy's denial of future and past medical care, without determination of date of maximum medical improvement, is improperly based solely upon the "acceptance of the medical opinions expressed in reports [rendered prior to July 1984] and the ... determination that the claimant's testimony concerning his continuing complaints is not credible." The claim for past medical care, so far as shown by evidence before the deputy, was predicated on a reasonable need while awaiting a hearing following carrier refusal to authorize care of the kind requested by claimant. ¹ The only current medical opinions in the record support a current need, and in the context here are not reasonably contradicted by opinions some three years antecedent. Nor is the bare credibility conclusion, as further discussed infra, supported by any significant factual references in the order or record.

After claimant's September 13, 1983 accident, the appellee provided treatment that included the services of three orthopedic physicians and one neurosurgeon. Claimant expressed his dissatisfaction with this treatment both in motions to change physicians and in his testimony in the instant case. He also filed a claim for authorization of chiropractic treatment, which was denied without prejudice when claimant failed to appear at a hearing on the claim. He filed a second such claim on May 20, 1986, and while the claim was pending, began chiropractic treatments with Dr. Exum's clinic. ²

In the order denying authorization and payment of the bills, the deputy stated ³ in effect that claimant's testimony was suspect and lacked credibility, and that his continuing complaints were not credible. He found that the opinion of the chiropractors that the accident caused claimant's present symptoms was based on a history taken from claimant, which the deputy found not credible. The deputy accepted the opinion of claimant's earlier physicians, rejected the opinion of the chiropractors as to need for care, and found that claimant had recovered from his accident.

The record contains medical reports of doctors who examined and treated claimant in 1983 and the first half of 1984. He underwent several diagnostic procedures including a lumbar myelogram in October and November 1983, which did produce some positive findings. Dr. Pearson's notes express his opinion on February 17, 1984, that claimant had reached maximum medical improvement as of that date with no permanent physical impairment. He continued to see claimant, however, and a notation for March 6, 1984 states, "I am at a loss as to the etiology of his symptomatology at this point and we will ask for a second opinion." Claimant saw Dr. Stanford, who sent him to Dr. Brunson. Dr. Brunson reviewed claimant's records and noted that an electromyelogram performed in February 1984 was within normal limits. He also noted that claimant "appears in a moderate amount of distress" and had some limited motion and moved rather slowly at times, as of April 12, 1984. His "impression" was spinal stenosis with nerve irritation. Claimant was sent back to Dr. Stanford, who noted that there was "no essential change on physical findings from those made on 3-23-84" and added, "I have been unable to help this patient." Further notes from Dr. Pearson include a notation on June 1, 1984, that claimant complained of soreness and "I see no abnormal objective findings." A June 22, 1984 notation states that claimant had had soreness in the neck and low back but "[c]linically, he looks quite well." These records were clearly remote in time with respect to the hearing on the present claim, the last report being dated June 22, 1984. None of these doctors testified.

The deputy's determination as to claimant's lack of credibility is, on the face of the order, not supported by any substantial predicate. The record indicates only (1) claimant's correction in his 1986 testimony of a failure to recall, in deposition and in history to his latest doctor, that he had worked three months about a year before the hearing; (2) his lack of knowledge as to amount of those earnings, while testifying to the amount earned at the time of injury and estimating earnings in an earlier long term job from 1967 to 1980; and (3) his initial failure to recall four of the eight doctors whom he saw in the period following his 1983 injury. Our close consideration of those facts supplies no substance to the deputy's conclusion on credibility, or to his consequent rejection of all medical evidence presented at the hearing.

Even accepting the deputy's prerogative on that credibility issue, we conclude...