Collins v. Catalytic, Inc.

597 So. 2d 327, 1992 Fla. App. LEXIS 3929, 1992 WL 67933
CourtDistrict Court of Appeal of Florida
DecidedApril 2, 1992
DocketNo. 90-2682
StatusPublished

This text of 597 So. 2d 327 (Collins v. Catalytic, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Catalytic, Inc., 597 So. 2d 327, 1992 Fla. App. LEXIS 3929, 1992 WL 67933 (Fla. Ct. App. 1992).

Opinions

WOLF, Judge.

Claimant challenges an order denying her permanent disability benefits, entered on the ground that claimant reached maximum medical improvement with no permanent impairment. We find there was competent substantial evidence to support the findings of the judge of compensation claims (JCC), and affirm.

The issue in this case focuses on the conflicting medical evidence concerning claimant’s permanent impairment. The JCC made extensive findings concerning the claimant’s injury and the relative credibility and weight to be given each doctor’s testimony. In light of the importance of these findings, it is essential that they be repeated in full. The JCC found as follows:

b.The claimant, ROBIN COLLINS, was injured when a large box fell onto her chest and pinned her in the chair. She has been seen and treated primarily by Andrew F. Greene, M.D., an orthopedic surgeon. Her current physical complaints are pulling and tightness in the right neck and right shoulder blade, earache, the appearance of a lump at the right neck, and discomfort in the right side of the chest. She is currently employed as a food server at a McDonald’s Restaurant where she works four hours a day, three days per week. Additionally, she has been working at a bakery since April of 1990, four to five hours a day, two days per week.
c. Four physicians testified in this cause. Dr. Andrew F. Greene, the claimant’s treating orthopedic surgeon, testified that he first saw the claimant for the industrial accident of September 26, 1987, on October 8, 1987. He found that the claimant had reached maximum medical improvement on March 29, 1989, with no permanent impairment based on any logical scheme that he was aware of. Specifically, Dr. Greene felt the claimant had no permanency per the AMA Guides to Impairment and no permanency per the Manual for Orthopedic Surgeons in Evaluation of Permanent Physical Impairment. Additionally, based upon his educational background, experience and training, she had no impairment. Dr. Greene testified the claimant could return to work without physical restrictions. For reasons more fully set out below, I accept the opinion of Dr. Greene and find that the claimant reached maximum medical improvement with no permanent impairment prior to February 18, 1990. Specifically, I find that the claimant reached MMI on March 29, 1989.
d. Leonard E. Greenbaum, a chiropractor and a registered physical therapist, testified on behalf of the claimant. He had performed a functional capacities evaluation of the claimant on July 21, 1988, approximately ten months post date of the accident. At that point the claimant was still undergoing treatment. Dr. Greenbaum testified that at that point he did not know whether the claimant has sustained any permanency nor whether any could be reasonably expected. Dr. Greenbaum readily admitted that with respect to whether the claimant had a permanency or not, he would have to defer to the treating orthopedic physician. As he stated, his job was to find out what the claimant’s functional capacity was and that was what his evaluation was geared toward. I find that Dr. Greenbaum’s testimony is not competent substantial evidence of a permanent impairment. He saw the claimant on only one occasion, approximately eight months before Dr. Greene made his determination regarding maximum medical [329]*329improvement and permanency. The visit was for a limited purpose. I do not find Dr. Greenbaum’s testimony to be inconsistent with Dr. Greene’s ultimate finding of no permanency and no work restrictions.
e. Hooshang Hooshmand, a neurologist, testified on behalf of the claimant. Dr. Hooshmand is an unauthorized physician who rated the claimant with a 5% total body impairment and imposed work restrictions. According to Dr. Hooshmand, the rating was arrived at based upon EMG, neurological exam, and thermogra-phy.
f. I am skeptical of the opinion of Dr. Hooshmand for several reasons. He failed to explain how he arrived at the particular 5% as the impairment rating. He conceded that during his treatment of the claimant he never had any records concerning her from any other prior treating physicians and in particular he never reviewed any records from Dr. Greene, the treating orthopedic surgeon. He admitted that all he had was bottles of medications brought by the claimant and the history she gave to him. He appeared to be unconcerned with the pri- or treatment she had been provided. Dr. Hooshmand appeared to me to be more an advocate for the claimant than an objective, unbiased witness. I found the overall tenor of his testimony to be an attack on Dr. Greene and an extollment of his own virtues. I found this to be inappropriate. Dr. Hooshmand was hostile and argumentative as well as generally non-responsive to cross examination questions by counsel for the employer/carrier. I do not accept Dr. Hoosh-mand’s testimony as constituting competent substantial evidence of permanent impairment. I find he failed to give a cogent and well reasoned explanation for the 5% rating.
g. Leonard M. Holtzman, D.C., saw the claimant at her request on June 5, 1990. He opined that the claimant had reached MMI under chiropractic and physical therapy. He saw no objective evidence of improvement following extensive care to date and opined that it was doubtful that additional care by himself or any other chiropractor would bring about further resolution of her complaints. He assigned the claimant a 5% impairment rating based upon diagnosed chronic myofascial pain syndrome.
h. Dr. Holtzman agreed that his objective findings in comparison to Ms. Collins’ subjective complaints were not in proportion to one another and he found the two to be inconsistent. According to Dr. Holtzman, if he had seen the claimant as a new patient, someone who had just come in, someone who had just originally had the injury, he would have been surprised that she had the severity of the complaints that she was attributing to the accident. I find it significant that Dr. Holtzman did not assign any work restrictions to the claimant. He testified that the claimant has a soft tissue type injury which he did not personally believe would be worsened by different activities. He could find no specific limitation which he would assign due to the objective findings on his examination.
i. I do not find Dr. Holtzman’s testimony to be competent substantial evidence of a permanent impairment. This is based upon the inconsistency between the severe subjective complaints voiced by the claimant at the time of his examination and the scarcity of the objective findings. My finding is also based upon Dr. Holtzman’s failure to find any specific limitation which he would assign due to the objective findings on examination.
j. During his care and treatment of the claimant, Dr. Greene could never find any objective basis for the claimant’s subjective complaints. He found the claimant to have reached maximum medical improvement on March 29, 1989, and at that point with reference to her subjective complaints, stated, “it seems as though her symptoms are going to go on without any end in sight, and I see no reason to prolong treatment in this office.” Dr. Greene felt the claimant was employable as of March 29, 1989, with certain work restrictions imposed based only upon her subjective complaints. [330]*330Specifically, he did not feel she should have a job where she was required to look overhead and he did not think heavy lifting was appropriate.

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Bluebook (online)
597 So. 2d 327, 1992 Fla. App. LEXIS 3929, 1992 WL 67933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-catalytic-inc-fladistctapp-1992.