CVS Caremark Corporation and Gallagher etc. v. Sharon McIntosh , 163 So. 3d 1270 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CVS CAREMARK NOT FINAL UNTIL TIME EXPIRES TO
CORPORATION AND FILE MOTION FOR REHEARING AND
GALLAGHER BASSETT DISPOSITION THEREOF IF FILED
SERVICES, INC.,
CASE NO. 1D14-4703
Appellants,
v.
SHARON MCINTOSH,
Appellee.
_____________________________/
Opinion filed May 22, 2015.
An appeal from an order of the Judge of Compensation Claims.
John J. Lazzara, Judge.
Date of Accident: October 19, 2010.
James H. Wyman of Hinshaw & Culbertson, LLP, Coral Gables, and Jennifer
Armstrong of Hinshaw & Culbertson, LLP, Jacksonville, for Appellants.
Bill McCabe, Longwood, and Christopher V. Puleo, Jacksonville, for Appellee.
PER CURIAM.
In this workers’ compensation case, the Employer/Carrier (E/C) challenges an
award of psychiatric care entered by the Judge of Compensation Claims (JCC) on
remand from the appeal in McIntosh v. CVS Pharmacy, 135 So. 3d 1157 (Fla. 1st
DCA 2014). In her cross-appeal, Claimant seeks to reverse the denial of claims for
temporary total disability (TTD) and inpatient psychiatric care. We affirm the award
of psychiatric care because the JCC did not err when he ruled that the E/C waived
its right to challenge compensability of Claimant’s post-traumatic stress disorder
(PTSD) under section 440.20(4), Florida Statutes (2010), based on its failure to show
material facts that could not have been discovered through a reasonable investigation
within the applicable 120-day time period. For that reason, we do not reach the
issues raised on cross-appeal concerning any alternate theory of compensability. We
reverse, however, the denial of the claims for TTD and inpatient psychiatric care and
remand for further proceedings in accordance with this opinion.
The E/C here originally authorized Dr. Abraham, psychiatrist, to provide
Claimant with psychiatric care related to her compensable injury. In October of
2012, the E/C transferred Claimant’s care to Dr. Kolin, an authorized psychiatrist,
who, as found by the JCC, opined that Claimant’s workplace accident caused PTSD
leaving her temporarily and totally unable to work. The JCC ultimately rejected Dr.
Kolin’s opinion that Claimant is TTD because the doctor failed to take into account
that Claimant had, for periods other than those for which disability benefits were
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sought, returned to work with the Employer after the workplace accident, continued
to work without lost time (except for childbirth), resigned in May of 2011, and
thereafter worked for Wal-Mart, without a loss in time, until a leave of absence in
August 2012. The JCC indicated further that he did not find Claimant’s testimony
concerning her ability to work to be credible and believed that she was not working
for reasons unrelated to her workplace accident. Because he found “no credible
medical evidence of disability or inability to work,” the JCC denied the claim for
TTD.
The denial of TTD benefits was error. Claimant met her initial burden by
submitting medical evidence from Dr. Kolin, in his status as an authorized physician,
indicating an inability to work due to her compensable PTSD. Once Claimant
submitted such evidence, the burden shifted to the E/C to submit medical evidence
that Claimant’s work status had in fact changed from temporary total
disability. See Campbell v. L & C Constr., 869 So. 2d 708, 708-09 (Fla. 1st DCA
2004) (reversing JCC’s denial of TTD benefits because no competent substantial
evidence (CSE) supported change in work status). The E/C submitted no such
medical evidence for the time periods at issue here.
It is also irrelevant that the JCC ultimately rejected Dr. Kolin’s opinion
concerning Claimant’s work status. This Court has previously held that “the
resolution of the issue of claimant’s entitlement to TTD benefits does not turn on the
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JCC’s prerogative as fact-finder to accept a particular expert’s testimony. . . but
rather on whether claimant should have reasonably relied on the instructions given
her by her authorized treating physician.” Fla. Hosp. Deland v. Wagner-Vick, 940
So. 2d 588, 590 (Fla. 1st DCA 2006). See also Garcia-Vina v. U.S. Holiday Health
& Recreation, 634 So. 2d 200, 201 (Fla. 1st DCA 1994) (“This court has repeatedly
held that even in the absence of medical evidence that a claimant was TTD or that
claimant searched for but could not find work, TTD benefits should nevertheless be
awarded where it is shown that claimant’s physician never communicated to the
claimant that he or she was released to return to work.”). Because the JCC
overlooked the applicable law and made no finding that would overcome Claimant’s
reliance on the work status assigned by Dr. Kolin in October of 2012, the denial of
TTD through the date of the final hearing must be reversed.
The JCC also denied a claim for inpatient psychiatric care. As found by the
JCC, Dr. Kolin testified that such care was reasonable and medically necessary, but
appeared to qualify his recommendation “by saying that she should be at least
authorized to be evaluated in such a facility to determine whether such intensive
treatment would accommodate her PTSD.” In the appealed order, the JCC awarded
Claimant ongoing psychiatric care, but denied the inpatient psychiatric care because
“Dr. Kolin’s opinion in that regard [was] not sufficiently convincing that said
treatment is needed and because his overall testimony was discounted.” A JCC may
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reject the unrefuted testimony from a doctor as unreliable, but must give a valid
reason. Vadala v. Polk Cnty. Sch. Bd., 822 So. 2d 582, 584 (Fla. 1st DCA 2002).
Here, the JCC’s reasons for rejecting Dr. Kolin’s recommendation for inpatient care
are by all appearances conflicting because the JCC presumably relied on Dr. Kolin’s
recommendation when he awarded ongoing psychiatric care and it is unclear how he
parsed the doctor’s testimony to limit the award of psychiatric care in this way. In
particular, the JCC concluded that Claimant did not need in-patient psychiatric care
because Dr. Kolin’s testimony was not convincing, in part, because the doctor
recommended, alternatively, an evaluation by an inpatient facility for such care.
This reasoning does not detract from the medical opinion at hand but, rather,
supports the need for at least an evaluation for inpatient care. For this reason, we
reverse and remand for further clarification of the denial of the recommended
inpatient care and for consideration of the alternate recommendation for an
evaluation to determine the value of inpatient care to treat Claimant’s compensable
PTSD.
For the foregoing reasons, the order on appeal is AFFIRMED in part and
REVERSED in part with REMAND for further proceedings in accordance with this
opinion.
WOLF, WETHERELL, and BILBREY, JJ., CONCUR.
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