Briefly Speaking – Case Law Updates (4/8/20)

Edgar Santana v. EFN West Palm Motor Sales

JCC Hedler:   West Palm Beach District                      Order date:   2/28/2020  

OJCC Case:   19-004619TAH                                           Date of Accident:   1/24/2019

Claimant’s Counsel:   Marcos R. Gonzalez                E/C’s Counsel:   Sal Richardson

JCC Order:   Click Here

Briefly:  Compensability

Summary:    The Claimant was involved in a motor vehicle accident while working for the insured. He continued to work for two weeks until he was laid off, and did not seek medical treatment. After being laid off, the injured worker sought an attorney and alleged injury to the lower back radiating to the left leg, bilateral shoulders, and neck, with reports of headaches. A Petition was filed for compensability of the injuries. The Claimant sought self-treatment. The Claimant had prior lumbar spine injuries in workers’ compensation accidents in 1999 and 2005, and a non-work related motor vehicle accident in 2013. The E/C did not authorize care and obtained an IME. The Claimant denied prior motor vehicle accidents to the E/C’s IME provider but did report a low back injury 17 years prior with a procedure and subsequent symptom resolution. The IME provider found no indication that the Claimant’s symptoms were related to the at issue workers’ compensation claim. The Claimant obtained his own IME, who had treated him for the 2013 back injury. This provider diagnosed the injured worker with bilateral rotator cuff tears and a herniated disk and recommended surgical intervention for all diagnoses. An EMA was appointed and reviewed documentation of the 2013 accident, as well as the injured worker’s self-treatment following the at issue workers’ compensation accident. The EMA found that the injured worker likely briefly experienced an exacerbation off a pre-existing lumbar condition, but found no need for treatment for the low back related to the at issue industrial accident and no injury to the shoulders from same. The JCC accepted the opinions expressed by the EMA provider and noted found that the injured worker did not meet his burden to prove compensability. The requested benefits were denied.

Sydney Perry v. Hefler’s Masonry

JCC Dietz:   Sebastian/Melbourne District Order date:   3/2/2020    

OJCC Case:   18-006739RLD                                           Date of Accident:   2/11/2017

Claimant’s Counsel:   John D. Fielding                       E/C’s Counsel:   Robert P. Byelick

JCC Order:   Click Here

Briefly:  120 Day Pay & Investigate; MCC

Summary:   The Claimant fell, injuring his neck. An initial MRI was read as showing degenerative spondylosis and idiopathic skeletal hypertosis, as well as a herniation. A second MRI, performed a year later, showed no disc herniation, but only degenerative findings. Further treatment for the neck was denied. The Claimant alleged estoppel, and the Employer/Carrier defended that there was no reason to investigate the degenerative cervical condition prior to the second MRI. However, during the adjuster’s deposition, she testified that she was aware of a pre-existing degenerative condition at the time of the first MRI. The JCC found that the E/C was on notice as of the degenerative condition at that time and did not comply with the 120-day rule, thus making the cervical condition compensable under law. The E/C then defended, arguing that the accident was no longer the MCC for the need for treatment, as the herniation was not present on the second MRI, and the provider said it had been “resorbed” and the increased degenerative findings were due to this. The JCC found that there was no medical basis to deny cervical treatment after 18 months of treatment and that continued treatment was appropriate.

Anahi C. Gonzalez v. Coastal Care Services, Inc.

JCC Young:   Tampa District                                          Order date:   3/5/2020    

OJCC Case:   19-011283RLY                                            Date of Accident:   4/27/2018

Claimant’s Counsel:   Harvey Kaufman                      E/C’s Counsel:   Daniel O. Gonzalez

JCC Order:   Click Here

Briefly:  Exposure 

Summary:    The Claimant reported issues of feeling unwell immediately upon moving into the building of the insured after being hired, which she attributed to possible issues with leaking, mold, or dirty carpet with animal urine and the smells from same. With the company credit card, the Claimant hired a mold assessor, who found “visual observation of mold growth” and “elevated mold growth.” During deposition, the assessor testified that these assessments were based on the visual inspections of stains with no testing of same. Performed air-testing showed no mold amplification. Another licensed mold inspector hired by the Claimant found evidence of mold on fiberglass in the ceiling of the workplace, but these studies were performed 6 months after the Claimant’s alleged date of accident and following the injured worker’s separation of employment with the insured. The second inspector also alleged mold exposure at the time of accident based on images, but could not provide any scientific explanation for her findings. The Claimant asserted that exposure to mold in the workplace made her ill with a very long list of conditions. The Claimant obtained an IME who opined that the Claimant had objective findings caused by exposure in the workplace, based solely on the fact that the injured worker reported these symptoms while in the workplace that cleared up when she left. His opinion was that the injured worker had an allergic reaction to mold, but at deposition, it was noted that the mold he alleged was found outside, not inside, the workplace. The E/C obtained an IME who opined that the mold spores found on the initial report did not account for any of the alleged symptomatology reported by the Claimant and that there was no objective proof that she was exposed to any specific substances that resulted in any injury. The JCC found that the Claimant failed to prove by clear and convincing evidence that she was exposed to any specific substance at a level that could cause injury or disease, and her requests for indemnity and medical benefits were denied.

Carl E. Detwiler v. Humana Hospital

JCC Newman:   Tallahassee District                            Order date:   3/6/2020

OJCC Case:   86-000516JLN                                           Date of Accident:   4/24/1986

Claimant’s Counsel:   Arthur C. Beal                           E/C’s Counsel:   Tracey J. Hyde

JCC Order:   Click Here

Briefly:  Diagnostic Testing

Summary:   The Claimant slipped and fell at work, injuring his back. He received extensive medical treatment, including back surgery and fusion with placement of rods and internal fixation devices. He was subsequently diagnosed with failed back syndrome and has treated with pain management provider Dr. Buchalter. Dr. Buchalter referred the injured worker for treatment with Dr. Landry, and one basis of this referral was to undergo a CT myelogram with contrast to determine if he has persistent compression of nerve roots or inflammation.  The Claimant could not have an MRI due to retained metal in his back. Dr. Buchalter testified that the Claimant needed close medical supervision for this study due to a prior anaphylactic reaction to contrast in the past. The Claimant had undergone a prior CT with contrast in 2011 for treatment for renal cell cancer and had an allergic reaction to iodine. The E/C did not agree with authorizing Dr. Landry or authorizing a risky procedure.  The Claimant himself requested Dr. Landry due to proximity to his home and was willing to undergo the CT myelogram despite the risks. The jCC found that the Claimant was entitled to authorization of the CT myelogram as the provider deemed same reasonable and medically necessary, but that the E/C was not compelled to authorize Dr. Landry just because the referral was made specifically to that provider. The E/C remained entitled to select a physician within the geographical area of the injured worker’s home.