FL Case Law Summaries – 4/25/16
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JCC ORDERS
Michael E. McCoy v. Hillsborough Area Regional Transit/Commercial Risk Management, Inc.
JCC Massey; Tampa District; Order Date: April 20, 2016
OJCC Case: 15-014001MAM; D/A: 1/31/2015
Claimant’s Counsel: Manuel Franco
Employer/Carrier’s Counsel: Steven Hovsepian
Briefly: MAJOR CONTRIBUTING CAUSE; NEED FOR SURGERY – JCC Massey granted authorization of claimant’s left knee arthroscopic surgery and found the industrial injury was the major contributing cause of the need for the surgery and accepted the opinion of the Expert Medical Advisor, Dr. Wasylik, that surgery was necessary.
Summary: The Employer/Carrier argued that the JCC should reject the opinion of the Expert Medical Advisor, Dr. Wasylik, on the grounds that his reasons for recommending surgery were different from all the other physicians in this case and that Dr. Wasylik’s opinion should be treated just like any other medical opinion and weighed accordingly. The JCC disagreed and found Dr. Wasylik’s opinion was entitled to the statutory presumption of correctness, and there was no clear and convincing evidence to the contrary.
In the alternative, the JCC found the surgery is reasonable and necessary in order to diagnose exactly what was going on in the knee and is a necessary measure to determine the cause of claimant’s symptoms, which symptoms may be related to the compensable accident. The JCC acknowledged the arthroscopic surgery is potentially both diagnostic and remedial, but determined it was properly awarded as a diagnostic measure to determine the source of claimant’s symptoms and whether they were related to the industrial accident.
Laura Zamora v. Five Y Clothing, Inc./Hartford Accident and Indemnity Company, and Hartford Insurance of the Southeast
JCC Castiello; Miami District; Order Date: April 20, 2016
OJCC Case: 02-019556GCC; D/A: 6/21/2001
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: Kurt Wirsing
Briefly: MAJOR CONTRIBUTING CAUSE; NEED FOR SURGERY – JCC Castiello denied authorization of a total right knee replacement and found the compensable accident is not the cause for the need for knee replacement surgery. The JCC noted the claimant suffered a compensable accident almost 15 years ago to her right knee and that compensable care was authorized. However, the JCC found that by May of 2006, the knee was not causing her any pain or symptoms.
Summary: The JCC found the claimant treated once for her knee in 2011, but did not return for treatment to the knee until three years later. The post-2014 medical evidence established the claimant’s current knee symptoms are the result of a post-accident degenerative osteoarthritic disease process and is not related to the initial compensable right knee injury. The JCC noted that at the claimant’s deposition in 2006, five years post-accident, the claimant indicated that only her neck and shoulders were causing her pain, and there was no indication from the claimant at any point in time of symptoms suggesting continuing knee problems. The JCC found the claimant had gone five years with no indication of knee problems following the initial 2001 evaluations.
The JCC also noted that in 2001, the authorized neurosurgeon treated the claimant and recommended x-rays of her right knee, but shortly thereafter, she reached maximum medical improvement with no permanent impairment rating or restrictions.
Consistently, the JCC noted the claimant’s argument for holding the Employer/Carrier responsible for the right knee replacement surgery was predicated on only one portion of the treating physician, Dr. Calvo’s opinion, and that the portion of Dr. Calvo’s opinion which claimant omitted is fatal to her case. The JCC found Dr. Calvo reviewed the MRI of the right knee and opined the MRI did not “show any pathology produced by direct trauma” and that the MRI findings were consistent with degenerative changes.
Carol Calache v. City of Port Orange/Florida League of Cities/Workers’ Compensation Claims Dept.
JCC Anderson; Daytona Beach District; Order Date: April 21, 2016
OJCC Case: 15-009694WWA; D/A: 3/5/2014
Claimant’s Counsel: Richard Sicking
Employer/Carrier’s Counsel: Alan B. Kalinoski
Briefly: AUTHORIZED MEDICAL TREATMENT; IMPAIRMENT BENEFITS – JCC Anderson denied claims for authorization for injections and found the procedures recommended by Dr. Hodor are not reasonably required to diagnose or treat claimant’s compensable injuries. The JCC also denied penalties and interest on IB benefits and found that IB benefits are not due serially, as maximum medical improvement is reached from each specific specialty or injury, but rather, are due only after “overall” MMI is reached or eligibility for temporary disability benefits has expired.
Summary: The JCC accepted the testimony and opinion of Dr. Gerber, authorized physiatrist, over the opinion of Dr. Hodor, the claimant’s IME physician, on the grounds that Dr. Gerber saw the claimant more recently and that claimant has been comprehensively evaluated by several authorized treating physicians. The JCC concluded that the procedures recommended by Dr. Hodor, including injections, are not reasonably required to treat the claimant’s compensable injuries.
The JCC agreed with the Employer/Carrier that impairment benefits are due only after “overall” maximum medical improvement is attained or eligibility for temporary disability benefits has expired. The JCC rejected the claimant’s argument that impairment benefits are due serially, as maximum medical improvement is reached from each specific specialty or for each specific injury. The JCC noted the case of Whitworth Farms, Inc. v. Hernandez, 741 So. 2d 639 (Fla. 1st DCA 1999), wherein the DCA reversed an award of permanent impairment benefits because the claimant had not reached “overall” maximum medical improvement. The JCC denied the claims for penalties and interest on impairment benefits paid after overall maximum medical improvement was reached.
Carol Calache v. City of Port Orange/Florida League of Cities/Workers’ Compensation Claims Dept.
JCC Anderson; Daytona Beach District; Order Date: April 21, 2016
OJCC Case: 14-025066WWA; D/A: 10/10/2014
Claimant’s Counsel: Richard Sicking & Michael P. Clelland
Employer/Carrier’s Counsel: Alan B. Kalinoski
Briefly: IMPAIRMENT BENEFITS – JCC Anderson awarded 20 weeks of impairment benefits based on Dr. Pianko’s 10% permanent impairment rating.
Summary: The Employer/Carrier argued that claimant was placed at maximum medical improvement by the authorized treating cardiologist, Dr. Nocero, with a 0% permanent impairment rating. However, the JCC accepted the opinion of the claimant’s IME cardiologist, Dr. Pianko, that the claimant reached maximum medical improvement with a Class 1 permanent impairment rating of 10% under the Guides.
The JCC rejected Dr. Nocero’s opinion as it appears from Dr. Nocero’s report that the impairment rating of 0% was based upon the fact that they found no evidence of end-organ damage to the heart, brain, kidneys, or eyes. However, the JCC noted that by the plain terms of the impairment guidelines, no such evidence is required for a Class 1 impairment rating.
The JCC also rejected the opinion of the Employer/Carrier’s IME cardiologist, Dr. Whitworth, that the claimant does not have a permanent impairment rating, and noted Dr. Whitworth testified his opinion was based in part on his understanding that the Guides required repeated diastolic pressures in excess of 90 mm Hg and claimant’s diastolic pressures did not repeatedly exceed that level after she began taking medications prescribed for her hypertension. The JCC identified this as a “chicken and egg problem”. The JCC noted that a Class 1 permanent impairment rating for a hypertensive cardiovascular disease under the Guides does require diastolic pressure in excess of 90 mm Hg. The Guides also state, “Ratings of impairment due to hypertension should be delayed until after the drugs have been prescribed and their doses have been adjusted to achieve maximum effect.” The JCC stated this does not necessarily mean that diastolic pressures must be repeatedly in excess of 90 mm Hg after the prescribed drugs have achieved their maximum effect. However, the JCC found the claimant is not required to be placed in a “catch-22” situation of having to stop taking medications prescribed by the treating physician in order to determine whether she qualifies for permanent impairment rating.