Greetings,

I often get questions on what to do when a claimant’s unrelated personal health issues delay surgery or treatment.   Well the 1^st DCA just affirmed a JCC decision on the issue (without a written DCA opinion) in Carter vs. Seminole Express (April 8, 2021).  

In this case, the ER could not accommodate light duty.  The doctor diagnosed a tear and recommended shoulder surgery, however the claimant was unable to undergo the surgery due to uncontrolled diabetes.   There was no referral for treatment for diabetes or for the E/C to get the diabetes under control.  The claimant sought unauthorized treatment for the condition.   The doctor put the claimant at MMI on 7/10/19 with a 4% impairment rating since he was unable to have the surgery.   In follow up visits, the doctor continued him at MMI.  Then, on 3/9/20, the claimant’s diabetes was under control and he underwent the surgery.  The claim was for TPD from the “non-surgical” MMI date and the actual surgery (the court didn’t necessarily like that phrase, but noted the doctor only used it in his depo, his notes simply say MMI).

The JCC found the claimant was at MMI until he had the surgery.  The JCC noted the doctor could have elected to hold off on MMI to see if the diabetes would come under control, but he chose to put him at MMI.  TPD was denied. On appeal, the 1^st DCA affirmed the JCC decision without further opinion.

What is not addressed in the JCC opinion is the hinderance to recovery theory, where the E/C can be forced to treat a personal unrelated condition to obtain clearance.   It does not appear that that was argued or at issue.   It does appear we can ask our doctor in these situations to address MMI assuming the claimant may never get clearance, and rescind if they do.  Here are the decisions.

https://www.jcc.state.fl.us/jccdocs20/PNS/Escambia/2019/001536/19001536_229_06252020_11371502_i.pdf

https://www.jcc.state.fl.us/jccdocs20/PNS/Escambia/2019/001536/19001536_291_04082021_02285750_i.pdf

Sincerely,

Morgan Indek | Managing Partner