Jan 4, 2013 - News by Walton Lantaff
Orlando attorney Nathan Stravers ensured a Claimant was not allowed to cash in on two separate dates of accident in a victory for the Employer/Carrier.
The Claimant, who worked for a local family-owned diner, experienced two different back injuries with different insurance carries covering the dates of accident. Following the initial injury in 2002, the Claimant underwent a lumbar fusion, and subsequently was placed at MMI and returned to work. Shortly after being placed at MMI, the Claimant requested additional hours; however, she continued to have attendance problems, thus her hours were reduced to one day per week. On Christmas Eve 2008, the Claimant reported a new back injury. WLSC was designated counsel for the 2008 date of accident and the two accidents were consolidated in 2009.
Initial treatment was authorized at a walk-in clinic; however, the Claimant never presented for treatment and continued to receive unauthorized treatment with Dr. Michael Broom, the authorized treating physician for the 2002 date of accident with a different insurance carrier. After each party obtained an IME, Judge Portuallo ordered an EMA.
In January 2011, Dr. Joseph Rojas, the EMA, determined that 100% of the need for the lumbar treatment was related solely to the Claimant’s 2002 date of accident. He also determined that 60% of the need for treatment for the thoracic and cervical spine was the 2008 date of accident. Following the recommendation of Dr. Rojas, Dr. Michael Broom was subsequently authorized to treat the Claimant for all levels of the spine, with the carrier for the 2002 date of accident accepting compensability for the lumbar spine, and the carrier for the 2008 date of accident accepting compensability for the thoracic and cervical spine.
In June 2011, the Claimant filed a Petition for Benefits, seeking permanent and temporary indemnity benefits from both dates of accident. The Claimant subsequently settled the 2002 date of accident for over $100,000 and dismissed the claim for permanent total disability benefits, but continued with her claim for temporary indemnity benefits against the carrier for the 2008 date of accident.
First, the carrier for the 2008 date of accident defended against temporary indemnity benefits from the date of the 2008 accident though May 7, 2010, because the Claimant continued to work her normal scheduled hours until she voluntarily resigned. Second, any benefits after May 7, 2010 would also be denied because the Claimant had voluntarily limited her income when she resigned. Finally, the Claimant had never been assigned any work restrictions for the 2008 date of accident, and thus the carrier took the position that no temporary indemnity benefits were due or owing.
The parties proceeded to Final Hearing on the issues of entitlement to temporary partial disability benefits, adjustment of average weekly wage, and authorization and payment of prescription medications. In preparation for trial, attorney Nathan Stravers secured Dr. Broom’s deposition testimony on two different occasions, stating that the need for work restrictions and ongoing prescription medication was due to the Claimant’s 2002 date of accident.Opposing counsel attempted to get Dr. Broom to answer questions based on hypothetical questions about work restrictions and medications had there not been a 2002 date of accident. Dr. Broom responded that there may have been restrictions and medications; however, this was highly speculative and the 2002 injury was the main reason the Claimant required both work restrictions and prescription medications.
Following the Final Hearing, Judge Portuallo denied all benefits claimed to be related to the 2008 date of accident. He relied heavily on the fact that the EMA physician Dr. Joseph Rojas “testified that Dr. Broom would be in the best position to form an opinion on work restrictions.” During two different depositions, Dr. Broom opined that the Claimant’s need for work restrictions and medications did not change from before the 2008 date of accident, and thus the major contributing cause of the need for both work restrictions and prescription medications was the 2002 date of accident. Judge Portuallo noted, “I find the acceptable medical evidence in this case reveals that all of the Claimant’s work restrictions assigned to her following the December 24, 2008, date of accident were due to her more serious June 16, 2002, compensable low back injury and not due to her subsequent compensable thoracic and cervical injuries.”
Additionally, Judge Portuallo opined that, “I accept Dr. Broom’s opinion as a treating orthopedic physician who saw the Claimant both before and after the December 24, 2008, industrial injury as the physician who is in the best position to form an opinion on whether or not the medications prescribed by Dr. Broom are medically necessary and causally related to the December 24, 2008, compensable injuries.”
Although Judge Portuallo opined that the Claimant was not entitled to temporary indemnity benefits, he also opined that she was not entitled to use the 2002 average weekly wage. He noted the instant case was distinguishable from Pinellas County School Board v. Higgins, 597, So. 2d 355 (Fla. 1st DCA 1992), because the instant case did not include a finding that the Claimant was entitled to permanent total disability benefits.
Additionally, he opined that “the Claimant failed to establish, within a reasonable degree of medical certainty, that she had been assigned any work restrictions as a result of the December 24, 2008, industrial injury.”
Following this hard fought win, with tremendous contributions from all members of the Orlando office, the Employer/Carrier is now seeking costs associated with securing the denial of benefits at the Final Hearing.
