Certistaff, Inc. v. Owen

181 So.3d 1218

CERTISTAFF, INC. /Summit Holdings, Appellants,

v.Kenneth OWEN, Appellee.

No. 1D15–1513.

District Court of Appeal of Florida, First District.

Dec. 11, 2015.

Rehearing Denied Jan. 25, 2016.

H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, and Donald S. Bennett of Banker, Lopez, Gassler, P.A., Tampa, for Appellants.

Laurie T. Miles of Miles and Parrish, P.A., Lakeland, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.

PER CURIAM.

In this workers' compensation appeal, the Judge of Compensation Claims (JCC) rejected the presumptively correct opinion of the expert medical examiner (EMA) and determined instead that the major contributing cause (MCC) of Claimant's need for the recommended shoulder replacement surgery was the workplace injury. We reverse because the JCC failed to articulate clear and convincing evidence contrary to the EMA's opinion.

I.

Claimant was employed as a gas tech, which he described as someone who worked on and installed gas appliances. Claimant testified that on December 5, 2013, he was using a small ladder to get into the bed of his pickup truck. While Claimant had one foot on the tailgate and one foot on the ladder, the ladder slipped and Claimant fell down, landing on his right side. The accident and injury to the right shoulder was initially accepted as compensable by the Employer/Carrier (E/C) and authorized medical treatment was provided by Dr. Patterson. Following Dr. Patterson's exam in January 2014, the E/C denied entitlement to any further treatment on grounds the treatment was not related to Claimant's employment; rather, the need for the treatment was Claimant's pre-existing shoulder pathology which included osteoarthritis and rotator cuff arthropathy.

By way of background, Claimant testified, as detailed further in the medical reports, that he had undergone surgery for a right rotator cuff repair in 1999 or 2000, and two surgeries on the left rotator cuff—the first in approximately 2002 and the second in approximately 2005. Claimant testified at the hearing that he was not receiving medical treatment just prior to the date of the accident and was not taking any prescription medication. Claimant did report that he had pain when he had to work in certain positions and that after a heavy-lifting day he would take Advil or Tylenol for muscle pain and achy joints; nevertheless, he testified he was able to do all of his duties before the date of the accident.

In his deposition, Claimant testified that he had some difficulties with both shoulders from the time he started working for the Employer in 2009 until the date of the accident, which he described as pain and movement (range of motion). He explained that the symptoms were present from the time he woke up until he went to bed, depending on his level of activity. He further testified that if he had pain, adjustments would be made to his work schedule.

In response to the E/C's denial of further treatment, Claimant underwent an examination with his designated medical expert, Dr. Fiore, who opined that the MCC for the need of the recommended surgery at issue was the workplace injury, as the doctor was of the opinion that Claimant sustained an acute injury to the right rotator cuff when he fell. Based on the disagreement between Drs. Patterson and Fiore, the E/C requested appointment of an EMA. The JCC granted this motion and appointed Dr. Greene as EMA. Dr. Greene opined that the pre-existing conditions were the MCC of the need for the surgery.

II.

In her findings, the JCC noted that Claimant "testified that after a heavy work day he would have achiness or pain in his right shoulder and would take over the counter medicines such as ibuprofen." Nevertheless, the JCC found that the pre-existing conditions did not require any treatment prior to the compensable accident. The JCC found that all of the physicians agreed that the rotator cuff repair and pre-existing arthritis were the cause of the need for the shoulder replacement surgery. The JCC also found that if the compensable injury had not occurred, Claimant's condition may or may not have progressed to the point where he required this surgery. Thus, she concluded, the compensable accident caused the underlying condition to become symptomatic, and it is this symptomatology in combination with the pre-existing condition that has led to the recommendation for surgery.

In her analysis, the JCC explained that when a claimant has a pre-existing condition, the inquiry becomes whether the pre-existing condition independently required treatment either before or after the compensable injury, citing City of Fort Pierce v. Spence, 155 So.3d 1197 (Fla. 1st DCA 2014). Even though the EMA testified that the MCC of the need for treatment was the pre-existing condition, the JCC explained that it is not the use of certain "magic words" that is determinative of the issue; rather, it is the substance of the evidence, relying on Trejo–Perez v. Arry's Roofing, 141 So.3d 220 (Fla. 1st DCA 2014). Here, the JCC concluded, the evidence established that Claimant may have remained asymptomatic and may not have required the shoulder replacement surgery in the absence of the compensable injury. Further, the pre-existing condition had not independently required treatment. Thus, the JCC reasoned, the MCC of Claimant's current disability and need for treatment was the compensable injury.

III.

The JCC's factual findings will be upheld if any view of the evidence and its permissible inferences supports them. See Ullman v. City of Tampa Parks Dep't, 625 So.2d 868, 873 (Fla. 1st DCA 1993). The JCC's legal conclusions involved questions of law subject to de novo review. See Gilbreth v. Genesis Eldercare, 821 So.2d 1226 (Fla. 1st DCA 2002). Paragraph 440.13(9)(c), Florida Statutes (2013), provides that an EMA is appointed when ...