City of Fort Pierce/Florida Mun. Ins. Trust v. Spence

155 So.3d 1197

CITY OF FORT PIERCE/FLORIDA MUNICIPAL INSURANCE TRUST, Appellant

v.Donald SPENCE, Appellee.

No. 1D14–937.

District Court of Appeal of Florida, First District.

Dec. 30, 2014.

Rehearing Denied Feb. 2, 2015.

Lamar D. Oxford and Alan D. Kalinoski of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellant.

Bill McCabe, Longwood, and Andrew A. Reich, Port St. Lucie, for Appellee.

Opinion

PER CURIAM.

In this workers' compensation case, the Employer/Carrier (E/C) appeals, and Claimant cross-appeals, an order of the Judge of Compensation Claims (JCC) ordering facet injections and denying claims for authorization of an orthopedic surgeon and a cervical diskectomy and fusion at C5–6. For the reasons that follow, we reverse the award of facet injections, and affirm the remainder of the order.

Claimant was injured on October 21, 2012, in a work-related motor vehicle accident; the E/C stipulated to compensability. Authorized pain management specialist Dr. Slobasky recommended bilateral cervical facet medial branch blocks, and in deposition attributed seventy percent of Claimant's need for those facet injections to a non-work-related degenerative condition of Claimant's spine, which Claimant's family doctor had found before the work accident and characterized as “usual findings in a patient of 44 years of age.” The JCC, in awarding the facet injections, accepted Dr. Slobasky's percentages, but discounted them on the reasoning that the degenerative condition was “normal, aging,” and cited in support Bysczynski v. United Parcel Services, Inc., 53 So.3d 328 (Fla. 1st DCA 2010). The JCC's order evinces his misunderstanding of Bysczynski.

As we recently clarified in Osceola County School Board v. Pabellon–Nieves, 152 So.3d 733, 734 (Fla. 1st DCA 2014), “it does not matter whether a preexisting condition is ‘age-appropriate;’ what matters is whether there is medical evidence that it is the major contributing cause of the need for the requested treatment.” In Bysczynski, the preexisting degeneration “did not ... independently require any level of treatment either before or after Claimant's two compensable accidents.” 53 So.3d at 331. In contrast, in the instant case there is medical evidence that the preexisting degeneration is the major contributing cause of the current need for facet injections, and that evidence was accepted by the JCC; therefore, the JCC erred in awarding the facet injections. We affirm the other issue on appeal without further comment.

On the cross-appeal, we note that, given the JCC's unchallenged finding that care provided by Dr. Roush is compensable, the JCC erred in excluding, under section 440.13(5)(e), Florida Statutes, Dr. Roush's medical opinion testimony that the diskectomy and fusion surgery is needed. See Romano v. Trinity Sch. for...