Cruz v. State, Department of Legal Affairs

189 So. 3d 145, 2015 Fla. App. LEXIS 12440, 2015 WL 4923576
CourtDistrict Court of Appeal of Florida
DecidedAugust 19, 2015
DocketNo. 1D14-4419
StatusPublished

This text of 189 So. 3d 145 (Cruz v. State, Department of Legal Affairs) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cruz v. State, Department of Legal Affairs, 189 So. 3d 145, 2015 Fla. App. LEXIS 12440, 2015 WL 4923576 (Fla. Ct. App. 2015).

Opinions

MARSTILLER, J.

Richard F. Cruz (“Claimant”) appeals that portion of a final, compensation order denying him continued temporary total disability (“TTD”) and/or temporary partial disability (“TPD”) benefits after January 5, 2014. In the order, the Judge of Compensation Claims (“JCC”) found Claimant had reached overall maximum medical .improvement (“MMI”) by December 31, 2013, and, for that reason, no longer qualified for disability benefits. The JCC did, however, award Claimant an evaluation by .a gastroenterologist, recommended by his authorized treating cardiologist to assess Claimant’s acid reflux complaints.

On appeal, Claimant argues the JCC erred by finding him at overall MMI and denying disability benefits because, like the claimant in Ruiz v. BellSouth Credit & Collections, 994 So.2d 1220 (Fla. 1st DCA 2008), he still had yet to undergo the evaluation by a gastroenterologist. As explained below, we find Ruiz distinguishable from this case, and conclude that Claimant indeed can be found to have reached overall MMI, notwithstanding the referral for evaluation by a gastroenterologist. We therefore affirm the JCC’s denial of TTD or TPD benefits.

Here are the pertinent factual findings and legal conclusions from the JCC’s final compensation order. The findings are not assailed on appeal for lack of evidentiary support:

There was no disagreement among the cardiologists that claimant was at MMI physically. Dr. Weston [the treating cardiologist] placed claimant at MMI 12/31/2013....
My review of Dr. Weston’s treatment after 12/31/13 led me' to find, factually, that claimant had no remedial cardiological medical care after that date[.] ... I found, factually, that claimant reached physical MMI on 12/31/13.
Based on the testimony of Drs. Szabo and Pandya, claimant’s psychiatrists, I found factually claimant reached MMI psychiatrically on 6/5/13. Combining the date of physical MMI with the date of psychiatric MMI, I found, factually, claimant reached over-all . MMI on 12/31/13. Because claimant reached over-all MMI on 12/31/13, he was not, as a matter of law, entitled to any temporary benefits after that date.
Claimant argued the [sic] he could not be at over-all MMI because E/SA
... Dr. Weston agreed claimant should be seen by a gastroenterologist but testified that the referral was not medically necessary because of claimant’s heart condition. Dr. Mathias [a cardiac IME] testified that the aspirin and Plavix claimant was prescribed by Dr. Weston could aggravate pre-existing gastroesophageal reflux disease (GERD). Dr. Noeero [a cardiac IME] thought there was 'no relationship between claimant’s heart condition and his GERD....
I determined factually that claimant was prescribed daily aspirin and Plavix because of his compensable heart disease and that these medications could aggravate pre-existing gastric pain. Based on these facts, I concluded as a matter of law that claimant was entitled to an evaluation by a gastroenterologist to determine if claimant’s use of aspirin and Plavix ón a daily basis had caused an aggravation of claimant’s pre-existing condition!.] Where a compensable injury leads to a different injury or condition, which requires medical care, then the injured employee is entitled to that care or, at the very least, an evaluation to'determine whether there is some connection between the compensable injury and the symptoms the employee has. [Citations omitted'.]

(Emphasis supplied.)

MMI is statutorily defined as the point “after which further recovery from, or lasting improvement to, [the] injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” § 440.02(10), Fla. Stat. (2012). A claimant being treated for compensable injuries in more than one medical specialty is not at- MMI until so deemed by each treating physician in each specialty. See, e.g., Sapp v. Berman Bros., 884 So.2d 1080, 1082 (Fla. 1st DCA 2004); Greber v. Tallahassee Dev. Ctr., 778 So.2d 999, 1000 (Fla. 1st DCA 2000). Here, the injuries Claimant suffered, for which he had received and was seeking extended disability benefits, were cardiac and psychiatric. The authorized physicians treating him for those injuries opined unequivocally that Claimant is at MMI for both. Having reached MMI from the perspective of each treating, specialty, Claimant is no longer entitled to temporary disability benefits. ⅜§ 440.15(2), (4), Fla. Stat. (2012).

In Ruiz, the case Claimant relies on, we reversed the JCC’s finding of overall MMI because it was not supported by competent, substantial evidence.. 994 So.2d at 1222. The claimant in that case fell down a flight of stairs at work and subsequently complained of headaches, ankle pain, neck pain, back pain, depression and anxiety. Id. at 1221. The employer/carrier authorized Dr. Hershman, a gerontologist/internist, to treat the claimant’s injuries. Id. Dr. Hershman could find no objective basis for the complaints; so, he referred the claimant for an MRI and for evaluations with a neurologist, podiatrist, orthopedist and psychiatrist to determine the causes of the claimant’s pain, depression and anxiety, and any connection to the workplace accident. Id. After the claimant filed a petition for benefits, Dr. Hershman opined in deposition that the claimant was at MMI because he could do nothing more for the claimant “ ‘pending that MRI.’ ” Id. Deposed again a year later, Dr. Hershman testified. he had, last seen- the claimant seven months prior and he was “‘pretty much done as far as .my therapy was concerned.’ ” Id. Although the recommended evaluations had not been done — indeed, the JCC awarded all but the neurological evaluation — the JCC found the claimant at [148]*148overall MMI. Id. at 1221-22. Understandably, we determined Dr. Hershman’s specialty-specific MMI determination could not support a finding that the claimant was at overall MMI. Id. at 1222.

Ruiz is readily distinguished from this case. Here, both treating specialists — the cardiologist and the psychiatrist — placed Claimant at MMI; no specialty remained outstanding. The fact that Claimant’s cardiac medication may have aggravated his pre-existing GERD — hence the need for a gastroenterological evaluation — did not affect the MMI determination made by either the cardiologist or the psychiatrist. And the existence of a likelihood that Claimant’s GERD will be compensable because his cardiac medications aggravated his pre-existing acid reflux does not mean, without some supporting medical opinion, that Claimant is not at MMI for the conditions that rendered him temporarily disabled. Claimant had been deemed physically ready to return to work, and no doctor testified that Claimant’s GERD would, or could, in any way disable him, or that treating the gastric problem could bring about further improvement to his cardiac condition.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ruiz v. BellSouth Credit and Collections
994 So. 2d 1220 (District Court of Appeal of Florida, 2008)
Sapp v. Berman Bros.
884 So. 2d 1080 (District Court of Appeal of Florida, 2004)
Rosa v. PROGRESSIVE EMPLOYER SERVICES
84 So. 3d 472 (District Court of Appeal of Florida, 2012)
Greber v. Tallahassee Development Center
778 So. 2d 999 (District Court of Appeal of Florida, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
189 So. 3d 145, 2015 Fla. App. LEXIS 12440, 2015 WL 4923576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cruz-v-state-department-of-legal-affairs-fladistctapp-2015.