Federal Express Corp. v. Lupo

77 So. 3d 899, 2012 Fla. App. LEXIS 968, 2012 WL 178367
CourtDistrict Court of Appeal of Florida
DecidedJanuary 24, 2012
DocketNo. 1D11-3192
StatusPublished

This text of 77 So. 3d 899 (Federal Express Corp. v. Lupo) 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
Federal Express Corp. v. Lupo, 77 So. 3d 899, 2012 Fla. App. LEXIS 968, 2012 WL 178367 (Fla. Ct. App. 2012).

Opinion

PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) finding Claimant’s repetitive trauma injury compensable and authorizing evaluation and treatment with a podiatrist. We reverse because, although the JCC properly found Claimant’s repetitive trauma injury compensable, the JCC erred in rejecting the opinion of the expert medical advisor (EMA) as to the major contributing cause (MCC) of Claimant’s need for ongoing treatment, and further erred in awarding Claimant’s requested evaluation and treatment with a podiatrist based on the JCC’s evaluation of the EMA’s opinion. Accordingly, we reverse and remand for further findings relating to the EMA’s opinion.

Background

Claimant broke his right ankle in 1987. Approximately two years later, Claimant began his employment as a courier/driver with the E/C. Claimant had occasional pain in his right ankle prior to his employment, but it was manageable and did not prevent him from performing his job duties. In November 2001, Claimant sought medical treatment for pain in his right ankle. Claimant was referred to a podiatrist in February 2003.

Claimant filed a petition for benefits (PFB) seeking compensability for repetitive trauma to his right ankle and authorization of a podiatrist. Due to disagreements in the medical opinions regarding causation issues, the JCC appointed an EMA, Dr. April Chin. The JCC accepted the opinions of Dr. Chin, finding those opinions well-grounded in fact and logic. The JCC found that Claimant had a com-pensable repetitive trauma injury, specifically, an aggravation of the pre-existing ankle condition, as established by Dr. Chin. The JCC also found the aggravation was the MCC of Claimant’s need for ongoing treatment, and awarded the requested treatment with a podiatrist. This appeal followed.

Analysis

On appeal, the E/C argues competent, substantial evidence (CSE) does not support the JCC’s apparent rejection of the EMA’s opinion as to the MCC of his current need for treatment. Although the JCC here purported to accept the EMA’s opinions, the JCC mischaracterized those opinions. In the order, the JCC found:

6. I further find that the claimant’s employment and the physical job duties aggravated the claimant’s preexisting right ankle fracture. Dr. Chin’s testimony clearly and unequivocally establishes same, as does Dr. Augustin Bollo. The undisputed medical evidence is that the claimant currently needs further treatment for the right ankle. I find that the claimant’s employment and job duties aggravated and accelerated the need for treatment of the right ankle, and [sic] is compensable. See Delgado v. Blanco & Sons Catering, 606 So.2d 658 (Fla. 1st DCA 1992). I accept Dr. Chin’s opinion that the major contributing cause of the aggravation and acceleration of the claimant[’s] right ankle injury is the job duties with the employer. Because the claimant’s employment has aggravated and accelerated the need for treatment, I find that the major contributing cause standard and the criteria for compensability under F.S. 440.09 have been met.
7. I note some confusion in the concept of major contributing cause in the opinion of Dr. April Chin. However, as noted above, Dr. Chin clearly states the claimant’s employment aggravated and accelerated the claimant’s preexisting condi[901]*901tion, and that the preexisting condition now needs treatment. Dr. Chin clearly states that the major contributing cause of the aggravation and acceleration is the claimant’s employment and job duties. The record is devoid of any evidence of any other aggravating or accelerating factor. Accordingly, it comports with logic and reason that the employment duties are the major contributing cause of the current need for treatment. There is no evidence before the undersigned that the claimant would need the same current level of care and treatment had the claimant not had employment duties with the employer.

In explaining the noted “confusion” in Dr. Chin’s opinions on the MCC of Claimant’s need for treatment, the JCC stated:

8. I note a portion of Dr. Chin’s opinion states that the preexisting condition is the major contributing cause of the need for treatment. However, this portion of her opinion cannot be read in a vacuum, and cannot be read with blinders on to ignore or exclude her other opinions in this case. The totality of her opinion must be considered, as well as the specific facts of the case, in reaching the ultimate conclusions. I decline to read Dr. Chin’s opinion in a vacuum as argued by the E/SA. When considering the totality of Dr. Chin’s opinion, I accept her opinion that the claimant’s preexisting right ankle condition has been aggravated accelerated [sic] by his employment, and the aggravation and acceleration alone require treatment. I accept Dr. Chin’s opinion that the major contributing cause of the aggravation and acceleration was the industrial accident. I accept that Dr. Chin noted no other aggravating factor other than the employment.

(emphasis added).

Dr. Chin answered two questions posed to her in the EMA appointment letter. Specifically, Dr. Chin opined, “In regard to the first question, whether the employment with Federal Express was a major contributing cause for permanent aggravation to the pre-existing condition, my answer is yes.” Dr. Chin continued, “And for the second question, regarding whether the employment with FedEx was a major contributing cause for the current need of treatment, my answer is no.” Consistent with those answers, Dr. Chin’s testimony was that the work-related aggravation was not the MCC of Claimant’s current need for treatment. Similarly, Dr. Chin’s EMA report indicated that the MCC for Claimant’s current need for treatment was the pre-existing ankle fracture sustained in 1987. By awarding the requested medical treatment, the JCC effectively rejected the EMA’s opinion that Claimant’s pre-exist-ing condition was not the MCC of his need for treatment. The JCC was not entitled to reinterpret the EMA’s opinions in this manner.

Claimant had the burden to prove that the resulting aggravation of the pre-exist-ing condition was the MCC of his need for treatment under section 440.09(l)(b), Florida Statutes (2002). That statute provides:

If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains the major contributing cause of the disability or need for treatment.

§ 440.09(l)(b), Fla. Stat. (2002). See Tice v. Albertson’s & Specialty Risk Servs., 940 So.2d 1258 (Fla. 1st DCA 2006) (reversing denial of benefits where the JCC erred in [902]*902rejecting the EMA’s opinion that claimant’s work activities were the MCC of aggravation of her pre-existing condition and remanding for further proceedings as to whether aggravation was the MCC of claimant’s need for treatment); City of Cooper City/Fla. Mun. Ins. Trust/Fla. League of Cities v. Farthing, 905 So.2d 925, 928 (Fla. 1st DCA 2005) (holding the MCC requirement of section 440.09(1)(b) is satisfied by proof that workplace exposure aggravated pre-existing disease); J & J Enters. v. Oweis, 733 So.2d 1149, 1150 (Fla.

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Related

Delgado v. Blanco & Sons Catering
606 So. 2d 658 (District Court of Appeal of Florida, 1992)
Morris v. Swanson
940 So. 2d 1256 (District Court of Appeal of Florida, 2006)
J & J ENTERPRISES v. Oweis
733 So. 2d 1149 (District Court of Appeal of Florida, 1999)
City of Cooper City v. Farthing
905 So. 2d 925 (District Court of Appeal of Florida, 2005)
Mellon SEC. & Sound v. Custer
687 So. 2d 1372 (District Court of Appeal of Florida, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
77 So. 3d 899, 2012 Fla. App. LEXIS 968, 2012 WL 178367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-express-corp-v-lupo-fladistctapp-2012.