GALLAGHER BASSETT SERVICES-ORLANDO v. Mathis

990 So. 2d 1214, 2008 WL 4287159
CourtDistrict Court of Appeal of Florida
DecidedSeptember 22, 2008
Docket1D07-5234
StatusPublished
Cited by1 cases

This text of 990 So. 2d 1214 (GALLAGHER BASSETT SERVICES-ORLANDO v. Mathis) 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
GALLAGHER BASSETT SERVICES-ORLANDO v. Mathis, 990 So. 2d 1214, 2008 WL 4287159 (Fla. Ct. App. 2008).

Opinion

990 So.2d 1214 (2008)

GALLAGHER BASSETT SERVICES-ORLANDO and Delta Health Group d/b/a Windsor Manor, Appellants,
v.
Billie Gene MATHIS, Appellee.

No. 1D07-5234.

District Court of Appeal of Florida, First District.

September 22, 2008.

*1215 William H. Rogner and W. Rogers Turner, Jr., of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants.

David P. Dearing, Jacksonville, for Appellee.

PER CURIAM.

The employer/carrier (E/C) appeal a final order of the Judge of Compensation Claims (JCC) awarding medical and indemnity benefits to the appellee, Billie Gene Mathis (Mathis), insofar as the award authorized benefits and further evaluation and treatment of Mathis' cervical (neck) condition. E/C do not challenge the compensability of Mathis' shoulder injury and Dr. Kilgore's opinion that the August 13, 2006, industrial accident is the major contributing cause (MCC) of Mathis' shoulder condition. Because no competent, substantial medical evidence supports the JCC's conclusion that the industrial accident is the MCC of Mathis' neck condition, we are constrained to reverse that portion of the compensation order. We affirm the compensation order in all other respects.

On August 13, 2006, Mathis was employed as a certified nursing assistant by a nursing home when she tried to lift an elderly, heavier resident from a chair. Allegedly, she sensed a jerk or snap and immediately experienced sharp right arm, right shoulder, and neck pain. Mathis completed her night shift and reported to work the next day for her regular eight-hour shift, but she was hurting. After completing the August 14 shift, Mathis was physically unable to return to work again due to her injuries. It is well-documented that Mathis suffered arthritis and neck, right shoulder, and right arm pain consistently for at least 10 months before the industrial accident. On August 17, 2006, Mathis saw Dr. Restea, who took her off work. According to the testimony of Mathis' husband and the factual testimony of Dr. Shiriaeva (Mathis' personal primary physician) and Dr. Restea, Mathis reported significantly increased symptoms of pain and swelling in her neck, right arm, and right shoulder following the industrial accident.[1]

An MRI of the right shoulder was performed on August 31, 2006. An MRI of the cervical spine was taken on September 1, 2006. E/C's independent medical examiner (I.M.E.), board-certified orthopedic surgeon Dr. Rogozinski, saw Mathis on March 19, 2007. Mathis' I.M.E. is board-certified neurologist Dr. Kilgore, who saw her on April 12, 2007.

The cervical MRI indicated neck problems. Mathis filed a petition for benefits seeking medical care, past-due indemnity benefits, penalties, interest, costs, and attorney's *1216 fees. E/C defended on the grounds, inter alia, that no accident or injury had arisen out of or in the course and scope of employment; that no timely notice of the accident was given; that the industrial accident was not the MCC of Mathis' conditions, need for treatment, or disability, especially relating to the neck; that no temporary total disability (TTD) or temporary partial disability (TPD) benefits were due or owing; that Mathis' wage loss was not causally related to the industrial accident; that no medical evidence substantiated disability; and that no penalties, interest, costs, or attorney's fees were due or owing. E/C denied compensability, alleging the medical conditions at issue are all pre-existing.

Specifically citing the deposition testimony of Dr. Kilgore, the JCC determined that Mathis' ability to work is significantly restricted, that E/C failed to show that they made any reasonable effort to accommodate these restrictions, and that Mathis is entitled to TPD benefits as a matter of law from August 15, 2006, through the date (September 7, 2007) of the final order. The JCC found that Mathis had satisfied the statutory reporting requirement for work-related injuries. The JCC awarded TPD benefits plus penalties, interest, costs, and attorney's fees, and authorization of an appropriate physician to evaluate and treat Mathis. In pertinent part, E/C's motion for rehearing asserted that no competent, substantial medical evidence supports the conclusion that the industrial accident is the MCC of Mathis' present neck condition. Upon the denial of their motion for rehearing, E/C filed this appeal.

The JCC's factual findings are presumed correct and are reviewed for competent, substantial evidence. See Trujillo v. S. Wine & Spirits, 525 So.2d 481, 483 (Fla. 1st DCA 1988); Rinker Materials Corp. v. Hill, 471 So.2d 119, 120 (Fla. 1st DCA 1985). E/C do not challenge the compensability of the shoulder injury and Dr. Kilgore's opinion that the industrial accident is the MCC of Mathis' shoulder condition. The only issue on appeal is the compensability of Mathis' cervical condition. E/C question whether competent, substantial medical evidence supports the JCC's factual findings relating to Mathis' compensable neck injuries:

As for the medical opinion testimony, I accept the testimony of Dr. Kilgore over Dr. Rogozinski with regard to diagnosis and causation. Dr. Kilgore testified that after examination of the claimant and review of her past medical records, including MRI reports made before August 13, 2006 [the date of the industrial accident], it was his medical opinion within a reasonable degree of medical certainty that Mrs. Mathis suffered a right rotator cuff tear and a significant exacerbation of her preexisting cervical degeneration resulting in greater pain and new radiculopathy in her right upper extremity. Because the rotator cuff tear and right upper extremity radiculopathy occurred in temporal association with the lifting of the resident as described by Mrs. Mathis, Dr. Kilgore opined that this event was the major contributing cause of her present condition. He also opined that further diagnostic studies and treatment would be necessary to determine whether there is additional cervical disc injury following the work accident, and whether there is combined involvement between the neck, shoulder and arm conditions.

The shoulder and neck MRIs showed a 95% supraspinatus tear[2] and two-level discherniations *1217 in the neck at C5-6 and C6-7 with some disc extrusion, by report. Dr. Kilgore testified that Mathis had continuous arm pain that required analgesics daily. She was not actively working. A spinal examination revealed a loss of rotation in the neck and spasm and cording of the muscles in the posterior cervical and inner scapular area. Mathis' low back examination was normal. Dr. Kilgore's diagnostic impression was a right rotator cuff tear, almost complete cervical radiculopathy, right possible, and C5-6 and C6-7 disc herniations with underlying cervical spondylosis.

Dr. Kilgore was asked whether he had an opinion (based on his examination, the medical records, and the deposition testimony of Dr. Shiriaeva) as to whether Mathis' shoulder injury is "directly related" to the industrial accident injury described by Mathis. Over an objection, Dr. Kilgore answered:

I do have an opinion, and that opinion is that the shoulder injury and rotator cuff tear occurred in temporal association with the lifting of the patient that she described and was causative in the shoulder pain developing.

Next, Dr. Kilgore was asked whether the industrial accident is the MCC of Mathis' shoulder condition. Over another objection, the doctor opined affirmatively. Dr.

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