Sierra v. Metropolitan Protective Services

188 So. 3d 863, 2015 Fla. App. LEXIS 14510, 2015 WL 5714621
CourtDistrict Court of Appeal of Florida
DecidedSeptember 30, 2015
DocketNo. 1D15-0094
StatusPublished
Cited by5 cases

This text of 188 So. 3d 863 (Sierra v. Metropolitan Protective Services) 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
Sierra v. Metropolitan Protective Services, 188 So. 3d 863, 2015 Fla. App. LEXIS 14510, 2015 WL 5714621 (Fla. Ct. App. 2015).

Opinion

PER CURIAM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred when he (1) failed to award a statutory attorney’s fee for successful prosecution of a medical benefit, which was resolved prior to trial; (2) failed to find that the Employer/Carrier (E/C) had waived the right to deny com-pensability of his post-traumatic stress disorder (PTSD); and (3) rejected Claimant’s Daubert objection to medical opinion testimony as “inappropriately preserved.” For the reasons discussed below, we modify the appealed order with regard to the attorney’s fee issue. We reverse and remand the second issue because it is unclear why the JCC rejected Claimant’s waiver argument based on the 120-day “pay and investigate” rule under subsection 440.20(4), Florida Statutes (2011). Finally, we affirm the third issue on appeal without further discussion, because the record does not demonstrate that the JCC abused his discretion with respect to the Claimant’s Daubert-related objection.

Facts

On April 1, 2012, Claimant was working as a security guard when he was attacked by a knife-wielding assailant. Claimant’s physical injuries were minor and he was treated the next day at the emergency room (ER) for a laceration (abrasion) to the left wrist and finger, and complaints of neck and low back pain. When discharged, Claimant was advised to follow up with two named doctors, one of whom was either a psychologist or psychiatrist. The E/C subsequently accepted compensability of the workplace accident, requested records from the ER, and sent Claimant the standard workers’ compensation informational letters; no further action was taken at that time.

Upon his return to work approximately one week after the workplace accident, Claimant requested, and was eventually allowed, to transfer to another location to get away from the place where he was attacked. Within the next few months, Claimant was involved in two non-work-related motor vehicle accidents (MVAs). The first MVA resulted in minor injuries; however, in the second MVA on July 23, 2012, Claimant sustained severe injuries to his right shoulder when the motor scooter he was riding was struck by a car in a hit- and-run. As a result of the second MVA, Claimant underwent surgical implantation of a metal rod in the right shoulder. He did not return to work after the second MVA.

In August 2012, Claimant filed a petition for benefits (PFB) seeking medical care. The E/C eventually authorized appointments to take place in January 2013, with Dr. Reyes, orthopedic surgeon, and Dr. Segal, psychiatrist. In the meantime, [865]*865Claimant received unauthorized psychiatric treatment through Medicaid for complaints of anxiety and depression that he attributed to the physical assault of his workplace accident as exacerbated - by his later MVA. Prior to the authorized medical appointments in January 2013, • Claimant was deposed by the E/C and revealed information about his history of psychiatric problems in Cuba, his post-accident MVAs; and his recent unauthorized psychiatric care obtained through Medicaid.

Claimant was first examined by Dr. Se-gal, the authorized psychiatrist, on January 24, 2013. Based on Claimant’s complaints of anxiety and nightmares about being stabbed, Dr. Segal diagnosed PTSD, prescribed medication, and recommended weekly psychotherapy. Dr. Segal also completed and signed a DWC-25 reporting form on January 24, 2013, which indicated that there was no preexisting condition and, that the workplace injury was the major contributing cause (MCC) of the psychiatric injury/illness in question. Claimant did not show ⅛ his follow-up appointment with Dr. Segal scheduled for February 21, 2013. By that time, Claimant had been seen by Dr. Reyes, the authorized orthopedic surgeon, who had placed him at maximum medical improvement for his left wrist laceration as of January 22, 2013,, and had assigned a 0% permanent impairment rating.

Claims and Defenses

In June 2013, Claimant filed another PFB seeking, inter alia, authorization for evaluation and treatment with a psychiatrist, authorization for psychotherapy and medication management as recommended by Dr. Segal, and the associated attorney’s fees and costs. At a mediation held on June 24, 2013, the E/C agreed to “schedule a follow up visit with Dr. Segal for treatment” and to “provide transportation for the psychiatric visits with Dr. Segal.” The E/C, however, took no action after the June 24, 2013, mediation to schedule the follow-up visit with Dr. Segal. Claimant filed yet another PFB on June 4, 2014, requesting continued authorization for treatment with the authorized psychiatrist and scheduling of an appointment. In its response to the PFB, the E/C stated: “Dr. Scott Segal remains authorized to perform treatment which is causally related to the Claimant’s industrial injuries” — but, at the mediation held on September 19, 2014, the E/C agreed to- schedule a follow-up appointment .with Dr. Segal “for evaluation only” and indicated that the issue of treatment with Dr. Segal remained outstanding. At . this same mediation, Claimant requested the JCC reserve jurisdiction on attorney’s fees and costs.

Claimant attended the evaluation appointment with Dr. Segal set by the E/C for September 30, 2014. Dr. Segal later testified that Claimant’s complaints at that time were basically the same and that there was no change in diagnosis. In the pretrial stipulation filed October 20, 2014, Claimant asserted claims for continued authorization with his authorized psychiatrist and for costs and. attorney’s fees in accordance with the June 4, 2Ó14, PFB. The E/C stipulated that Claimant’s “subsequent psychiatric condition” was accepted as related to the accident “to [the] extent [the] physical injury remained [the] major contributing cause of [the] need for psychiatric treatment/condition.” The E/C more specifically defended against the claim for psychiatric treatment by asserting that Claimant’s two non-work-related MVAs “served to break the chain of causation between the original work accident of 4/1/12 and claimant’s current need for psychiatric treatment, per § 440.09.” In support of its defense, the E/C submitted deposition testimony from its independent medical examiner (IME), Dr. Miller, that [866]*86675% of the cause of Claimant’s need for psychiatric treatment is attributable to the second MVA resulting in the right shoulder injury and 25% is attributable to the workplace accident.

Amended Final Order

At the merits hearing, Claimant argued that the E/C had waived the right to deny compensability of his PTSD by operation of subsection 440.20(4). Claimant also raised objections to Dr. Miller’s opinion testimony on causation, including an objection based on section 90.702, Florida Statutes (2013), governing the admissibility of expert testimony (also known as a Daubert objection). In the amended final order now' on appeal,1 the JCC overruled the Daubert objection based on a finding.that Claimant failed to “appropriately preserve” the objection during Dr. Miller’s deposition. With regard to Claimant’s waiver argument, the JCC noted the positions of the parties concerning subsection 440.20(4), but did not make any relevant findings. Instead, the JCC concluded that Dr. Segal’s somewhat equivocal causation testimony was not clear and convincing evidence to support a claim of a compensa-ble psychiatric injury under section 440.093, Florida Statutes (2011).

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Cite This Page — Counsel Stack

Bluebook (online)
188 So. 3d 863, 2015 Fla. App. LEXIS 14510, 2015 WL 5714621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sierra-v-metropolitan-protective-services-fladistctapp-2015.