Joe Sullivan v. NuC02, LLC/Broadspire, No. 1D19-3275, First District Court of Appeal, Decision date: Dec. 9, 2020

No competent or substantial evidence to support that employer/carrier only accepted the aggravation; therefore, they waived the ability to deny compensability. As such, the apportionment defense also fails, and full permanent impairment benefits were owed

The claimant appealed the Judge of Compensation Claims’ order, which apportioned impairment benefits and future medical treatment. The claimant had injured his right shoulder in a compensable accident in August 2016. Following an MRI and one-time change request, Dr. Steen performed right shoulder surgery in February 2017. In January 2018, the claimant was placed at maximum medical improvement with an 18% permanent impairment rating. After conferencing with the employer/carrier’s attorney, Dr. Steen indicated that the claimant’s pre-existing condition was the major contributing cause of the need for any future medical care. The doctor also apportioned 60% to the pre-existing condition and 40% to the work accident. Thereafter, the employer/carrier de-authorized the doctor from providing further care and reduced the claimant’s impairment benefits based on the apportionment per the doctor.

Relative to the defense of major contributing cause, the claimant raised waiver under the 120-day rule.

Following each parties IMEs, the judge appointed an Expert Medical Advisor (EMA) and afforded those opinions as presumptively correct. Based on the EMA’s opinion, the judge ordered that the employer/carrier to pay 70% of the impairment benefits based on the 18% permanent impairment rating. The judge also awarded authorization of Dr. Steen, but only to provide palliative care for the aggravation to the shoulder.

The First District Court of Appeal reversed the judge, finding that there was no competent substantial evidence to support that the employer/carrier had only accepted the aggravation. Therefore, the employer/carrier had waived the ability to deny compensability. As such, the apportionment defense also failed, and the court indicated that the full permanent impairment benefits were owed by the employer/carrier.

The employer/carrier cross appealed the judge’s acceptance of Dr. Steen’s 18% permanent impairment rating over the EMA doctor’s opinion of 12%. The court indicated that because the employer/carrier had listed the impairment rating as 18% on the pre-trial stipulation, there was not enough information to show that they expressly disputed the total permanent impairment rating.

The employer/carrier also argued that the judge erred by awarding continued care with Dr. Steen because they have the right to control the selection of the treating physicians. The court pointed out that the employer/carrier did select and authorize that doctor based on the claimant’s one-time change request. The court then turned to the issue of whether the employer/carrier had properly de-authorized Dr. Steen in April 2018. They noted that, as a general rule, a unilateral de-authorization of an authorized treating physician is not permitted. The statute and case law provide only a few exceptions to this general rule. The employer/carrier contended that their de-authorization was valid because the doctor had opined that the work injury was no longer the major contributing cause of the need for medical care. However, the employer/carrier did not prevail on that issue, so their argument failed.

The court reversed the judge’s order apportioning the claims for indemnity and medical benefits, affirmed the issues on cross-appeal and remanded for entry of an order consistent with the opinion.


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