FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
of Accident: March 13, 2015.
appeal from an order of Judge of Compensation Claims.
Marjorie Renee Hill, Judge.
Christopher J. DuBois and Mary E. Cruickshank of DuBois &
Cruickshank, P.A., Tallahassee, for Appellants.
N. Tipton and Daniel L. Hightower of Daniel L. Hightower,
P.A., Ocala, for Appellee.
workers' compensation case, the Employer/Carrier
challenge an order awarding Claimant temporary partial
disability benefits and rejecting the affirmative defense of
misrepresentation under paragraphs 440.09(4)(a) and
440.105(4)(b), Florida Statutes (2014). Because the record
contains competent, substantial evidence supporting the Judge
of Compensation Claims' conclusion that Claimant did not
make intentional misrepresentations for the purpose of
obtaining workers' compensation benefits, we affirm that
ruling. But we reverse and remand the temporary partial
disability award, because the determination that the
workplace injury is the major contributing cause of
Claimant's disability and need for medical care is not
based on competent, substantial evidence.
reported that she injured her neck while transporting a
wheelchair-bound passenger on March 13, 2015. The
Employer/Carrier accepted compensability of the workplace
injury and authorized medical care with Dr. Trimble, an
orthopedic surgeon. Dr. Trimble ultimately opined that the
major contributing cause of Claimant's neck complaints is
preexisting degeneration of the cervical spine, not the
workplace injury. Dr. Lowell, another orthopedic surgeon,
later provided Claimant's medical care and recommended
surgery of the cervical spine.
filed a claim for temporary partial disability benefits in
light of Dr. Lowell's surgical recommendation. The
Employer/Carrier defended the claim, in part, on the ground
that the workplace injury is not the major contributing cause
of Claimant's neck condition, based on Dr. Trimble's
expert opinion and the expert opinion of Dr. Rumana, the
Employer/Carrier's independent medical examiner.
subsection 440.09(1), Florida Statutes (2014), an
employer/carrier is responsible for providing benefits only
where the accidental compensable injury is the major
contributing cause of any resulting injuries. Thus, Claimant
bore the burden of persuasion to prove that the compensable
workplace injury is the major contributing cause for the need
for the requested benefits. See Babahmetovic v. Scan
Design Fla., Inc., 176 So.3d 1006, 1008 (Fla. 1st DCA
2015); Checkers Restaurant v. Wiethoff, 925 So.2d
348, 350 (Fla. 1st DCA 2006). In accordance with the statute,
a major contributing cause is the cause that is more than 50%
responsible for the injury, when compared to all other causes
combined for which treatment or benefits are sought. §
440.09(1), Fla. Stat. (2014). Furthermore, major contributing
cause must be demonstrated by medical evidence only, and
"[p]ain or other subjective complaints alone, in the
absence of objective relevant medical findings, are not
to the Judge of Compensation Claims, Dr. Lowell opined that,
"assuming Claimant's neck has been asymptomatic
since the early 2000s, " the workplace injury is the
major contributing cause of the need for surgery and related
disability. But Dr. Lowell never actually testified that the
workplace injury is the major contributing cause of the need
for cervical surgery.
Lowell testified that Claimant specifically told him that she
never had any previous symptoms or treatment of the neck.
Even with this history, Dr. Lowell initially indicated that
the major contributing cause issue here "falls in a gray
zone." Later, after reviewing Claimant's prior
medical records, the doctor agreed that the workplace injury
is not the major contributing cause of Claimant's current
condition. When asked by Claimant's attorney if the
workplace injury would be the major contributing cause of the
need for surgery, assuming Claimant had some prior neck
complaints but none after the early 2000s, Dr. Lowell did not
directly answer the question. Instead, he stated that he
"would have to conclude the accident was responsible for
the new onset of symptoms, " if Claimant gave him
"accurate and complete" information"; however,
he said, "those conclusions [are] more difficult to
render" when the information is not accurate and
complete. At no point did Dr. Lowell indicate that the
information necessary to make a causal connection would not
include all of Claimant's pertinent medical history. This
opinion, as qualified, does not match the facts regarding
Claimant's past medical history, including her previously
reported neck pain. Thus, Claimant failed to carry her burden
of persuasion, as she did not show that the need for the
surgery was linked to the workplace accident.
therefore reverse the award of temporary partial disability
benefits associated with the recommended medical treatment
and remand for ...