Premier Community Healthcare Group, AmTrust North America of Florida and Associated Industries Insurance Company, Appellants,
Ana Rivera, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge. Date of Accident: June 9, 2017.
Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, for
Michael J. Winer of Law Office of Michael J. Winer, P.A.,
Tampa, for Appellee.
C.J., and Wolf, J., concur.; B.L. Thomas, J., dissents with
Thomas, J., dissenting.
workers' compensation case, Claimant had the burden of
proving her workplace injury is the major contributing cause
of the need for requested medical care; this was the sole
issue for determination by the Judge of Compensation Claims
(JCC). On appeal, the Employer/Carrier challenge the
JCC's determination in Claimant's favor based on the
evidence. Because I agree the record lacks competent
substantial evidence in support of the MCC determination, I
would reverse the order below.
a dental assistant, was injured while trying to stop a
patient from falling. The E/C initially accepted
compensability of Claimant's injuries to the low back and
neck (cervical spine), but later denied claims for cervical
injections and physical therapy when Claimant's medical
history revealed that she had a prior motor vehicle accident
and previous neck symptoms. Dr. Schulak, an orthopedic
surgeon authorized to treat the workplace injuries, testified
that Claimant never mentioned any neck or cervical
complaints to him. Dr. Davis, another orthopedic surgeon and
the E/C's independent medical examiner, testified
Claimant has objective findings of preexisting degenerative
disc disease. Ultimately, both doctors opined that the
workplace injury is not the major contributing cause of
Claimant's current need for medical treatment of the
relied on the medical records maintained by Dr. Tolli,
another authorized treating physician. In the appealed order,
the JCC found that the compilation of Dr. Tolli's records
sufficiently established that Claimant suffered injury to her
neck in the workplace accident. In particular, the JCC
emphasized both Dr. Tolli's notation that the requested
treatment for the cervical spine was on hold awaiting
authorization from the workers' compensation carrier and
the fact that Dr. Tolli did not relate the need for medical
care to any other cause. Although the JCC acknowledged the
contrary opinions from Drs. Schulak and Davis, he concluded
Dr. Tolli's opinions should be given greater weight
"based on the claimant's credible testimony and Dr.
Tolli's continuous treatment and examination of the
the statute, the accidental compensable injury must be the
MCC of any resulting injuries. § 440.09(1), Fla. Stat.
(2016). "Major contributing cause" is defined in
the statute as "the cause which is more than 50 percent
responsible for the injury as compared to all other causes
combined for which treatment or benefits are sought."
MCC "must be demonstrated by medical evidence
only." Section 440.09(1)(b) further provides that when a
work-related injury combines with a preexisting disease or
condition to cause or prolong disability of the need for
treatment, benefits are due "only to the extent that the
injury arising out of and in the course of employment is and
remains more than 50 percent responsible for the injury as
compared to all other causes combined and thereafter remains
the [MCC] of the disability or need for
treatment." (emphasis added). In the instant
case, however, the JCC did not make any findings concerning
any preexisting condition and found instead that the
workplace accident alone is the MCC of the need for the
recommended cervical treatment.
several narrative reports, Dr. Tolli describes Claimant as
having cervical and lumbar injuries resulting from a
work-related accident in June 2017, but he never directly
addresses the cause of the need for treatment. This
is true despite his references to a "pertinent past
medical history" of prior neck symptoms and the evidence
of degenerative cervical changes as shown on MRI. In short,
although the medical narrative reports relate Claimant's
neck symptoms to a work injury, there is no language
suggesting that work-related injury is the MCC of the need
for the requested medical benefits.
Dr. Tolli's records include the DWC-25 medical
treatment/status reporting forms which are required to be
completed for every office visit under the statute and the
administrative rules. See § 440.13(4)(a), Fla. Stat.
(2016); Fla. Admin. Code R. 69L-7.720 & 7.730(1)(b). This
form contains a specific section with questions concerning
the cause of the treatment and the MCC of the need for