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Olvera v. Hernandez Construction of SW Florida Inc.

Florida Court of Appeals, First District

November 15, 2019

Angel Olvera, Appellant,
v.
Hernandez Construction of SW Florida Inc. and U.S. Administrator Claims, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          Date of Accident: May 21, 2015.

          On appeal from an order of the Judge of Compensation Claims. Frank Clark, Judge.

          Michael J. Winer of Law Office of Michael J. Winer, P.A., Tampa, for Appellant.

          Daniel R. Goodman of Eraclides, Gelman, Hall, Indek, Goodman, Waters & Traverso, Fort Myers, for Appellees.

          Per Curiam.

         Angel Olvera (Claimant) appeals the Judge of Compensation Claim's order denying his claim for temporary partial disability (TPD) benefits under section 440.15(4), Florida Statutes (2014). In the order, the judge (JCC) found that Claimant was not entitled to these benefits because the expert medical advisor (EMA) opined that Claimant reached maximum medical improvement (MMI) as of May 31, 2016, and remained at MMI "unless and until" he underwent additional surgery. We reverse because the JCC's interpretation of the EMA's testimony is not supported by competent substantial evidence and ignores his unambiguous and presumptively correct opinion that Claimant is not at MMI because he needs surgery. Accordingly, we find it unnecessary to address the other arguments raised in this appeal.

         I

         Claimant, a carpenter/roofer, sustained a severe fracture to his left arm when he fell from a roof on May 21, 2015. The Employer/Carrier (E/C) accepted compensability of Claimant's workplace injuries and authorized medical care with Dr. Leach, an orthopedic surgeon. Dr. Leach performed two surgeries, but Claimant continued to have numbness, tingling, and pain in the left arm. On May 31, 2016, Dr. Leach placed Claimant at MMI and assigned a permanent impairment rating along with permanent restrictions of no lifting in excess of 20 pounds and limited carrying/pulling/pushing up to 40 pounds, infrequently. Dr. Leach did not recommend any further treatment. Claimant did not return to work.

         In June 2018, Claimant underwent an independent medical examination by Dr. Hussamy, another orthopedic surgeon. As a result of this exam, Dr. Hussamy concluded that Claimant is not yet at MMI and is incapable of working. He recommended electrodiagnostic studies (EMG/NCVs) of the upper extremities to determine the degree of ulnar neuropathy on the left side. He also indicated that Claimant could require additional surgery to include submuscular ulnar nerve transposition and capsular release of the left elbow.

         In July 2018, Claimant filed a petition for benefits (PFB) seeking, among other things, payment of TPD benefits from May 31, 2016, to the present. The E/C defended the TPD claim on the ground that Claimant was at MMI per Dr. Leach. The JCC appointed an expert medical advisor (Dr. Klein) to resolve the conflict in medical opinion. The JCC requested Dr. Klein address specific questions including whether Claimant requires additional treatment or diagnostic testing, what treatment or testing is recommended, and whether Claimant has reached at MMI.

         In his report, Dr. Klein stated that he recommended electrodiagnostic studies and additional surgery. Based on these recommendations, he also answered "no" to the question whether Claimant has reached MMI. When deposed, Dr. Klein confirmed the opinions expressed in his report. In fact, by this time, the electrodiagnostic studies had been completed and, according to Dr. Klein, the results confirmed his opinion on surgery.[*] However, when asked a leading question by the E/C's attorney, he agreed that Claimant would be at MMI in May 2016 "if he does not have surgery."

         At the final hearing, Claimant testified that he wishes to undergo the surgery. In the final order, the JCC recited the EMA's testimony and concluded that "it is Dr. Klein's opinion that Claimant remains at MMI as of May 31, 2016 unless or until he undergoes more surgery." In reaching this conclusion, he found that Claimant's desire to have surgery was "not dispositive." In an order denying Claimant's subsequent motion for rehearing, the JCC elaborated further that he did not find the EMA's opinion to be clear and unequivocal. According to the JCC, Dr. Klein had two opinions regarding MMI, "each dependent upon whether Claimant ...


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