final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
of Accident: May 21, 2015.
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.
R. Goodman of Eraclides, Gelman, Hall, Indek, Goodman, Waters
& Traverso, Fort Myers, for Appellees.
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.
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.
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.
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.
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
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 ...