Geoffrey Meehan v. Orange County Data & Appraisals and Johns Eastern Company, Inc. , 272 So. 3d 458 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-1076
_____________________________
GEOFFREY MEEHAN,
Appellant,
v.
ORANGE COUNTY DATA &
APPRAISALS and JOHNS EASTERN
COMPANY, INC.,
Appellees.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
Thomas W. Sculco, Judge.
Date of Accident: September 30, 1997.
March 20, 2019
M.K. THOMAS, J.
In this workers’ compensation appeal, Geoffrey Meehan
(“Claimant”) argues that the Judge of Compensation Claims
(“JCC”) erred in denying his claims for medical care, costs, and
attorney’s fees related to an exposure at work. Because the parties
entered into a broad stipulation in which the Employer/Carrier
(“E/C”) accepted compensability of the work-related exposure and
“building related illness” and the E/C failed to demonstrate a break
in the causal chain, we agree, and reverse and remand the order
on appeal.
I. Facts
From 1995 through 1997, the Claimant worked on the sixth
floor of a building in Orlando. The Claimant described the building
conditions as dismal with leaks in the ceilings and blackish
growths on wall tiles. Employees in the building began to
experience breathing problems. Asbestos was later discovered, and
employees were removed from all floors except for the sixth floor
where the Claimant worked. The employees hired by the building
renovation company wore body suits and masks while working on
the sixth floor near the Claimant’s work space. Yet, the Claimant
was not provided any protective gear. The Claimant later
developed breathing problems and reported his illness to his
Employer.
Subsequently, the E/C entered into a broad stipulation with
the Claimant in which it accepted compensability of the work
exposure. Additionally, the E/C accepted liability for “building
related illness associated with indoor air quality problems,” with
an accident date of September 30, 1997. Medical care was
authorized with a pulmonologist. The JCC approved this joint
stipulation by order in 1998.
In 2002, Dr. Varraux, the authorized pulmonologist,
diagnosed the Claimant with “recurrent sinus, acute bronchitis,
reactive airway disease, rhinitis, sinusitis, rhinosinopulmonary
syndrome, and occupational-induced asthma.” He prescribed
inhaler bronchiodilators, among other medications. The E/C
continued authorization of the medical care and the treatment
recommended.
Fifteen years later, the E/C issued a Notice of Denial
terminating all further medical treatment to the Claimant. The
insurance adjuster confirmed the E/C’s decision to deny further
medical care was based solely on a peer review report. In its Notice
of Denial, the E/C asserted the work accident was no longer the
major contributing cause (“MCC”) of the need for medical
treatment. In response, the Claimant filed petitions for benefits
(“PFBs”) seeking reauthorization of Dr. Varraux, payment of his
medical bills, costs and attorney’s fees. The E/C filed a formal
response to the PFBs asserting the work accident was no longer
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the MCC and that the treatment and medications were not
medically necessary.
After denying all further medical care, the E/C obtained an
independent medical evaluation (“IME”) with Dr. Brooks, an
internal medicine specialist with a subspecialty in pulmonary
medicine. Dr. Brooks diagnosed the Claimant with vocal cord
dysfunction (“VCD”), unrelated to workplace exposure. In his
opinion, the Claimant did not suffer from asthma and, therefore,
did not need the asthma medications prescribed by Dr. Varraux.
Dr. Brooks testified that he found no evidence of sinusitis, but he
did diagnose allergic rhinitis, which he opined was also unrelated
to the workplace exposure.
Dr. Varraux testified that the Claimant had “got[ten] worse”
over time. He maintained his opinion on diagnoses and treatment
recommendations. With respect to Dr. Brooks’ diagnosis of VCD,
he disagreed. He reiterated his diagnoses, inclusive of asthma, and
his opinion that the Claimant’s need for ongoing medications for
all of his conditions and symptoms to be medically necessary and
causally related to the work exposure.
Prior to merits hearing, the parties filed Uniform Pre-Trial
Stipulations in which the E/C raised the following specific
defenses: 1) The industrial accident is no longer the MCC of the
need for treatment or disability; and 2) the prescriptions are not
medically necessary. No EMA was appointed. 1
Following the merits hearing, the JCC entered an order
denying all claims. The JCC accepted the testimony of Dr. Brooks
1 Section 440.13(9)(c), Florida Statutes, dictates that the JCC
“shall” appoint an EMA when there is a “disagreement in the
opinions of the health care providers.” Here, the parties expressly
waived appointment of an EMA and stipulated on the record that
neither would raise the EMA issue on appeal. The JCC did not sua
sponte appoint an EMA, and as agreed, neither party raised the
EMA issue on appeal. Because a JCC’s failure to appoint, on his
own, an EMA is not fundamental error, the issue is not addressed
on appeal. See Quiroga v. First Baptist Church at Weston, 124 So.
3d 936, 937 (Fla. 1st DCA 2013).
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over that of Dr. Varraux, to conclude that, generally speaking,
“asthma” treatment was not medically necessary because the
Claimant did not have asthma. The JCC noted the Claimant had
not made a claim for authorization of treatment for VCD and
allergic rhinitis. The JCC observed, “The fact that Dr. Varraux’s
mistake in diagnosis is understandable may make his conduct
‘reasonable’, but it does not make his treatment ‘medically
necessary’ under the statute.”
On appeal, the Claimant argues that the E/C cannot deny his
claim for medical treatment because it had previously stipulated
to compensability of the conditions treated by Dr. Varraux. 2
Whether the diagnosis is appropriately VCD or not, the Claimant’s
continued symptoms and need for treatment are simply part of the
compensable conditions accepted by the E/C. Further, no break in
the causal chain between the work exposure and the need for
treatment has occurred because the Claimant’s symptoms and
conditions have been present since the work exposure and simply
had not yet been diagnosed or developed as a sequela of the
compensable conditions. Alternatively, the Claimant argues that
the VCD diagnostic issue supplants only his asthma and has no
effect on the other conditions diagnosed and treated by Dr.
Varraux. Accordingly, Dr. Varraux should remain authorized to
treat the remaining compensable conditions and the VCD because
the compensable conditions caused the VCD. The E/C counters
that VCD is a different condition from asthma requiring different
medications, therefore, the treatment currently being provided is
not medically necessary.
II. Analysis
Factual findings made by the JCC are reviewable for
competent, substantial evidence (“CSE”); to the extent the JCC’s
ruling involved an interpretation of law, review is de novo. See
Mylock v. Champion Int’l, 906 So. 2d 363, 365 (Fla. 1st DCA 2005).
2 Neither of the parties raised argument that the order
approving the joint stipulation was subject to modification under
section 440.28, Florida Statutes.
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A claimant has the burden to prove entitlement to workers'
compensation benefits. See Fitzgerald v. Osceola Cty. Sch. Bd., 974
So. 2d 1161, 1164 (Fla. 1st DCA 2008). But, once a claimant has
established compensability of an injury, via prior ruling or a
stipulation, the E/C cannot challenge the causal connection
between the work accident and the injury. Engler v. Am. Friends
of Hebrew Univ., 18 So. 3d 613, 614 (Fla. 1st DCA 2009). The E/C
may only question the causal connection between the injury and
the requested benefit. Id. The E/C bears the burden of proof “to
demonstrate a break in the causation chain, such as the occurrence
of a new accident or that the requested treatment was due to a
condition unrelated to the injury which the E/C had accepted as
compensable.” Jackson v. Merit Elec., 37 So. 3d 381, 383 (Fla. 1st
DCA 2010); see also Perez v. Se. Freight Lines, Inc., 159 So. 3d 412,
414 (Fla. 1st DCA 2015) (“a ‘break’ is understood to occur when the
work-related cause drops to 50% or less of the total cause of the
need for the requested benefit.”). Here, the E/C did not assert that
there has been any break in the chain of causation or provide
evidence to support any such break occurred. By the E/C’s
stipulation of compensability, the Claimant was excused of the
burden to reestablish causation.
Dr. Brooks opined that asthma is no longer the MCC of the
need for treatment as he contests that the Claimant suffers from
asthma. However, he declined to testify that the “building-related
illness” was not the MCC of the need for treatment. Dr. Brooks also
clarified that “as far as I understand” the Claimant was taking
only asthma medications. In contrast, Dr. Varraux testified that
he was prescribing medications for multiple conditions, in addition
to asthma. Granted, despite the E/C’s acceptance of compensability
of the work-related exposure and illness, the Claimant retained
the burden to establish other aspects of proof required by statute,
such as the medical necessity of the requested benefits. See §
440.13(2)(a), Fla. Stat. (2013). He did so through the testimony of
Dr. Varraux. Dr. Varraux testified that all of the prescriptions the
Claimant is currently being prescribed are medically necessary for
“the conditions for which” he was being treated. Yet, Dr. Brooks
opined only that the VCD exists instead of the asthma. With
respect to the rhinitis, Dr. Brooks agreed that the Claimant did, in
fact, suffer from this condition. Dr. Varraux diagnosed and has
treated the Claimant for this condition since 2002. The E/C did not
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elicit any testimony from Dr. Brooks as to any break in the causal
chain relating to diagnosis and continued treatment of rhinitis.
The Claimant does have compensable injuries, by stipulation.
He has a “building related illness associated with indoor air
quality problems.” Notably, the stipulation does not specify
“pulmonary” conditions. However, the JCC failed to recognize the
legal significance of the E/C’s broad stipulation. See Jackson, 37
So. 3d at 383. The JCC interpreted Dr. Brooks’ testimony as
satisfying the E/C’s burden of proving a break in the causal chain.
However, Dr. Brooks’ testimony clearly demonstrates his belief
that the Claimant was misdiagnosed and that he suffers from
VCD, not asthma. The Claimant’s symptoms have not
substantially changed since the compensable exposure. The E/C
may not now escape its acceptance of compensability with an
argument of misdiagnosis. Of note, Dr. Brooks testified that the
Claimant suffers from the alternative diagnosis of VCD which
“may simulate asthma.” Thus, Dr. Brooks’ testimony is not CSE
to support the JCC’s ruling that the medical treatment was not
necessitated by the “building related illness associated with indoor
air quality problems” or that a break in the causal chain had
occurred since the joint stipulation. Dr. Brooks established only
that there may exist a dispute in the appropriate diagnosis but
that the “building related illness associated with indoor air
quality” suffered by the Claimant, albeit potentially varying in
degree, remained. The conditions and symptoms for which the E/C
accepted responsibility continue to be experienced by the
Claimant.
As in Jackson, this dispute might never have arisen if the
parties took care to define the compensable injury. A broad
stipulation of this kind “does little in limiting the E/C’s area of
responsibility, nor does it give the Claimant guidelines as to what
treatment he should be requesting from the E/C.” Jackson, 37 So.
3d at 383. Asking the doctor whether the current treatment is
related to the 1997 accident without providing the legal posture of
the case is not likely to result, as it failed to do here, in an opinion
supporting a break in the causal connection. Likewise, the JCC
failed to address: 1) the medical necessity of the other treatment
Dr. Varraux was providing for conditions other than asthma; and
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2) the distinction, if any, between the rhinitis Dr. Varraux had
been treating since 2002 and that which Dr. Brooks diagnosed.
Because CSE does not exist to support the JCC’s denial of all
medical care, the order on appeal is reversed. Although Dr. Brooks
testified that the Claimant did not have asthma, he opined that
the Claimant had been misdiagnosed and the correct diagnosis
was VCD. Dr. Brooks declined to testify that the “building-related
illness” was not the MCC of the Claimant’s need for ongoing
treatment. No evidence was introduced by the E/C that the
Claimant’s symptoms changed since the date of the joint
stipulation or that new, unrelated conditions or symptoms had
arisen since the exposure was accepted as compensable.
Accordingly, the order of the JCC is reversed and the matter is
remanded for entry of an order granting the claims requested.
REVERSED and REMANDED for entry of an order consistent
with this opinion.
B.L. THOMAS, C.J., and JAY, J., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Richard H. Weisberg, Sanford, and Bill McCabe, Longwood, for
Appellant.
Kristen L. Magana of Broussard, Cullen & Blastic, P.A., Orlando,
for Appellees.
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