Julio Sanchez v. Yellow Transportation/Gallagher Bassett

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-4231
_____________________________
JULIO SANCHEZ,
Appellant,
v.
YELLOW
TRANSPORTATION/GALLAGHER
BASSETT,
Appellees.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
Walter J. Havers, Judge.
Date of Accident: April 21, 2004.
September 21, 2020
PER CURIAM.
In this workers’ compensation case, Julio Sanchez
(“Claimant”) appeals the Judge of Compensation Claims’ (JCC’s)
order denying his claims for medical care for his lumbar spine. In
the order, the JCC found that Claimant did not prove entitlement
because he did not satisfy his burden of showing that the
workplace accident was the major contributing cause of the need
for the requested treatment. Because we find merit in Claimant’s
argument that he met his burden and was not required to provide
additional medical evidence of major contributing cause under the
circumstances presented here, we reverse.
I.
Under workers’ compensation law, the employer must pay
compensation and furnish medical benefits if an employee suffers
an accidental compensable injury arising out of and in the course
and scope of employment. See § 440.09(1), Fla. Stat. (2003). But
the accidental compensable injury must be the major contributing
cause (MCC) of any resulting injuries. Id. As defined in the statute,
MCC is “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.” Id. Here, the JCC concluded
that Claimant had the burden to prove MCC but failed to do so. To
the extent this issue involves the resolution of facts, our standard
of review is for competent substantial evidence (CSE); to the extent
it involves an interpretation of law, our standard of review is de
novo. See, e.g., Benniefield v. City of Lakeland, 109 So. 3d 1288,
1290 (Fla. 1st DCA 2013).
II.
Claimant, a truck driver, began working for Yellow
Transportation, Inc. (“Employer”) in 1991. Over the years, he
sustained several workplace injuries involving various body parts,
including the shoulders, neck, and low back. As found by the JCC,
one of these injuries occurred on April 21, 2004, when Claimant
“injured his lumbar spine while driving his truck on a very bumpy
road.” The Employer and its insurance carrier (“E/C”) accepted
compensability and authorized medical care with Dr. Cohen, an
orthopedic surgeon. At some point, this workplace injury was
consolidated with two other accidental injuries under a date of
accident of December 8, 2004.
In June 2014, the E/C changed servicing agents, but the
former servicing agent evidently did not transfer all the records for
the April 21, 2004, lumbar injury to the current servicing agent.
Although Claimant deposed two adjusters with the current
servicing agent, both adjusters, as found by the JCC, “had
tremendous difficulty explaining what happened in this claim”
before the 2014 transfer. Despite this lack of information, in
January 2016, the E/C entered into a stipulation with Claimant
2
that addressed several issues involving Claimant’s various
workplace injuries, including the lumbar spine.
In the stipulation, the parties first agreed that Claimant’s
cervical injury remained the MCC of the need for treatment, but
that the E/C were not precluded from challenging causation in the
future “should evidence of an intervening cause or unrelated
condition arise.” Pertinent to other injuries, the parties stipulated
that the E/C “continues to authorize Drs. Cohen and Wachsman to
treat the left shoulder, right shoulder, cervical and lumbar spines,
subject to the right to challenge causation in the future, as
mentioned above.” (Emphasis added).
According to Dr. Cohen’s medical records, Claimant received
treatment for his cervical spine in May 2014. Although Claimant
also complained of low back pain, Dr. Cohen did not provide a
related diagnosis or make any treatment recommendations for the
low back at that time. In February 2018, Claimant again reported
low back complaints to Dr. Cohen, but explained further that the
pain resulted from the truck driving incident that occurred
sometime before December 2004. At that visit, Dr. Cohen
diagnosed Claimant with intermittent low back pain syndrome
and L5/S1 degenerative disc disease. Upon Claimant’s return visit
in May 2018, Dr. Cohen expressly noted that he had been following
Claimant’s low back complaints “for a long time.” Dr. Cohen
subsequently recommended a lumbar MRI, which was performed
in June 2018.
In a follow-up visit that same month, Dr. Cohen reviewed the
MRI results and diagnosed Claimant with lumbar degenerative
disc disease and spondylosis with stenosis, most prominent at L5-
S1 and slightly less severe at L3-4 and L4-5. He recommended a
referral to pain management for the lower back complaints.
Approximately one year later, he recommended an L5-S1 epidural
steroid injection (ESI). Although the E/C paid for the lumbar MRI
and for all of Claimant’s visits with Dr. Cohen, they did not act on
either recommendation.
3
III.
In December 2018, Claimant filed a petition for benefits (PFB)
requesting authorization of the pain management recommended
by his authorized treating physician, Dr. Cohen. In May 2019,
Claimant filed a second PFB seeking authorization of the ESI,
which was also recommended by Dr. Cohen. In support of both
PFBs, Claimant attached DWC-25 medical reporting forms
completed by Dr. Cohen and listing his recommendations.
In the pretrial stipulation, the E/C conceded Claimant
sustained a compensable accident on April 21, 2004, but asserted
that the resulting injury was initially a lumbar strain that was “no
longer accepted.” In addition to disputing that the workplace
injury was the MCC of the current need for treatment, the E/C also
raised the defense that Claimant “suffered an intervening event”
which is the MCC of the need for any continued lumbar spine
treatment. In response, Claimant asserted, among other things,
that proof of MCC is unnecessary because the E/C cannot show any
intervening or competing cause.
At the final hearing, Claimant relied on medical records from
Dr. Cohen in support of his claims. Neither party submitted expert
medical opinion testimony. For the first time, the E/C raised an
additional defense that the recommended ESI was not medically
necessary. Claimant responded that the E/C waived this defense
by failing to plead medical necessity as an issue in the pretrial
stipulation. Although the JCC listed this defense in the final order,
he did not expressly rule on the waiver issue, and instead
ultimately concluded that it was unnecessary to reach the
matter—presumably in light of his denial based on MCC.
In the final order, the JCC rejected Claimant’s argument that
he did not have to establish MCC because the E/C accepted
compensability of a lumbar spine injury and had not provided
evidence of any intervening or competing cause. The JCC also
found that Dr. Cohen’s medical records were “unreliable” evidence
of MCC. Concluding that Claimant had therefore failed to satisfy
his burden of proving MCC, he denied the medical claims
accordingly.
4
IV.
Generally, the injured worker bears the burden of proving
entitlement to claimed medical benefits with evidence that the
compensable industrial injury is the MCC for the requested
medical treatment. See, e.g., Checkers Restaurant v. Weithoff, 925
So. 2d 348 (Fla. 1st DCA 2006). But, as this Court explained in
Meehan v. Orange County Data & Appraisals,
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.
272 So. 3d 458, 461 (Fla. 1st DCA 2019); see also Teco Energy Inc.
v. Williams, 234 So. 3d 816, 820-21 (Fla. 1st DCA 2017) (citing
Engler, 18 So. 3d at 614). Thus, once a claimant establishes
compensability of an injury in this manner, “[t]he 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.’” Meehan, 272 So. 3d at 461
(quoting Jackson v. Merit Elec., 37 So. 3d 381, 383 (Fla. 1st DCA
2010)).
Under this case law, the key to the MCC issue here is the
identity of the accepted compensable injury. According to
Claimant, the E/C accepted compensability of his low back injury,
without qualification and inclusive of the lumbar spine.
Significantly, the JCC specifically found that Claimant injured his
lumbar spine in the compensable April 21, 2004, accident and that
the E/C authorized Dr. Cohen to treat the lumbar spine. Although
the E/C argued that the accepted injury was only a lumbar strain
(a “minor” injury), they concede, as the JCC expressly noted, there
is no medical evidence of a lumbar strain. In fact, there is no
supporting evidence of a specific accepted diagnosis whatsoever.
The adjusters here freely admitted that they knew virtually
5
nothing about the 2004 back injury and lacked the necessary
records to find out more.
Furthermore, in 2016—more than ten years after the
purported acceptance of a lumbar strain only—the E/C agreed in
the joint stipulation to continue to provide medical care for
Claimant’s lumbar spine. If, as the E/C now contend, the accepted
injury was just a strain, it is unclear why they did not expressly
limit the stipulated treatment to a lumbar strain or why such a
“minor” injury still merited authorized medical care. The E/C
argue that the stipulation is not ultimately determinative here
because a compensable injury is a diagnosis, not simply a body
part. And, according to the E/C, they could not have accepted
Claimant’s degenerative condition of the lumbar spine because
this diagnosis did not exist until the June 2018 MRI.
We find the E/C’s argument unpersuasive on both the facts
and the law. Although a specific diagnosis could establish the
parameters of an injury accepted as compensable, the E/C
presented no evidence of the acceptance of a specific diagnosis for
this admittedly compensable injury. Furthermore, the fact that the
2018 MRI confirmed the presence of degenerative disc disease does
not prove that this diagnosis is not a part of the accepted lumbar
spine injury referenced in the 2016 joint stipulation. The E/C
presented no medical evidence suggesting that the degenerative
condition here did not exist in 2016 or could not be the natural
progression of the accepted injury.
We also find this Court’s opinion in Meehan to be particularly
instructive here. In that case, the claimant developed breathing
problems that he attributed to his work environment. 272 So. 3d
at 459. The employer/carrier entered into a broad stipulation
accepting compensability of the workplace exposure. Id. Years
later, they denied all future medical benefits because the
compensable accident was no longer the MCC of the need for
treatment. Id. at 459-60. Specifically, the medical evidence
suggested that the claimant’s symptoms, which had been treated
as asthma, actually indicated a diagnosis of vocal cord dysfunction
unrelated to work. Id. at 460.
6
In reversing the JCC’s subsequent denial of all future medical
care, this Court explained:
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 [employer/carrier’s] broad stipulation.
See Jackson, 37 So. 3d at 383.
272 So. 3d at 462. The Court went on to conclude that, given this
broad stipulation, the claimant there was not required to prove
MCC. Id. Instead, the employer/carrier had the burden of proving
a break in causation. Id.
In the Jackson case, 1 cited as authority in the Meehan opinion,
the parties signed a pretrial stipulation agreeing that the claimant
there sustained a “back” injury. Jackson, 37 So. 3d at 382. By
virtue of this stipulation, this Court found that the claimant met
his initial burden of proof. Id. at 383. Furthermore, the
employer/carrier had not demonstrated the necessary 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 [employer/carrier] had accepted as compensable.”
Id. Although the medical opinion evidence indicated that there
never was a relationship between the claimant’s back symptoms
and his original injury, the Court reversed the JCC’s denial of
benefits. Id. at 384. In doing so, the Court noted that
[t]his dispute might never have arisen if the parties and
the JCC took care to define the compensable injury. An
1 Although the Jackson case involved a causation standard
predating the adoption of MCC, this Court previously found that
its holding translates to the current MCC standard if a break in
causation is shown with evidence that the compensable injury is
no longer 50% or more of the cause of the need for the requested
benefits. Perez v. Se. Freight Lines, Inc., 159 So. 3d 412, 414 (Fla.
1st DCA 2015).
7
agreement that the back injury was compensable does
little in limiting the [employer/carrier’s] area of
responsibility, nor does it give Claimant guidelines as to
what treatment he should be requesting from the
[employer/carrier].
Id. at 383.
The E/C here entered into a similarly broad stipulation 2 that
did not define the accepted compensable injury any more narrowly
than the lumbar spine. As a result, the burden shifted to the E/C
to demonstrate a break in causation. The E/C assert that the 2018
diagnosis constitutes that break in causation, but again, offer no
evidence that this diagnosed condition did not exist at the time of
the 2016 stipulation or represents a condition unrelated to the
accepted injury. Recall as well that the E/C’s specific defense here
was that Claimant “suffered an intervening event, which is the
[MCC].” (Emphasis added). The JCC did not find evidence of any
intervening event, and we conclude that the record will not support
a finding of a break in causation on this or any other basis.
V.
Claimant also argues that the JCC erred in failing to “make a
legal finding” on the medical necessity defense. The E/C assert that
this issue—which appears to be based on Claimant’s waiver
argument—has not been preserved because Claimant did not
mention the medical necessity defense in his motion for rehearing
below. See, e.g., Hamilton v. R.L. Best Int’l, 996 So. 2d 233, 234
(Fla. 1st DCA 2008) (holding if error is one that first appears in a
final order, the aggrieved party must bring it to the judge's
attention by filing a motion for rehearing). Thus, according to the
E/C, in the event of reversal on the MCC issue, this case should be
remanded to the JCC for consideration of their defense that the
ESI is not medically necessary. But by the same token, however,
2 We agree with the JCC’s interpretation that the stipulation
language did not provide the E/C with any additional right to
challenge causation beyond that provided by law.
8
the E/C did not seek a rehearing below, or file a cross-appeal on
their own defense which is purportedly ripe for determination.
We find it unnecessary to address the preservation question
because the evidence of medical necessity here is unrefuted. Dr.
Cohen listed his ESI recommendation on that portion of the DWC-
25 reporting form for identifying medically necessary treatment.
The E/C offered no contrary medical opinion. In fact, during the
final hearing, the E/C presented no argument whatsoever in
support of this last minute defense. Given the record evidence,
there is no need for the JCC to make findings of medical necessity
on remand.
VI.
In sum, the JCC here erred when he ruled that Claimant bore
the burden of proving MCC and denied benefits because Claimant
did not satisfy that burden. For the reasons discussed above, we
reverse the order below and remand for entry of an order granting
the requested medical benefits.
REVERSED and REMANDED.
RAY, C.J., and LEWIS and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Amie E. DeGuzman of the Law Office of John J. Rahaim II,
Jacksonville, for Appellant.
William H. Rogner and Scott B. Miller of HR Law, P.A., Winter
Park, for Appellees.
9