Eduardo Cena, Employee /Claimant,

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS MIAMI DISTRICT OFFICE Eduardo Cena, Employee /Claimant, vs. Niagara Pools, Inc., and Niagara Pools Inc. /Amerisure Insurance, Employer/ Carrier /Servicing Agent. OJCC Case No ERA Accident date: 9/12/2014 Judge: Edward Almeyda FINAL COMPENSATION ORDER This matter came before me, the undersigned Judge of Compensation Claims, for a final hearing held on 9/21/2016. The Claimant was represented by Toni Villaverde, Esquire and the Employer /Carrier by I{ip Lassner, Esquire. The adjudicated petitions are dated 2/1 5/ /11/20I6 and 3/17/2016. Petitions dated 9/8/2016 has yet to be mediated therefore will be adjudicated when ripe. CLAIMS AND DEFENSES: Claims: 1. TTD or TPD from 10/09/2015 continuing. 2. Provision of pain management. 3. PICA Defenses: 1. Indemnity denied as Claimant at MMI with 0% pursuant to Dr. Damski. Claimant voluntarily limiting his income. No medical evidence that Claimant was out of work or on restrictions. Claimant terminated for cause. No causal relationship between accident/injury and alleged wage loss. E /S /A reserves right to offset unemployment benefits and SSDI or wages earned. 2. Pain management denied as there is no causal connection between need for medical treatment and work accident. 3. Deny PICA DOCUMENTARY AND TESTIMONIAL EVIDENCE: 1 f '

2 Claimant: I. Pretrial stipulation (47) 2. Concentra records (66) 3. Dr. Damki's records (67) 4. Dr. Ray's deposition (95) 5. Attachment to Dr. Ray's deposition excluding those from Dr. Myers (96) 6. Dr. Pell's records (98) 7. Employer's deposition (110) 8. Attachments to employer's deposition (111) Joint exhibits: JT1. Adjuster's deposition (99) Claimant's proffer: Records from adjuster's deposition ( 144) Employer /Carrier: a. Claimant's deposition (120) b. Driver's application (120) c. Ms. Rojas deposition and exhibits (163) Testimony: Claimant Henry Kirshman Stipulations: AWW is $ FINDINGS OF FACTS AND CONCLUSIONS OF LAW This is a compensable injury where the dispute for adjudication herein involves a period of temporary indemnity as well as treatment by a pain management specialist. At the time of the hearing, the undersigned was advised that Dr. Pell had been authorized to treat the Claimant's shoulder injury. AWW has been stipulated at $ CLAIMANT: He is a 48 year old gentleman who was involved in a motor vehicle accident on 9/12/2014 driving the company truck. He was originally sent to Concentra and released to work with restrictions on weight lifting, which the Employer accommodated. He last 2I I

3 worked with the Employer on 10/9/2014 when he was terminated. The Claimant at the time of hire had to furnish information concerning his insurability to drive. He also had a Georgia driver's license which was suspended prior to this termination because of a citation for DUI, occurring in Georgia. When the insurance company discovered this fact, they advised the Employer that he could no longer drive, and was therefore terminated on 10/9/2015. Since then he has not had any work derived income. For the liability aspect o f the accident, the personal injury attorney sent the Claimant to Dr. Myers who treated his neck. Worker's compensation authorized Concentra who referred him to Dr. Voglino, whom he saw only once. Dr. Voglino never examined his neck. The adjuster would not authorize another visit. He was also treated by Dr. Damski for headaches. The Claimant at the time of the hearing had started treating with Dr. Pell in August On cross examination the Claimant testified that he was not aware that he had an appointment with Dr. Voglino on 11/19/2014, or that Dr. Voglino had not given him any restrictions. When he returned to work for the Employer, he worked with restrictions for a year. He receives unemployment compensation at the rate of$ per week from 10/15/15 to 1/16/2016. HENRY KIRSHMAN: He is the president of the Employer, Niagara Pools. He described the services performed by his company in servicing pools, which requires the driving of a company truck to the homes where the pools are located. Following the accident the Claimant was referred to Concentra, and was out of work for five days. IIe worked until 10/9/2015 earning his regular wages. At the time when the Claimant 3

4 was terminated, he was told that the Claimant was going on a home inspection business. The reason the Claimant was terminated was that the liability insurer would no longer insure the Claimant as a driver on the company truck. CONCENTRA RECORDS: Those reveal a first visit on 9/17/2014 with complaints leading to a diagnosis of cervical sprain and shoulder impingement and strain. On 10/9/2014 the Claimant is released to work with restrictions. The last visit shown is 11/3/2014 and the DWC- 25 does not indicate that MMI has been reached. There were no limitations in work activity imposed on that visit. There is a cervical MRI in the records showing no abnormality. There is an order for a shoulder MRI, and the report shows a tear, capsulitis and an acromial process. DR. VOGLINO: The Claimant objected to the reports of Dr. Voglino as he was not specifically listed in the pretrial. The deposition of Angela Rojas, records custodian for Concentra is in evidence, and that reveals that he is associated with that clinic and that he saw the Claimant through the clinic. His report is part of the Concentra records. In view of that fact the report of Dr. Voglino, found in the records of Concentra, is admitted. Dr. Voglino saw the Claimant on 11/11/ He reviewed an MRI of the shoulder which showed a partial tear in the tendinous region. The cervical MR1 showed a C5-6 disk herniation. He was given a shoulder injection and was referred to a neurologist for headaches and neck pain. He was not given any orthopedic restrictions, and had a return appointment on 12/9/2014. DR. PAUL DAMSKI: He is a neurologist. The records indicate an initial visit on 3/26/2015. There is no report for this visit but is mentioned in the report dated 2/4/2016. In this later report the Claimant is diagnosed with occipital neuralgia on the left side. He is given a 4j

5 refill for Rizotriptan. The report stated Claimant has no work restrictions. The report dated 3/3/2016 indicates the Claimant to be at MMI without impairment or restriction. He is still getting nerve blocks for the occipital headaches, and has yet to receive the Rizotriptan. The last report in evidence is dated 5/9/2016. The diagnosis is of cervical neuralgia triggering migraine. The Claimant has no work restrictions and is still at MMI with no impairment. The Claimant has yet to be approved for the Rizotriptan. DR. RICHARD PELL: He is an orthopedic surgeon who saw the Claimant on 8/6 /2016. He diagnosed cervical spine injury with radiculopathy, and a left shoulder injury. These conditions are related to the accident. The Claimant is not at MMI and has restrictions of lifting and pulling, the extent of which is illegible. TINA I- IOGAN: She is the adjuster who was deposed prior to the appointment with Dr. Pell. The accepted body parts are the left hand, neck and left shoulder. The Claimant initially was sent to Concentra, and treated there until 11/11/2014, on which date he saw Dr. Voglino, who only sees patients inside Concentra. The Claimant was not paid compensation after 10/10/2015 because he was terminated for cause due to his driving record. Ms. Hogan did not know that authorization of Rizotriptan was at issue, and did not know why it hadn't been refilled. There was no medical treatment authorized between 11/11/2014 and March DR. ALBERT RAY: He is the Claimant's IME which was performed on 7/ His specialty is pain medicine and psychiatry. Following his examination and review of records he concluded the accident caused cervical herniation, myofascial syndrome, headaches, left rotator 5

6 syndrome, pain disorder, adjustment disorder. sleep disorder and deconditioned status. He recommended a multidisciplinary pain program. The Claimant is not at MMI and cannot work. ANALYSIS INDEMNITY CLAIMS: Among the defenses raised by the E/C in this case, is that of termination for cause. The statutory language pertinent to this defense is not for "cause" but rather misconduct, which is a similar but distinct theory. The basis for this defense is the fact that the Claimant was terminated because his Georgia driver's license was suspended due to a DUI in Georgia, and is no longer insurable. The Claimant also has a Florida driver's license. There is nothing in the record that would indicate that the Claimant committed any act within his tenure of employment that would violate a company policy. The exhibit titled "driver application" appears to have been filled out before the DUI incident. His actions did not rise to the level of misconduct sufficient to bar him entitlement to temporary partial disability benefits as defined in F.S (18). I do not these actions on the part of the claimant to be a wanton disregard of the employer's interests or a deliberate disregard of the standards of behavior the employer has the right to expect; and, I also find that these actions do not constitute a degree of carelessness which demonstrates a substantial disregard of the claimant's duties and obligations to luis employer_ I, thus conclude that while the claimant was terminated from his post injury employment for a good reason; his actions did not rise to the level of misconduct sufficient to act as a bar to hia receipt of temporary partial disability benefits under F.S.440.I5(4)(e) and (18). 6 J,,-.

7 The E/C has provided no evidence that following his termination, the Claimant voluntarily limited his income or refused work. Rather, they have argued that because the Claimant was terminated for cause, any loss of earnings were unrelated to the industrial injury. To this extent, the facts are analyzed to determine whether the Claimant has proven a relationship between the injury/accident and the wage loss_ The following is the chronology in this case: a. Claimant suffers an accident- 9/12/2014 b. Claimant returns to work with restriction - October 2014 c. Claimant is discharged by Concentra with no restrictions- 11/3/2014 d. Claimant is released to work by Dr. VogIino without restrictions- 11/11/2014 e. Claimant terminated by Employer 10/9/2015 f. Claimant is seen by Dr. Damski- February to May 2016 no restrictions g. Claimant has IME taken out of work by Dr. Ray h_ Claimant starts treating Dr. Pell restricted work - 8/6/2016 The testimony of the Claimant as well as Mr. Kirshman indicates that during the period of post accident employment the Claimant was earning his pre -accident wages. The first work restriction after the termination comes from the IME, Dr. Ray, who places him in a no work status. The work restriction is later confirmed by Dr. Pell, an authorized orthopedic physician, who places him in limited work status. There is no medical evidence to support temporary disability post 10/9/2015 until 7/11/2016, and to this extent the E /C's position is correct and the claim for TPD /TTD until 7/10/2016 is denied. Following 7/11/2016 the additional issue raised by the defense involves MMI. Concentra, a PCP, placed the Claimant at MMI on 1 1/3/2014. Dr. Voglino, the originally authorized PCP did not place the Claimant at MMI. Dr. Damski, a neurologist, placed the Claimant at MMI due to the headaches. Dr. Ray, pain management found no MMI on

8 7/11/2016. Dr. Pell also did not find MMI on 8/6/2016_ Given this background, it is clear that while the Claimant may be at MMI due to the neurological perspective of the headaches, there is no MMI due to the orthopedic injuries to the neck (herniated disks) and shoulder (impingement). Thus, there is no overall MMI to terminate the entitlement to temporary indemnity. While the Claimant may have been terminated in October 2015, not for misconduct, the evidence is clear that after 7/11/2016 he was severely limited in the activities he could perform, and there is no evidence from the E/C that they had work available for him within those Iimitations. Thus, the defense that the Claimant has not established a connection between the injury and the wage loss is denied_ To the extent that they are in conflict, the opinion of Dr. Voglino over that of Dr. Pell is rejected. Dr. Pell most recently examined the Claimant. This is significant because Dr. Voglino had just seen the Claimant post accident, and Dr. Pell now saw the Claimant two years later, after a time when one would have expected the healing to have been finished. Dr. Pell's opinion is accepted as more logical and reasonable and timely in this matter. The final consideration is the nature and period of temporary indemnity awarded herein. The medical evidence accepted here only supports the proposition that the Claimant was unable to work from 7/11/2016 to 8/5/2016, accepting the opinion of Dr. Ray. Again, this opinion is accepted over the contrary opinions to that time, as the Claimant had not had any treatment to the neck and shoulder for over two years. Commencing 8/6/2016 the CIaimant finally gets on track with medical treatment to the neck and shoulder by Dr. Pell who places him on limited duties. The TPD opinion of Dr. Pell is 8 j 1' <<

9 accepted over the TTD opinion of Dr. Ray because Dr. Pell, an orthopedic physician is better able to determine whether the anatomical injuries incapacitate an individual. The contrary opinion of Dr. Damski concerning the no work restrictions due to headaches is accepted over that of Dr. Ray only to the extent of the headaches, as a neurologist is better able to determine any incapacity due to headaches. Thus, as the Claimant is orthopedically limited in his ability to work, he is entitled to TPD commencing 8/5/2016, continuing as long as that category of disability applies. PAIN MANAGEMENT TREATMENT: at the time of the filing of the PFB for pain management, the Claimant was still without current orthopedic treatment. The CIaimant is now under the care of Dr. Pell who is treating the underlying injuries to the shoulder and neck, which injuries are presumably the cause of the pain_ It would be premature to award pain management to this Claimant, not at MMI, who is now undergoing active orthopedic treatment. Any such pain management, as suggested by Dr. Ray, could conflict with the treatment protocol of Dr. Pell. Once the Claimant has reached a point where his orthopedic injuries are corrected, then pain management may be indicated if otherwise recommended by a treating physician. For those reasons, pain management is currently denied as premature WHEREFORE, IT IS ORDERED AND ADJUDGED THAT: 9 1. The claim for TTD or TPD from 10/9/1015 to 7/10/2016 is DENIED AND DISMISSED with prejudice. 2. The claim for TTD from 7/11/2016 to 8/5/2016 is GRANTED together with penalties and interest_ 3. The claim for TPD from 8/6/2016 to date and continuing as long as that category of disability applies is GRANTED together with penalties and interest.

10 4. The claim for pain management is DENIED AND DISMISSED. 5. Issues of attorney's fees and costs are reserved to a later hearing. DONE AND SERVED this 19th day of October, 2016, in Miami, Dade County, Florida. COPIES FURNISHED: Eduardo Cena_ 9431 SW 138 Place, Miami, FL Niagara Pools, Inc SW 185th Street Cutler Bay, FL Amerisure Insurance PO Box Detroit, MI corn Niagara Pools Inc SW 185th Street Cutler Bay, FL s Toni Lynne Villaverde Toni L. Villaverde, PLLC 1430 South Dixie Hwy, Suite 319 Coral Gables, FL lo I gh)0.1,( Edward Almeyda Judge of Compensation Claims Division of Administrative Hearings Office of the Judges of Compensation Claims Miami District Office 401 Northwest 2nd Avenue, Suite N -918 Miami, Florida (305)

11 Kip O. Lassner, Esq. Cole, Scott & Kissane 600 North Pine Island Road, Suite 500 Plantation, FL