Workers’ compensation — Medical benefits — Judge of compensation claims utilized incorrect legal standard in determining that claimant was entitled to diagnostic evaluation of cervical spine four years after accident in which claimant sustained compensable shoulder injury

Workers’
compensation — Medical benefits — Judge of compensation claims utilized
incorrect legal standard in determining that claimant was entitled to
diagnostic evaluation of cervical spine four years after accident in which
claimant sustained compensable shoulder injury — JCC improperly conflated
claimant’s burden to prove entitlement to an investigation of the causal
connection between voiced complaints and a previously accepted compensable
condition with claimant’s burden to prove causal relationship between a
condition and the workplace accident in the first instance — Claimant’s
subjective complaints, standing alone, were insufficient to prove claimant’s
injury and its occupational cause within a reasonable degree of medical
certainty based on objective relevant medical findings

MBM CORPORATION/SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.,
Appellants, v. ARCHER WILSON, Appellee. 1st District. Case No. 1D15-2398.
Opinion filed February 10, 2016. An appeal from an order of the Judge of
Compensation Claims. Neal P. Pitts, Judge. Date of Accident: October 16, 2010.
Counsel: Lamar D. Oxford and Michael A. Lowe of Dean, Ringers, Morgan &
Lawton, P.A., Orlando, for Appellants. Bill McCabe, Longwood, and Thomas A.
Vaughan, Orlando, for Appellee.

(PER CURIAM.) In this workers’ compensation appeal, the
Employer/Carrier (E/C) argues that the Judge of Compensation Claims (JCC) erred
in finding Claimant entitled to authorization for an evaluation of his cervical
spine in order to obtain a diagnosis. We agree the JCC utilized an incorrect
legal standard in determining that Claimant was entitled to the requested
diagnostic evaluation. Accordingly, we reverse the appealed order.

I.

Claimant was injured on October 16, 2010, when he fell
backwards out of the truck he was unloading, landing on asphalt and striking
his head and right shoulder. Only a right shoulder injury was diagnosed, and
treatment was authorized by the E/C for that injury.

Four years later, Claimant filed a petition for benefits
requesting a referral to a physician for evaluation of his head and neck pain.
The E/C denied the request on grounds that any head or neck condition had not
been accepted as compensable and that the compensable accident was not the
major contributing cause of any head or neck condition.

In support of his claim, Claimant relied on the testimony of
Dr. Macksoud, the physician authorized to provide treatment for his compensable
shoulder condition. Dr. Macksoud testified it would be reasonable, assuming
that Claimant’s neck had been symptomatic since the date of the accident, for
Claimant to have an evaluation to obtain a diagnosis for his neck condition.
Dr. Macksoud was not questioned as to whether there was any possible causal
relationship between Claimant’s compensable shoulder injury and the cervical
spine complaints.

The JCC accepted Dr. Macksoud’s testimony, as well as that
of Claimant that he had experienced some cervical spine symptoms since the date
of the accident. The JCC concluded it was reasonable necessary, and
appropriate, to refer Claimant to a physician for an evaluation of his cervical
spine.

II.

A claimant bears the burden of proof to establish
entitlement to benefits. See Fitzgerald v. Osceola Cty. Sch. Bd.,
974 So. 2d 1161, 1164 (Fla. 1st DCA 2008). Further, a claimant has the burden
to present expert medical evidence establishing a causal connection between the
requested benefits and the compensable accident. See Wausau Ins. Co.
v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000). Subsection 440.09(1),
Florida Statutes (2010), provides:

The
employer must pay compensation or furnish benefits required by this
chapter if the employee suffers an accidental compensable injury or death
arising out of work performed in the course and scope of employment. The
injury, its occupational cause, and any resulting manifestations or
disability must be established to a reasonable degree of medical certainty,
based on objective relevant medical findings, and the accidental
compensable injury must be the major contributing cause of any resulting
injuries. For purposes of this section, “major contributing cause” means 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. . . . Pain
or other subjective complaints alone, in the absence of objective relevant
medical findings, are not compensable. For purposes of this section,
“objective relevant medical findings” are those objective findings that
correlate to the subjective complaints of the injured employee and are
confirmed by physical examination findings or diagnostic testing. Establishment
of the causal relationship between a compensable accident and injuries for
conditions that are not readily observable must be by medical evidence only, as
demonstrated by physical examination findings or diagnostic testing. [MCC]
must be demonstrated by medical evidence only. (emphasis added).

To the extent resolution of this appeal requires statutory
interpretation, it is subject to de novo review. See Lombardi
v. S. Wine & Spirits, 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004).
Whether the JCC utilized the correct legal standard is also reviewed de novo.
See Banks v. Allegiant Sec., 122 So. 3d 983, 985 (Fla. 1st DCA
2013) (“Our review of an erroneous application of the law is de novo.”).

III.

Claimant failed to meet his burden of proof. In awarding
benefits, the JCC erred by conflating Claimant’s burden to prove entitlement to
an investigation of the causal connection between voiced complaints and a
previously accepted compensable condition, with Claimant’s burden to prove the
causal relationship between a condition and the workplace accident in the first
instance.

There was no allegation or argument that the compensable
shoulder injury may be the cause of the head and neck complaints. Rather,
Claimant sought a diagnostic evaluation to determine whether a potential neck
or head condition was related to the compensable workplace accident. The JCC’s
finding that Claimant had voiced complaints since the date of the accident
could be relevant to support a medical expert’s opinion that the head or neck
condition is causally related to the accident, but there was no such opinion
here — Dr. Macksoud testified only that it would be reasonable to have an
evaluation to diagnose a neck condition.* Claimant’s subjective complaints,
standing alone, however, will not meet the requirements of subsection 440.09(1)
that he prove his injury and its occupational cause within a reasonable degree
of medical certainty based on objective relevant medical findings.

IV.

Based on the foregoing, we REVERSE the order on appeal and
REMAND for entry of an order denying the claimed evaluation. (ROWE, RAY, and
SWANSON, JJ., CONCUR.)

__________________

*We note that Claimant did not, in the petition filed
herein, request the JCC ascertain the compensability of any cervical or head
condition, thus, this is a claim that is open for future litigation should
Claimant secure an expert medical opinion relating a neck or head injury to the
compensable accident.

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