39 Fla. L. Weekly D23a
judicata — Judge of compensation claims did not err in entering summary final
order denying claimant’s petition for benefits seeking authorization for an MRI
of his shoulder — Claim is barred by res judicata where JCC had entered prior
order which deemed claimant at maximum medical improvement and in need of no
further treatment for the shoulder condition for which he seeks an MRI
AMERITRUST INSURANCE CORPORATION, Appellees. 1st District. Case No. 1D13-1334.
Opinion filed December 20, 2013. An appeal from an order of the Judge of
Compensation Claims. Doris E. Jenkins, Judge. Date of Accident: September 15,
2005. Counsel: Bradley G. Smith of Smith, Feddeler & Smith, P.A., Lakeland,
Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Richard W. Ervin, III, of
Fox & Loquasto, P.A., Tallahassee, for Appellant. William H. Rogner and
Gregory D. White of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A.,
Winter Park, for Appellees.
order denying his Petition for Benefits (“PFB”) seeking authorization for an MRI
of his right shoulder. Because Claimant failed to demonstrate existence of a
material factual dispute, we affirm the order.
Employer’s salvage department, taking apart and removing equipment from trucks.
Claimant filed a PFB seeking medical treatment for asserted repetitive trauma.
The Judge of Compensation Claims (“JCC”) rejected Claimant’s request for
benefits, finding that
the most reasonable interpretation of the medical evidence is that,
as of September 19, 2005, Claimant suffered from pre-existing cervical and
shoulder problems, in addition to carpal tunnel syndrome. The work-related
activities that Claimant engaged in on September 19, 2005 caused temporary
aggravations of his cervical and shoulder conditions. This same activity caused
a flare-up of Claimant’s bilateral carpal tunnel. He reached MMI as of October
24, 2006 for the aggravations of his cervical and shoulder conditions. No
further treatment is necessary for these complaints.
tunnel syndrome. Claimant did not appeal the portion of the January 30, 2009,
order denying his PFB as to the cervical and shoulder conditions.
an appt. for an MRI of the right shoulder pursuant to the attached
recommendation from Dr. Aird the authorized physician.” Attached to the PFB was
a September 7, 2012, office note by Dr. Aird stating, in full:
Amable has been experiencing pain in both wrists and numbness of
both hands. He also complains of pain in both shoulders worse in the
On examination active range of motion of both shoulders was full.
Grip strength in the right hand was 57 pounds per square inch and in the left
hand 68 per square inch with the Jamar Dynamometer in the third
PLAN: The patient was scheduled for an MRI of the right shoulder and
will be seen again for follow-up care in one month.
[T]he JCC ruled in her Order of 1/30/09 that the injured employee
had reached MMI with regard to his shoulder complaints and that no further
treatment was needed. Dr. Aird is only authorized to treat injured employee’s
bilateral carpal tunnel complaints.
on the January 30, 2009, order, that res judicata prohibited re-litigation of
the issue of Claimant’s need for treatment for his right shoulder. Claimant
timely filed a response to the E/C’s motion, stating only that Dr. Aird, his
authorized treating physician, had written a prescription for the MRI, that
“Claimant is setting the deposition of Dr. Aird,” and that “This issue is not
appropriate for a Summary Final Order.” Claimant made no further factual
allegations, and submitted no supporting affidavits or other documents. The JCC
entered an order the next day granting the motion for summary final order.
Therein, the JCC noted, “The mere fact that Dr. Aird has recently recommended
that Claimant undergo an MRI of his right shoulder does not negate the validity
of the undersigned’s findings relative to Claimant[‘s] need for further
treatment due to his industrial accident.”
appropriate here. See Thomas v. Eckerd Drugs, 987 So. 2d 1262, 1263 (Fla.
1st DCA 2008). In workers’ compensation proceedings, Florida Administrative Code
Rule 60Q-6.120 permits any party to file a motion for summary final order when
there are no material factual disputes, and directs the opposing party to “file
a response to a motion for summary final order together with supporting
depositions, affidavits, and/or other documents within 30 days after service of
the motion[.]” Fla. Admin. Code R. 60Q-6.120(2), (3). A JCC “shall” enter a
summary final order if she or he “determines from the pleadings and depositions,
together with affidavits, if any, that no genuine issue as to any material fact
exists and that the moving party is entitled as a matter of law to the entry of
a final order.” Fla. Admin. Code R. 60Q-6.120(2). Such an order is appropriate
when it “would be dispositive of the issues raised by the [PFB]. Issues that
would be dispositive include . . . whether the claim is barred by res
judicata[.]” Fla. Admin. Code R. 60Q-6.120(1).
2009, order deemed Claimant at MMI and in need of no further treatment for the
shoulder conditions for which he now seeks an MRI. Therefore, the E/C argued,
res judicata bars Claimant’s current claim. Claimant’s response to the motion
asserted only that his authorized treating physician had written a prescription
for the MRI, and that the issue “is not appropriate for” disposition by summary
order. Aside from the office note filed with the PFB, Claimant submitted no
affidavits, depositions, or other evidence to substantiate a material issue of
fact that would preclude application of res judicata to his claim. Instead, he
merely suggested the existence of such facts, providing no supporting evidence
as required by rule 60Q-6.120(3), and represented that Dr. Aird’s deposition
would be set, but giving no date or timeframe, and seeking no extension of time.
See Fla. Admin. Code R. 60Q-6.120(3) (providing that the JCC shall grant
party opposing motion for summary final order an extension for good cause).
Claimant failed to demonstrate a material factual issue precluding application
of res judicata based on the January 2009 order. The JCC determined in 2009 that
Claimant did not suffer a repetitive trauma injury to his shoulders, but that
Claimant temporarily aggravated pre-existing shoulder conditions, had reached
MMI, and needed no further treatment. Even assuming, as Claimant argues, the MRI
was for diagnostic purposes, the only document he submitted with the PFB — Dr.
Aird’s office note, recounted in full above — is not sufficient to demonstrate
the existence of some new fact(s) inconsistent with the JCC’s 2009 findings.
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