42
Fla. L. Weekly D1354aTop of Form

Workers’
compensation — Temporary partial disability — Misrepresentation — Competent,
substantial evidence supported judge of compensation claims’ conclusion that
claimant did not make intentional misrepresentations for purpose of obtaining
workers’ compensation benefits — Determination that workplace injury was major
contributing cause of claimant’s disability and need for medical care was not
based on competent, substantial evidence — JCC erred in awarding TPD benefits

LEVY COUNTY TRANSIT/ GALLAGHER
BASSETT SERVICES, Appellants, v. ANTOINETTE KOKENZIE, Appellee. 1st District.
Case No. 1D16-4817. June 14, 2017. An appeal from an order of Judge of
Compensation Claims. Marjorie Renee Hill, Judge. Date of Accident: March 13,
2015. Counsel: Christopher J. DuBois and Mary E. Cruickshank of DuBois &
Cruickshank, P.A., Tallahassee, for Appellants. Mark N. Tipton and Daniel L.
Hightower of Daniel L. Hightower, P.A., Ocala, for Appellee.

(B.L. THOMAS, J.) In this workers’
compensation case, the Employer/Carrier challenge an order awarding Claimant
temporary partial disability benefits and rejecting the affirmative defense of
misrepresentation under paragraphs 440.09(4)(a) and 440.105(4)(b), Florida
Statutes (2014). Because the record contains competent, substantial evidence
supporting the Judge of Compensation Claims’ conclusion that Claimant did not
make intentional misrepresentations for the purpose of obtaining workers’
compensation benefits, we affirm that ruling. But we reverse and remand the
temporary partial disability award, because the determination that the
workplace injury is the major contributing cause of Claimant’s disability and
need for medical care is not based on competent, substantial evidence.

Claimant reported that she injured
her neck while transporting a wheelchair-bound passenger on March 13, 2015. The
Employer/Carrier accepted compensability of the workplace injury and authorized
medical care with Dr. Trimble, an orthopedic surgeon. Dr. Trimble ultimately opined
that the major contributing cause of Claimant’s neck complaints is preexisting
degeneration of the cervical spine, not the workplace injury. Dr. Lowell,
another orthopedic surgeon, later provided Claimant’s medical care and
recommended surgery of the cervical spine.

Claimant filed a claim for temporary
partial disability benefits in light of Dr. Lowell’s surgical recommendation.
The Employer/Carrier defended the claim, in part, on the ground that the
workplace injury is not the major contributing cause of Claimant’s neck
condition, based on Dr. Trimble’s expert opinion and the expert opinion of Dr.
Rumana, the Employer/Carrier’s independent medical examiner.

Under subsection 440.09(1), Florida
Statutes (2014), an employer/carrier is responsible for providing benefits only
where the accidental compensable injury is the major contributing cause of any
resulting injuries. Thus, Claimant bore the burden of persuasion to prove that
the compensable workplace injury is the major contributing cause for the need
for the requested benefits. See Babahmetovic v. Scan Design Fla., Inc.,
176 So. 3d 1006, 1008 (Fla. 1st DCA 2015); Checkers Restaurant v. Wiethoff,
925 So. 2d 348, 350 (Fla. 1st DCA 2006). In accordance with the statute, a
major contributing cause is the cause that is more than 50% responsible for the
injury, when compared to all other causes combined for which treatment or
benefits are sought. § 440.09(1), Fla. Stat. (2014). Furthermore, major
contributing cause must be demonstrated by medical evidence only, and “[p]ain
or other subjective complaints alone, in the absence of objective relevant
medical findings, are not compensable.” Id.

According to the Judge of
Compensation Claims, Dr. Lowell opined that, “assuming Claimant’s neck has been
asymptomatic since the early 2000s,” the workplace injury is the major
contributing cause of the need for surgery and related disability. But Dr.
Lowell never actually testified that the workplace injury is the major
contributing cause of the need for cervical surgery.

Dr. Lowell testified that Claimant
specifically told him that she never had any previous symptoms or treatment of
the neck. Even with this history, Dr. Lowell initially indicated that the major
contributing cause issue here “falls in a gray zone.” Later, after reviewing
Claimant’s prior medical records, the doctor agreed that the workplace injury
is not the major contributing cause of Claimant’s current condition. When asked
by Claimant’s attorney if the workplace injury would be the major contributing
cause of the need for surgery, assuming Claimant had some prior neck complaints
but none after the early 2000s, Dr. Lowell did not directly answer the
question. Instead, he stated that he “would have to conclude the accident was
responsible for the new onset of symptoms,” if Claimant gave him
“accurate and complete” information”; however, he said, “those conclusions
[are] more difficult to render” when the information is not accurate and
complete. At no point did Dr. Lowell indicate that the information necessary to
make a causal connection would not include all of Claimant’s pertinent medical
history. This opinion, as qualified, does not match the facts regarding
Claimant’s past medical history, including her previously reported neck pain.
Thus, Claimant failed to carry her burden of persuasion, as she did not show
that the need for the surgery was linked to the workplace accident.

We therefore reverse the award of
temporary partial disability benefits associated with the recommended medical
treatment and remand for entry of an order consistent with this opinion.

AFFIRMED in part, REVERSED in part,
and REMANDED. (LEWIS and ROWE, JJ., CONCUR.)

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