January 22, 2020

Contact:Eric W. Boyer, Esq.
Managing Partner
305.670.1101 Ext. 1023


Worker’s Compensation Claim Based on a Request for Multi-Level Fusion Surgery

Frank C. Bozeman III

Frank C. Bozeman III

PANAMA CITY, Fla. ― Quintairos, Prieto, Wood, & Boyer, P.A., Frank C. Bozeman, III, a partner in the Pensacola office, representing the Employer, Florida Department of Corrections/Division of Risk Management, obtained a Final Compensation Order denying Claimant’s Petition for Multi-Level Surgical Fusion Surgery. The Claimant was a 59 year old Correctional Officer who was hired in 2013. She was hurt when she fell while undergoing training. After the injury, the Claimant complained of neck, right arm and right shoulder pain, daily headaches and hand numbness. The Claimant testified that she needed the surgery because she “can’t stand the pain every day” and “she has not worked in one year.”
The Claimant’s treating Orthopedic Surgeon, Dr. Michael Lee, treated the Claimant after the 2013 date of injury until 2014 with conservative treatment. The Claimant returned to Dr. Lee on November 18, 2016, over 2 ½ years after the 2014 office visit, at which time she told the doctor that her pain was “8/10”. At this point, Dr. Lee recommended surgery.
After obtaining extensive medical records, our office determined that the Claimant had pre- existing cervical degenerative disc disease/spondylosis. Dr. Lee discounted the Claimant’s pre- existing condition, as the Claimant told him that she had never been symptomatic from this condition. As a result of this opinion, the Employer sought an IME doctor.
The Employer sent the Claimant for an IME with Dr. Michael Rohan, Jr. Dr. Rohan opined that the major contributing cause for the need for the Claimant’s surgery was due to Claimant’s pre- existing degenerative disc disease. Dr. Rohan further pointed out that there was a 2 ½ year gap during the treatment and the medical records supported that, after the Claimant’s initial on-the- job injury, Dr. Lee’s PA placed the Claimant at MMI with a 0% rating and no restrictions.
Because there was conflict between the Treating Doctor and the Employer’s IME doctor, Judge Jonathan Walker ordered an EMA. The Claimant saw Dr. Eric Scott, a Board Certified Neurosurgeon, in April 2019. On April 4, 2019, Dr. Scott completed an EMA exam of the Claimant and issued a subsequent report. At Dr. Scott’s November 2019 deposition, he observed that according to the Claimant’s November 8, 2013 CT Scan, there were no acute findings. He further opined that the Claimant’s cervical degenerative disc disease was pre-existing and had been present for a long time. For these reasons, he agreed with Dr. Rohan that the major contributing cause of the need for cervical surgery was the pre-existing spondylosis. He also agreed with the previous MMI date of January 21, 2014.
The JCC found that the EMA is presumed to be correct unless there is clear and convincing evidence to the contrary. The Judge accepted the EMA opinion and found that the Claimant did not meet her burden of proof that the work accident was the major contributing cause of the need for surgery. He also accepted the opinions of Dr. Rohan regarding causation over those of Dr. Lee for 3 reasons: First, he found Dr. Rohan’s opinions in accord with logic and reason. Second, he found that Dr. Rohan is a board certified spine surgeon with experience with these types of procedures. Third, Dr. Rohan’s determination was supported by other competent evidence.
Finally, he noted that the Coastal Urgent Care intake records on November 16, 2013 show that the Claimant has a history of arthritis. In this regard, the JCC found that, “Dr. Rohan’s opinion was that the Claimant’s pre-existing cervical spondylosis is causing the need for surgery, is reasonable in light of the Claimant’s disclosed history of arthritic condition – even if the exact location of her arthritis is not described in the records.”
The Claimant filed a Memorandum in Opposition to the appointment of EMA based on Constitutional Grounds. The Employer responded by citing the case of DeJesus Abreu v. Riverland Elementary School,  2019  WL  2505304 (June 18,  2019), which  found: “The presumption  of correctness attributed to an EMA pursuant to section 440.13(9)(c), is not an unconstitutional violation of separation of powers, due process, or equal protection guarantees.” The JCC acknowledged the Claimant’s constitutional arguments, however, noted that he was constrained from addressing the issue.
In conclusion, the Judge found that he accepted the EMA’s opinion that the 2013 work accident was not the major contributing cause of the requested cervical surgery. Alternatively, in the event that Dr. Scott’s opinions were not supported on appeal, he accepted the opinion of Dr. Rohan over that of Dr. Lee regarding causation. Therefore, the judge found that the Claimant’s petition for Multi-Level Cervical Fusion Surgery should be dismissed with prejudice. As of this date, no appeal has been filed by the Claimant.

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About QPWB
Frank C. Bozeman, III is managing partner in the firm’s Pensacola office.  He focuses his litigation practice on the defense of employers and carriers in workers’ compensation matters and defense of employers against a wide range of employment-related claims including employment discrimination, retaliation, wrongful termination, FLSA audits, and wage and hour matters, among various other areas. He also represents physicians and hospitals in medical malpractice claims. He received his law degree from Cumberland School of Law Samford University in 1989.  Mr. Bozeman is admitted to practice law in Florida and Alabama.
Quintairos, Prieto, Wood & Boyer, P.A., is the largest minority and women owned law firm in the nation with more than 400 lawyers serving clients from 24 offices in the United States and abroad across a spectrum of industries in over 40 areas of practice. Our lawyers provide representation in litigation, business, real estate and governmental law.

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