STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGE OF COMPENSATION CLAIMS FORT LAUDERDALE DISTRICT D/A: 6/29/2012 FINAL ORDER

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGE OF COMPENSATION CLAIMS FORT LAUDERDALE DISTRICT EMPLOYEE: Leonardo Ernesto Gomez 5290 NW 36th Terrace Ft. Lauderdale, FL EMPLOYER: Frank Crum, Inc. 100 Missouri Avenue Clearwater, FL CARRIER: BroaÚgpire P.O. Box Lexington, KY ATTORNEY FOR EMPLOYEE: Kevin Gallagher, Esquire The Gallagher Law Group, P.A. 707 SE 3rd Ave, Suite 201 Ft. Lauderdale, FL ATTORNEY FOR EMPLOYER/CARRIER: Paul L. Luger, Esquire Hurley, Rogner, Miller, Cox, & Waranch, P.A. 603 North Indian River Drive, Suite 200 Fort Pierce, FL OJCC CASE NO.: 13-02E326]]L D/A: 6/29/2012 Judge: John 3. Lazzara FINAL ORDER After due notice to the parties, a Final Hearing on this matter was held on November 19, 2015, via video-teleconference in Tallahassee, Leon County, Florida, with all parties appearing live in Fort Lauderdale, Florida. The Claimant, Leonardo Ernesto Gomez, appeared along with his attorneys, Rayo Moreno, Esquire and Danni Germano, Esquire, of The Gallagher Law Group, P.A. The Employer/Carrier was represented by their counsel of record, Paul Luger, Esquire and Julie Bix er, Esquire. The undersigned Judge of Compensation Claims has jurisdiction over the parties and the subject matter. The litigation history of this matter reflects that the subject Petitions for Benefits presented for adjudication were filed on May, 5, 2015 and July 30, An Abbreviated Final Order was entered on December 18, 3015, and subsequently vacated by Order entered on January 4, 2016 following the timely filing of the claimant's Motion to Vacate Abbreviated Final Order and forspecific Findings of Fact and Conclusions of Law. The Claimant sought the following benefits: 1. Temporary total/temporary partial disability (TT/TPD) benefits from June 28, Page 1 of 20 OJCC CASE NO.: JJL

2 2015 and continuing to the present; 2. Permanent total disability (PTD) benefits from June 4, 2015 and continuing to the present; 3. Reclassification of TTD /TPD benefits paid to PTD benefits from June 4, 2015 to the date of the final hearing; 4. Penalties, interest, cost, and attorney's fees at the expense of the Employer /Carrier. The Employer /Carrier raised the following defenses to the aforementioned issues or claims: 1. All TT /TPD benefits due and owing have been paid; 2. No TT /TPD benefits due as the 104 weeks of such benefits have been paid and thus eligibility has expired; 3. The Claimant has not reached overall maximum medical improvement (MMI); 4. The Claimant is not permanently and totally disabled; 5. The Claimant is reasonably anticipated to return to full duty in accordance with the opinion of Dr. Tosca Kinchelow, M.D.; 6. The Claimant is capable of returning to work within his physician- imposed restrictions and limitations; 7. The Employer /Carrier denies entitlement to penalties, interest, costs, and attorney's fees at their expense. The parties have entered into the following stipulations: 1. The Judge of Compensation Claims has jurisdiction over the parties and the subject matter of this claim. 2. Venue properly lies in Broward County, Florida. 3. The Notice of Hearing and the Notice of Injury were properly furnished and received as required by workers' compensation law. 4. On June 29, 2012, the Claimant was employed by the captioned Employer and on said date suffered a compensable injury by accident arising out of and Page 2 of 20

3 within the course and scope of said employment with said Employer. 5. In addition to the parties' Pretrial Stipulation, the parties' stipulations on the record at trial consisted of the following: (a) The Claimant's average weekly wage (AWW) on the date of accident was $ per week per contract of hire, yielding compensation rate (CR) of $ per week; (b) That the claim for $2, advance was previously resolved and the Employer /Carrier stipulates to entitlement to an attorney's fee at their expense with the amount to be determined at a later time; and (c) The Carrier made a lump sum payment to the claimant with penalties and interest prior to Final Hearing to account for previously incorrectly paying the claimant indemnity benefits at the temporary partial rate rather than the temporary total rate, and any entitlement to an attorney's fee as well as the amount of said fee, if any, is hereby reserved for a later hearing. 6. The Petition for Benefits dated October 14, 2015 had not been mediated at the time of the final hearing and, therefore, was not ripe to be heard. The parties agree that said Petition for Benefits will be addressed at a mediation following the final hearing, if necessary. At the trial the following exhibits were admitted into evidence: Claimant's Exhibits: 1. Petitions for Benefits (PFBs) filed on 5/5/15 and 7/30/15 with attachments. Counsel for the Employer /Carrier objected to the attachments filed with the 5/5/15 PFB on the basis of the attachment was not a medical record and as to relevance in light of the dates indemnity was being sought. The objections were overruled and received in evidence solely for the basis that the claimant complied with sections (40) and (2), Fla. Stat. 2. Response from Carrier filed 8/6/15 noted as Docket #91. Page 3 of 20

4 3. Deposition of Dr. Edward Suarez, M.D., with attachments. Counsel for the Employer /Carrier objected to attachment #2 to this deposition which was a medical records composite provided to the doctor for review by Claimant's counsel on the basis that some of the records provided were from unauthorized physicians for treatment unrelated to the compensable injuries, that some documents attached were not in fact medical records, and as to relevance. The objections were overruled. 4. Medical records of Dr. Tosca Kinchelow, M.D. 5. Medical Records of Palm Beach Radiology Professionals. Counsel for the Employer /Carrier objected as there were no records from this provider attached to Claimant's Motion to Admit and although the facility may have performed diagnostics on the claimant at the request of authorized physicians, the facility itself was not an authorized treating provider. The objection was overruled. 6. Medical records of Dr. Fernando Stern, M.D. 7. Medical records of Dr. Steven Steinlauf, M.D. 8. Medical records of Dr. Charles Southerland, DPM. 9. Medical records of Dr. Niurka Santana, M.D. 10. Medical records of US Healthworks. 11. Medical records of Physiotherapy Associates. 12. Medical records of Barry University Foot & Ankle Institute. 13. Medical records of Memorial Healthcare System. Counsel for the Employer /Carrier objected on the grounds that Memorial Healthcare Systems was not an authorized provider, IME or EMA, and that the records address treatment the claimant received unrelated to the compensable accident and injuries. Counsel for the Claimant subsequently withdrew these records as evidence and, therefore, they were marked for identification only. 14. Deposition of Dr. Tosca Kinchelow, M.D., with attachments. Counsel for the Page 4 of 20

5 Employer /Carrier objected to the attachments on the basis that they were improperly marked as attached to the deposition transcript. Counsel for the Employer /Carrier filed a Notice of Filing on 10/20/15 (Docket #156) which included the proper and correctly labeled attachments. The tribunal added the Notice of Filing with attachments from the Employer /Carrier (Docket #156) to claimant's deposition transcript of Dr. Kinchelow as Exhibit # Claimant's Job Searches. Counsel for the Employer /Carrier objected on the basis of unauthenticated hearsay pending evidence and testimony at Hearing. As the job searches were properly authenticated by the claimant during trial, the objection was overruled. 16. Vocational Rehabilitation Report prepared by John Roberts. Counsel for the Employer /Carrier objected on the basis of unauthenticated hearsay pending evidence and testimony at Hearing. The report was properly authenticated during trial by Mr. Roberts, the objection was overruled. 17. Deposition of Adjuster Misty Risch. 18. Indemnity Payout Ledger filed on 10/19/15 (Docket #155). 19. Claimant's Motion to Admit Medical Records filed on 10/7/15. Counsel for the Employer /Carrier objected to the records of Memorial Healthcare as attached to said Motion on the basis that Memorial Healthcare Systems was not an authorized provider, IME or EMA, and that the records address treatment the claimant received as unrelated to the compensable accident and injuries. Counsel for the Claimant withdrew said records from said provider as evidence and, therefore, they were marked for identification only. 20. Orders on Employer /Carrier's Motions to Admit entered on 9/30/15 (Docket #117) and 10/15/15 (Docket #151). 21. Order on Claimant's Motion to Admit entered on 10/7/15 (Docket #130). Page 5 of 20 Counsel for the Employer /Carrier objected for the same reasons they objected to Claimant's Motion to Admit filed on 10/7/15 relative to records from

6 Memorial Healthcare Systems. 22. Claimant's Trial Summary, marked for identification purposes only. Employer /Carrier's Exhibits: 1. Response from Carrier filed 8/6/15 noted as Docket # Employer /Carrier's Motion to Admit with all attachments filed on 10/14/15 (Docket #s ) with Order Granting Motion to Admit entered on 10/15/15 (Docket #151). 3. Deposition transcript of Dr. Kinchelow. 4. Deposition transcript of Dr. Suarez. 5. Updated payout ledger as filed on 10/19/15 (Docket #155). 6. Employer /Carrier Trial memorandum, marked for identification purposes only. Joint Exhibits: 1. Pretrial stipulation of parties and Order along with all other amendments and supplemental stipulations filed by both parties. The following individuals testified before me: 1. Leonardo Ernesto Gomez, the Claimant /Employee, appeared live. 2. John Roberts, Vocational Expert for Claimant, appeared live. 3. Misty Risch, Claims Adjuster for Employer /Carrier, appeared by phone. After due consideration of this matter and after having the opportunity to review and consider the aforesaid exhibits which were admitted into evidence, and having observed and considered the candor and demeanor of the witnesses who appeared and testified before me, and having endeavored to resolve all of the conflicts of facts in the evidence presented herein, I hereby make the following findings a fact and conclusions of law: 1. The undersigned Judge of Compensation Claims has jurisdiction over the parties and the subject matter of this claim; 2. The stipulations entered into by and between the parties herein are hereby approved and adopted as findings of fact and are incorporated herein by reference; 3. In my determination herein I have attempted to distill all of the testimony and salient facts together with the findings and conclusions necessary to the resolution of Page 6 of 20

7 this matter. I have not necessarily attempted to summarize the substance of the Claimant's testimony or the testimony of any live or deposition witness, nor have I attempted to state non -essential facts. Because I have not done so, it should not be construed that I have failed to consider all of the evidence. 4. Any and all issues raised in the Petitions for Benefits described above which were the subject matter of the final hearing, but which issues were not tried at the hearing are presumed resolved or, in the alternative, deemed abandoned by the Employee /Claimant and therefore denied. See Betancourt v. Sears Roebuck & Co., 693 So.2d 253 (Fla. 1st DCA 1997). 5. The Claimant, Leonardo Ernesto Gomez, who is 42 year old (DOB: 11/10/73) was born in Cuba and migrated to this country in Spanish is his primary language and he underwent vocational training in Cuba as a baker although he has worked primarily in the construction field and his labored as a pizza cook. While working for the captioned employer on June 29, 2012, Mr. Gomez was involved in a compensable work accident when while coming down off of scaffolding he lowered his left foot off the bottom step to the ground when his left foot turned to the side due to an uneven floor. He sustained injuries to left foot, left hand, left wrist and right hand and fingers in the fall. The claimant has undergone numerous surgeries for his left foot and left hand. 6. The claims adjuster, Misty Risch, testified that the carrier accepted the injuries to the Claimant's left foot, left hand, left wrist and right hand and fingers as compensable and provided medical care. Ms. Risch testified, in her deposition, that the Claimant's neck and back were never compensable body parts for the 6/29/12 industrial accident. There was no evidence presented at trial to the contrary. Ms. Risch also testified that the Claimant had been paid 108 weeks of temporary indemnity benefits, four weeks more inadvertently paid beyond the maximum 104 weeks of temporary indemnity eligibility period provided in sections (2)(a) and (4)(c), Fla. Stat. 7. The medical composites admitted by both parties demonstrates that the Employer /Carrier initially provided treatment for the compensable body parts which include Page 7 of 20

8 the left foot, left hand, left wrist, right hand and right fingers. The Claimant first treated at U.S. Healthworks the day of his accident and was diagnosed with a left 5th metatarsal fracture and left wrist dislocation. He was subsequently referred to an orthopedic physician for ongoing care and the Employer /Carrier authorized Dr. Steven Steinlauf, M.D., to treat the Claimant's left foot who first saw the Claimant on 7/5/12. Dr. Steinlauf offered the Claimant surgery to repair the left foot fracture, but the Claimant opted to proceed with non- operative treatment initially. Ultimately the Claimant elected to have surgery and Dr. Steinlauf surgically repaired the left foot fracture on 8/24/12. Upon the Claimant's 11/8/12 follow up visit with Dr. Steinlauf, this surgical wound was well healed and the doctor noted consolidation of the bone graft with adequate alignment and no hardware failure. Dr. Steinlauf pointed out that there were no objective findings identified to account for the Claimant's ongoing subjective pain complaints. When the Claimant returned on 11/29/12 he was diagnosed with a closed fracture of the 5th metatarsal bone of the left foot, released to full duty work, and Dr. Steinlauf again noted that the Claimant's ongoing subjective pain complaints far outweighed any objective medical findings. On 1/3/13 the Claimant returned to Dr. Steinlauf with ongoing pain complaints but the doctor was unable to explain the pain due to a lack of objective medical findings. Dr. Steinlauf placed the Claimant at Maximum Medical Improvement (MMI) on 1/3/13 and assigned the Claimant a 0% Permanent Impairment Rating (PIR) regarding the left foot injury. 8. The Claimant was subsequently seen by Dr. Charles Southerland, DPM, at Barry University Foot & Ankle Institute for a second opinion relative to his left foot on 2/13/13. Dr. Southerland performed a physical examination of the Claimant and his records reveal that the Claimant's subjective complaints to be out of proportion to the objective clinical findings. The doctor further stated that the Claimant's response to palpation upon examination was also exaggerated. Dr. Southerland opined that given the Claimant's "propensity for symptom magnification" that it would be appropriate to remove the screw implanted at the time of his 8/24/12 surgery. Page 8 of 20

9 9. The Claimant then returned to Dr. Steinlauf on 5/24/13 and the doctor discussed in detail the Claimant's options for ongoing care including hardware removal. The Claimant elected to undergo this hardware removal surgery and it was performed on 6/20/13. Mr. Gomez followed up with Dr. Steinlauf on 7/5/13 and the medical records of that day reflect that the Claimant requested Percocet for pain. The doctor advised Mr. Gomez that no further narcotics would be prescribed as there were no objective findings to substantiate the claimant's ongoing pain complaints. Dr. Steinlauf also advised the Claimant that it was not reasonable for him to continue returning to emergency room to obtain narcotic pain medications. Dr. Steinlauf then released the Claimant to work full duty on 7/5/13. The Claimant last saw Dr. Steinlauf on 8/30/13 and the doctor noted continued complaints of pain in the left foot. Dr. Steinlauf diagnosed the Claimant with a "healed 5th metatarsal fracture without evidence of peroneal pathology, sural nerve pathology, nerve mediated pain syndrome, or any other obvious pathology to account for his pain." The Claimant was again placed at MMI with an assigned a 0% PIR and no work restrictions. 10. Relative to the Claimant's left hand /wrist and right hand /fingers, Mr. Gomez was authorized to receive orthopedic care with Dr. Tosca Kinchelow, M.D. The medical records reflect Dr. Kinchelow initially saw the Claimant on 7/3/12 and placed him on work restrictions. On 1/18/13, Dr. Kinchelow recommended the Claimant undergo a left wrist arthroscopy and right middle finger trigger finger injection. The Claimant was maintained the same work restrictions. The left wrist arthroscopy was performed by Dr. Kinchelow on 2/11/13, and on 2/15/13 Dr. Kinchelow released the claimant to work with restrictions. By 7/16/13 the Claimant's work restrictions consisted of a 30 pound restriction using both hands and a 40 pound occasional restriction using both hands with use of a splint as needed. On 8/13/13 Dr. Kinchelow recommended a left De Quervain's release of the first dorsal compartment and maintained Mr. Gomez on the work restrictions assigned on 7/16/13. On 10/21/13 the Claimant underwent the left De Quervain's release procedure by Dr. Kinchelow after the doctor obtained an MRI of the Claimant's right wrist in September of Page 9 of 20

10 2013 to rule out acute injury to the right wrist due to the Claimant's complaints of right wrist pain. Since no acute injuries were identified on the MRI of the Claimant's right wrist and the ligament were intact, Dr. Kinchelow made no further recommendations for surgical intervention for the right wrist. Upon the Claimant's 10/29/13 follow up visit with the doctor, the claimant was again assigned certain work restrictions. Finally, on 2/11/14 Dr. Kinchelow placed the Claimant at MMI for both the right hand and left wrist, assigned a 5% PIR, and released him to work full duty with no restrictions. 11. The Claimant continued treating with Dr. Kinchelow and MMI of 2/11/14 was ultimately rescinded on 6/24/14. Dr. Kinchelow's medical notes reflect that the Claimant was on full duty work status with no restrictions from 2/11/14 through 1/19/15 when he underwent a left wrist arthroscopy and debridement to clean out inflammation and scar tissue in the left wrist. Dr. Kinchelow's depositional testimony of 6/16/15 shows that she spoke with the Claimant's attorney on 2/17/15 and subsequently changed her opinion regarding the Claimant's work status on a retroactive basis. Notably, from 6/24/14 through 1/19/15 Dr. Kinchelow only advised the Claimant that he was on a full duty work status. Mr. Gomez was never told that from 6/24/14 through 1/19/15 he had any work restrictions whatsoever. Not until 2/17/15, after Claimant's counsel spoke with Dr. Kinchelow, that the doctor decided to retract the Claimant's full duty work release from 6/24/14 through 1/19/15 and assign the Claimant work restrictions during that period of time. Nevertheless, on 4/6/15 the Claimant underwent a surgical procedure to the left wrist to remove the pins implanted during the 1/19/15 surgery. When the Claimant followed up with Dr. Kinchelow on 4/14/15 he was again released to work with restrictions and therapy was recommended. 12. Dr. Kinchelow's deposition demonstrates that the Claimant subsequently missed a number of follow up appointments with Dr. Kinchelow, and he had not hegun the therapy recommended by the doctor as of 6/16/15 when the doctor's deposition was taken. Dr. Kinchelow expressed concern at the taking of her deposition that the Claimant was not adhering to the treatment plan she recommended and noted that such prevented her from helping him get better. The doctor even considered placing the Claimant at MMI due to his Page 10 of 20

11 medical non -compliance as of 6/16/15. Dr. Kinchelow's records even include a note dated 5/5/15 from her physical therapy facility advising her that they had been unable to reach the Claimant for him begin his therapy. Mr. Gomez returned to see Dr. Kinchelow on 6/17/15, one day following her deposition; the claimant was assigned a 2 to 3 pound occasional lifting restriction for the left wrist. Notably, the doctor testified that although the claimant could not perform heavy construction at that time, there was work he could still perform. On 7/21/15 this work status was maintained and additional physical therapy was recommended. On 8/11/15 the claimant's work restrictions for the left wrist were increased to provide for a 5 to 10 pound restriction and instructions and to use a left wrist splint. As of 9/29/15, Dr. Kinchelow noted that the claimant continued to complain of pain not supported by MRI findings although she felt his pain would still improve with time. On 9/29/15, the claimant was also provided a two handed 10 pound lifting restriction as needed. Through the date of the merits hearing, the claimant has not been placed at MMI by Dr. Kinchelow, although she anticipates that he will be released to work at full duty capacity with no permanent work restrictions in the future. 13. The claimant has also received authorized psychiatric care with Dr. Fernando Stern, M.D. The claimant's initial evaluation with Dr. Stern occurred on 4/15/13. The claimant is still treating with Dr. Stern; however, the records in evidence do not reflect that Dr. Stern has assigned MMI or work restrictions of any kind from a psychiatric perspective. 14. The Claimant presented medical evidence through their independent medical examiner (IME), Dr. Edward Suarez, M.D., a physiatrist. Dr. Suarez saw the Claimant for his evaluation and the physical examination lasted twenty (20) minutes according to the doctor's own testimony. The Claimant asserts that this tribunal should accept Dr. Suarez's opinion that the Claimant is currently unable to work. However, I find that Dr. Suarez' testimony is significantly flawed and unsupported by the totality of the medical evidence presented in this case. First, Dr. Suarez opined that the Claimant should be considered out of work taking Page 11 of 20

12 into considering the Claimant's collective injuries as a whole. I find it significant that Dr. Suarez included in his conclusion that the Claimant's right foot and ankle pain were part of the collective restrictions taking him off of work. However, the right foot and ankle are not compensable conditions stemming from the captioned industrial accident. I also find significant that Dr. Suarez appeared unaware of the fact that the claimant's authorized treating physician, Dr. Steinlauf, had already removed hardware from the Claimant's left foot. Therefore, I reject Dr. Suarez's ultimate medical opinions regarding that the Claimant is unable to work based on the combination of the doctor's perceived claimant's restrictions. I also find it significant that Dr. Suarez concluded that it was premature to assign permanent work restrictions to the Claimant's upper extremities, and conceded that the Claimant is not yet at overall MMI based on Dr. Kinchelow's ongoing recommendations for remedial care. Finally, Dr. Suarez said that he would defer to Dr. Steinlauf regarding work restrictions for the Claimant's left foot, which is inconsistent with his ultimate conclusion that the Claimant is unable to work due to the collective whole of the restrictions to the hands and feet. Having reviewed the medical records introduced in evidence by parties, as well as the deposition of Dr. Kinchelow, I accept, and find more credible, Dr. Kinchelow's testimony and medical records as the best evidence of the Claimant's current medical condition and the doctor's opinions regarding the claimant's need for remedial care, lack of maximum medical improvement, and the potential for a full duty release upon completion of the remedial care. Furthermore, I accept Dr. Steinlauf's opinions over Dr. Suarez' opinions in that Dr. Steinlauf has found that the Claimant had reached maximum medical improvement as of 8/30/2015 with a 0% permanent partial impairment rating. Dr. Steinlauf also concluded that the Claimant was released full duty. 15. The Claimant testified at trial that he continues to receive medical care from Dr. Kinchelow. Mr. Gomez indicated that Dr. Kinchelow has recommended further surgery for the upper extremity injuries. Mr. Gomez indicated that he continues to receive remedial care to the left wrist and will consider the right wrist surgery following the conclusion of the Page 12 of 20

13 left wrist treatment. Mr. Gomez also indicated that he continues to have significant problems with his compensable left foot injury. Conclusions of Law: 16. Based on the above findings, I conclude that the Claimant has been paid 108 weeks of temporary indemnity disability benefits In light of the fact that over 104 weeks of temporary indemnity benefits have been paid to the Claimant to date, any claim for additional TTD /TPD benefits from June 28, 2015 and continuing as requested by the Claimant must be denied as statutory eligibility for further temporary indemnity benefits has expired. 17. The claimant's counsel argues the Westphal case supports her claim for ongoing TTD and /or TPD from 6/28/15 forward. Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013). I reject this conclusion. I conclude, as carrier argues, that the Westphal case does not provide a basis for a claimant to receive TTD or TPD benefits in excess of 104 weeks, but rather allows a claimant to apply for PTD benefits upon exhaustion of 104 weeks of temporary benefits without needing to show placement at MMI. Id. Westphal merely holds that "[a] worker who is totally disabled as a result of a workplace accident and remains totally disabled by the end of his or her eligibility for temporary total disability benefits is deemed to be at maximum medical improvement by operation of law and is therefore eligible to assert a claim for permanent and total disability benefits. This conclusion is supported by the text of the Workers' Compensation Law and it eliminates the possibility that disabled workers will fall into an indefinite gap in which they would not be entitled to apply for disability benefits." Id. at 442. Accordingly, an injured worker could now argue that she /he has reached MMI by operation of law in order to pursue a PTD claim, although proof of competent and substantial evidence of entitlement to PTD benefits must be presented. Westphal goes on to state that "[a]n employee whose temporary indemnity benefits have run out - or are expected to do so imminently - must be able to show not only total disability upon the cessation of temporary benefits but also that total disability will be existing after the date of maximum medical improvement. The underlying principle was Page 13 of 20

14 described in the opinion as a narrow but necessary exception to the longstanding rule that permanent total disability benefits are not awardable before the claimant has reached maximum medical improvement." Id. Accordingly, the claimant here must establish evidence of total disability after exhaustion of his 104 weeks of temporary indemnity benefits and also that he will remain totally disabled after overall MMI is reached. The claimant here was unable to present such evidence of either of these requirements or carry the burden of proof. Significantly, after 6/24/14, the claimant was only UD from 1/19/15 through 4/13/15 and the Employer /Carrier paid TTD benefits during that period. Further, as to a contention that the claimant will in fact be totally disabled once placed at actual MMI, Dr. Kinchelow anticipates a full duty work release for Mr. Gomez and, the claimant's own Independent Medical Examiner (IME), Dr. Suarez, feels that it is premature to assign permanent work restrictions for the claimant's upper extremities. Accordingly, there is no evidence before this tribunal of any permanent work restrictions anticipated for the claimant. 18. I also note claimant's argument that Westphal serves to allow an award of ongoing temporary indemnity benefits beyond 104 weeks period is squarely addressed by Ramirez v. Jorda Enters., 164 So.3d 1291 at 1292 (Fla. 1st DCA 2015), which holds that "[b]ased on this Court's decision in Westphal v. City of St. Petersburg /City of St. Petersburg Risk Management, 122 So.3d 440 (Fla. 1st DCA 2013) (en banc), the Judge of Compensation Claims correctly limited the award of temporary benefits to 104 weeks." Accordingly, the claimant may be able to argue that he has reached MMI by operation of law in light of his 104 weeks of temporary indemnity benefits exhaustion, but law still requires him to carry his burden of proof that he is entitled to permanent total disability (PTD) benefits through competent and substantial evidence Analyzing the facts and law I find, the claimant has not met his burden of proving entitlement to permanent total disability (PTD) benefits. First, the claimant did not suffer a catastrophic injury. Pursuant to section (1)(b), Fla. Stat. (2015), an injured Page 14 of 20

15 employee is presumed permanently and totally disabled if he or she suffers (1) a spinal cord injury involving severe paralysis, (2) amputation of a limb involving loss of use of that appendage, (3) severe brain or closed -head injury, (4) second -degree or third -degree burns to 25 percent of the body or third- degree burns to at least 5 percent to the face and hands, or (5) total or industrial blindness. The claimant in this matter did not sustain a catastrophic injury as defined by statute and as such must demonstrate entitlement to PTD benefits by way of physical and vocational limitations once placed at actual MMI, which he has failed to do. Furthermore, there is no evidence that the claimant has been placed at overall MMI. "An award of PTD benefits is generally deemed premature before an injured worker reaches MMI." Anderson & Padgett Sawmill v. Collins, 686 So.2d 795 (Fla. 1st DCA 1997); See also Florida Transport 1982, Inc. v. Quintana, 1 So.3d 388 (Fla. 1st DCA 2009). The Claimant here concedes that he is not at overall MMI per his portion of the Uniform Pretrial Stipulation completed on 9/16/15 and approved on 9/17/15. Furthermore, there was no evidence presented that Mr. Gomez has been placed at overall MMI. To the contrary, the only evidence before this tribunal is that overall MMI has not yet been reached. Dr. Kinchelow, who performed the claimant's last left wrist procedure on 4/6/15, testified that the claimant's MMI was lifted as of 6/24/14. Additionally, none of the medical reports and /or DWC -25 forms of Dr. Kinchelow from 6/24 /14 through the present indicates that the claimant has been placed at MMI by the physician. Further, the claimant's own Independent Medical Examiner (IME), Dr. Suarez, testified that the claimant is not yet at overall MMI. 20. I further conclude that the Claimant has not proven, with competent and substantial evidence, that upon placement at actual MMI he will be unable to engage in at least sedentary employment, within a 50 -mile radius of his residence, due to his physical limitations, pursuant to section (1)(b), Fla. Stat. (2015). It is the claimant's burden to establish entitlement to permanent and total disability benefits. Wal -Mart Stores, Inc. v. Thompson, 974 So.2d 516, 517 (Fla. 1st DCA 2008). It is the position of the Employer /Carrier that the claimant will fail to meet this burden. Page 15 of 20

16 Pursuant to City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998), if a claimant is not at overall MMI after receiving 104 weeks of temporary benefits, the claimant may nevertheless establish entitlement to PTD benefits by proving that upon reaching actual overall MMI, he will not be able to engage in at least sedentary work within a 50 -mile radius of his residence. Pursuant to applicable case law, a claimant's physical limitations are established by way of medical evidence and opinions as to his work status and work restrictions. As guidance, the Court in Diocese of St. Petersburg v. Cayer, 79 So.3d 82 at 82 (Fla. 1st DCA 2011), held that "[a] claimant who does not have a listed injury may prove entitlement to permanent total disability benefits by presenting evidence of (1) permanent medical incapacity to engage in at least sedentary employment, within a 50 -mile radius of the employee's residence, due to physical limitation; (2) permanent work - related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work -related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors." Citing Blake v. Merck & Company, 43 So.3d 882 (Fla. 15t DCA 2010). There has been no evidence presented here that upon the claimant reaching actual MMI, he will not be able to engage in at least sedentary work. There is no evidence that the claimant has a permanent medical incapacity as required by Blake v. Merck & Co., 43 So.3rd 822 (Fla. 1st DCA 2010) 21. Dr. Steinlauf long ago released the claimant to work full duty with no restrictions relative to the left foot as of 7/5/13. Dr. Suarez testified that he deferred to Dr. Steinlauf regarding work restrictions for the claimant's left foot. In light of such deferral, the claimant has no work restrictions relative to the left lower extremity. Evidence from Dr. Stern provides that no work restrictions have been assigned from a psychiatric perspective since the claimant has been treating with him. Dr. Kinchelow testified that she performed the claimant's third and fourth surgical procedures on 1/19/15 and 4/6/15 because she felt that she could continue to improve the claimant's overall condition. Dr. Kinchelow further testified the surgical procedures were performed in order to improve the claimant's overall Page 16 of20

17 functionality. At the time of Dr. Kinchelow's 6/16/15 deposition, the claimant had yet to complete or even begin the post- operative physical therapy the doctor recommended after the 4/6/15 procedure; nevertheless Dr. Kinchelow testified that she anticipated that the claimant would eventually return to work in a full duty capacity with no restrictions. Upon direct examination by claimant's counsel, Dr. Kinchelow testified that she anticipated the claimant to return to work full duty six months post operatively. Further, claimant's IME physician, Dr. Suarez, also testified that in light of the ongoing treatment that the claimant needed for both of the upper extremities which would serve only to improve the claimant's overall condition it was too soon to assign any permanent work restrictions. 22. I further conclude the Claimant did not provide evidence of an exhaustive unsuccessful job search coupled with permanent physical restrictions in an effort to prove entitlement to PTD benefits. Pursuant to the Diocese case, the Claimant argues he is entitled to PTD benefits as a result of a lengthy and unsuccessful job search. I reject this argument. The claimant presented written job search documentation showing he looked for work at only eighteen businesses over a five month period. Such efforts in no way support an argument that the claimant has performed a lengthy and unsuccessful job search. While the Claimant concluded that he had searched for other jobs outside of the written documentation, following cross -examination of the Claimant on this subject, I questioned the Claimant's credibility regarding his testimony as it relates to searching for work beyond what has been provided to this Court as written documentation. Following the evidence in the record of both the direct and cross -examinations relating to the job search, I conclude that the Claimant failed to present sufficient and credible evidence of an exhaustive job search. Irrespective of any argument that the claimant may have performed a lengthy and unsuccessful job search, there is no evidence before this Court of the claimant's permanent work - related physical restrictions which serve to make a job search irrelevant under this theory. Again, Dr. Kinchelow has made it clear that there is no reason to believe the claimant will have any permanent restrictions in the future and Dr. Suarez feels that it is Page 17 of 20

18 premature to address claimant's potential permanent work restrictions. Premature PTD claims have been addressed by the Courts to date and the issues presented to the Courts have included scenarios similar to the claimant in the instant matter. The Employer /Carrier again point out to this Court that the claimant has not been placed at overall actual MMI by all treating physicians. Accordingly, "[i]f a claimant who has not reached MMI presents no evidence that he or she will be totally disabled when MMI is reached, any claim for PTD benefits is premature." Olmo v. Rehabcare v. Starmed /SRS, 930 So. 2d 789 at 793 (Fla. 1st DCA 2006); See also Rivendell of Ft. Walton v. Petway, 833 So. 2d 292 at 296 (Fla. 1st DCA 2002) ( "[A]ny determination that Claimant is entitled to PTD benefits now -before the effects of... treatment and care are known -is premature. "). Dr. Suarez testified that since the claimant's potential right trigger finger surgery has not been done, it is premature to know what result the surgery will produce. Further, Dr. Kinchelow's notes and testimony consist of a treatment plan involving a potential right trigger finger surgery. Based on the still outstanding treatment needs of the claimant, the current claim for PTD is premature because there is no evidence as to the claimant's permanent or anticipated permanent work restrictions which are needed to support a claim for PTD benefits. 23. As I have concluded earlier, Dr. Suarez was able to delineate specific restrictions for the claimant's upper extremities even though he felt that the claimant was out of work. His ability to assign restrictions to all body parts individually, none of which included a no work status, yet taking a position that he was unable to work is contradictory. Dr. Suarez even agreed with Dr. Kinchelow's current 10 pound bilateral lifting restriction for the upper extremities. Most notably, Dr. Suarez's position that the claimant is out of work, which is not properly supported, is not permanent. Dr. Suarez's testimony that permanent work restrictions could not be assigned for the claimant at this time serves to support the Employer /Carrier's position that the pending PTD claim is premature. 24. Further, I conclude the claimant did not prove permanent work related physical restrictions that, while not alone totally disabling precluded claimant from engaging in at least sedentary employment when combined with vocational factors. While a claimant Page 18 of 20

19 can be awarded PTD benefits if he can prove that although "permanent physical restrictions alone do not preclude him from engaging in sedentary work, the combination of his physical limitations and vocational abilities render him permanently and totouydisab ed."5eeo so, Ferrell Gas v. Childers, 982 So.2d 36, 36 (Fla. 1stDCA 2008); See also Garcia v. Fence Masters, Inc, 16 So.3d 200 (Fla. 1st DCA 2009) see also Wal-Mart Stores, Inc. v. Thompson, 974 So.2d 516, 517 (Fla. 1st DCA 2008\. The Claimant presented evidence by vocational expert, John Roberts. Mr. Roberts ultimately concluded that there was no work within a fifty mile radius of the Claimant's home and the Claimant would not be able to return to work based on the Claimant's restrictions and vocational background. However, as I concluded with Dr. Suarez, I also conclude that the vocational opinions of Mr. Roberts are flawed. While Mr. Roberts' opinion is uncontroverted testimony, it is based upon, in large part, the medical conclusions of Dr. Suarez. As pointed out above, Dr. Suarez' testimony is flawed for a number of significant reasons. For another expert to rely on that same flawed testimony, only leads to a conclusion that that testimony of the vocational expert is also flawed and is not competent substantial evidence of the Claimant's inability to find work. I also find it significant that the expert, Mr. Roberts, drew his conclusions upon restrictions that he readily admitted were not permanent restrictions. Even if Mr. Roberts' opinion was not flawed as described above, those opinions are not based on the permanent restrictions which is required by law in order to draw conclusions in the Claimant's favor as it relates to whether he is permanently and totally disabled. I also find it significant that Mr. Roberts conducted a labor market survey in an area of South Florida without pinpointing the Claimant's residence. The survey was done in this manner because the Claimant presented himself as homeless and/or living with different friends when the interview was conducted with the vocation expert. However, on cross-examination of the Claimant, Mr. Gomez readily admitted to living with his mother since this past summer. The vocational interview, however, was done this past October. It was at that time that the Claimant told the vocational expert that he was homeless. It is also significant to point out that the Claimant's IME with Dr. Suarez was also done in October. At that time the Claimant also Page 19 of 20 05CC CASE NO.: JD.

20 indicated that he was homeless to his IME physician. All of this evidence reviewed in para materia leads to the conclusion that the Claimant was inconsistent and not credible in his testimony of where he actually lived during the re evnnttirnefronneo presented to this tribunal. Therefore, I do not accept vocational testimony as reliable in this regard and conclude that it is not proof of competent substantial evidence of an appropriately conducted labor market survey or conclusions by the vocational expert based on the Claimant's internal inconsistencies and presentation to both this tribunal, his own IME doctor, and the vocational expert. Also I conclude that that the claimant's vocational abilities are irrelevant as there is no evidence that the claimant will ever be assigned permanent work restrictions of any kind. Dr. Kinchelow opined that the claimant would be released to work full duty. Even the claimant's own IME physician, Dr. Suarez, agreed that it was too soon to speculate relative to any potential permanent work restrictions for the claimant. In light of no evidence of permanent work restrictions and no evidence of anticipated permanent work restrictions, the claimant's vocational abilities are irrelevant at this juncture. WHEREFORE, it is ORDERED that the claims of the Employee, Leonard Ernesto Gomez, based on his injury by accident on June 29, 2012 for the workers' compensation benefits, attorney fees and costs raised in the aforementioned petitions for benefits are hereby DENIED. DONE AND ORDERED in Chambers at Tallahassee, Leon County, Florida. 4»ob 41ii Judge of Co nsation Claims IFICATE OF SERVICE I HEREBY certify that a true and rrewt copy of the foregoing has been ed to Counsel for the Parties listed above on day of January, Page %Oof21 OJCC CASE NO.: JJL Assista to Judge of Compensation Claims