FINAL COMPENSATION ORDER

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS PORT ST. LUCIE DISTRICT OFFICE Nivia L. Lascaibar, Employee /Claimant, vs. Stack, Fernandez, Anderson & Harris /Castlepoint National, Employer /Carrier /Servicing Agent. / OJCC Case No KFO Accident date: 11/25/2013 Judge: Keef F. Owens FINAL COMPENSATION ORDER THIS CAUSE was heard before the undersigned in Port St. Lucie, St. Lucie County, Florida on November 2, 2016, upon a Petition for Benefits. The Petition for Benefits (PFB) was filed on February 12, 2016 (DN 114). A Response was filed on February 23, 2016 (DN 125). Mediation was conducted on May 26, 2016, and no issues were resolved. The Pretrial Compliance Questionnaire was filed on July 21, 2016 (DN 147). The Claimant filed a Trial Memorandum on August 30, 2016 (DN 161). The Employer /Carrier filed a Trial Memorandum on August 30, 2016 (DN 160). D. Robert Wells, Esq. was present by Video Teleconference from Miami, on behalf of the Claimant Andrew R. Borah, Esq. was present by Video Teleconference from Miami on behalf of the Employer /Carrier. The issues which remained to be addressed at the time of the hearing included: 1. Authorization and provision of follow up medical appointment with an authorized provider for further /updated evaluation of compensable cervical and low back injuries. 2. Attorney's fees and costs. The defenses included: 1

2 1. Authorization of follow up appointment is not medically necessary as EMA has already addressed this issue. 2. Further medical care is not medically necessary as it relates to the industrial accident. 3. The claimant's cervical and lumbar conditions have resolved. 4. The industrial accident is no longer the Major Contributing Cause of the claimant's need for treatment. 5. All further benefits are denied due to claimant's violation of (4). 6. Res judicata. 7. Attorney's fees and costs are not due or owing. The claimant responded to these defenses as follows: 1. No break in chain of causation. 2. No subsequent intervening accident of [sic] injury break chain of causation. 3. Perez v. Southeastern Freight Lines Gallagher Bassett. 4. F.S (3)(d) &(i). 5. "120 Day Rule." (2)(h). The employer /carrier responded: 1. Claimant's affirmative responses are not pled with sufficient specificity for the E/C to be able to respond to them. The following pleadings and exhibits were identified at the initiation of the hearing: Judge's Exhibits: Exhibit #1: Petition for Benefits filed on February 12,

3 Exhibit #2: Attachment to Petition for Benefits filed on February 12, 2016 (July 2, 2015, Mediation Agreement). Exhibit #3: Response to Petition for Benefits filed on February 23, Exhibit #4: Uniform Statewide Pretrial Stipulation filed on July 21, Exhibit #5: Pretrial Order and Notice of Final Hearing Entered July 21, Exhibit #6: Claimant's Trial Memorandum filed August 30, Exhibit #7: Employer /Carrier's Trial Memorandum filed August 30, Claimant's Exhibits: Exhibit #1: Exhibit #2: Deposition of Linda Rhoads taken on August 11, 2016, and filed on August 30, Deposition of Dr. Barry Burak taken on August 31, 2016, and filed on September 1, Exhibit #3: Amended Order on the Merits entered on February 22, Exhibit #4: Response to Petition for Benefits filed on February 5, Employer /Carrier's Exhibits: Exhibit #1: Exhibit #2: Deposition of Dr. Jonathan Hyde taken August 17, 2016, and filed on August 29, Letter from the Honorable Robert Dr. McAliley to Dr. Jonathan Hyde dated May 19, Exhibit #3: Deposition of Dr. Jay Stein taken on July 5, 2016, and filed on August 29, Exhibit #4: Exhibit #5: Deposition of Dr. Salvador Ramirez taken on June 27, 2016, and filed on August 29, Deposition of Nivia Lascaibar taken on August 2, 2016, and filed on August 29, Exhibit #6: Transcript of hearing of February 19, 2016, filed on August 19,

4 Exhibit #7: Employer /Carrier's Notice of Defense Under Section (4) and (4). Exhibit #8: Response to Petition for Benefits filed April 23, The sole live witness in this matter was the claimant, Nivia Lascaibar. Dr. Burak, Dr. Hyde, Dr. Stein, Dr. Ramirez, and the adjuster testified by deposition. In making my findings of fact and conclusions of law, the undersigned Judge of Compensation Claims has carefully considered and weighed all of the testimony and evidence presented. Although specific reference may not be made to each portion of the testimony and each piece of documentary evidence, the undersigned has attempted to resolve all of the conflicts in the testimony and evidence. Based on the foregoing and the applicable law, I make the following findings: The undersigned has jurisdiction of the parties and the subject matter. The stipulations of the parties are adopted and shall become part of the findings of fact herein. The documentary exhibits offered by the parties are admitted into evidence and shall become part of the record, with the exception of those pleadings which were admitted for argument purposes only. Factual background The claimant, Nivia Lascaibar, was involved in a work -related accident on November 25, 2013, in the course and scope of her employment with Stack, Fernandez, Anderson & Harris. On that date, she injured her back and neck while lifting boxes. As a result of the accident, the employer /carrier authorized treatment with Dr. Salvador Ramirez, an orthopedic surgeon. Dr. Ramirez saw the claimant on a single occasion on February 13, He diagnosed a cervical sprain and lumbar sprain. In his DWC -25 form of the same date, he anticipated that the claimant would reach MMI within six weeks. 4

5 The claimant requested a change in treating physicians and came under the care of Dr. Jay Stein, an orthopedic surgeon, who evaluated the claimant on May 12, Her symptoms at that time included intermittent numbness and tingling about the hands, low back pain, and numbness of the left leg. Dr. Stein diagnosed cephalagia and lumbago with a normal orthopedic examination. His report indicates that the claimant's symptoms, "in their majority," did not relate to her November 25, 2013, accident. He felt that the claimant's subjective complaints were not substantiated by objective findings, her cervical changes were chronic, and some of her symptoms did not follow an anatomic distribution. He concluded: "No further care or treatment is felt to be indicated or necessary." A Petition for Benefits was filed on April 10, 2015, seeking an upper extremity nerve conduction examination with SSEP and EMG, examination by a psychiatrist, examination by a neurosurgeon, examination by a neurologist, placement in a pain management program, a TENS unit, and an orthopedic mattress. These modalities were apparently recommended by Dr. Barry Burak, a chiropractor who served as the claimant's Independent Medical Examiner (Dr. Burak's initial report was not submitted by either party at the November 2, 2016, hearing). As a result of the apparent conflict in medical opinions, Dr. Jonathan Hyde, an orthopedic spine surgeon, was appointed to serve as the Expert Medical Advisor. Dr. Hyde evaluated the claimant on September 2, 2015, and prepared a report on or about September 27, He concluded his report by answering the questions posed to him as follows: 3. Regardless of whether claimant is at maximum medical improvement, does she require the following tests, examinations, further medical care, or additional devices as a result of her industrial accident: a. An upper extremity nerve conduction examination with SSEP and EMG? NO 5

6 b. An examination by a psychiatrist? NO c. Examination by a neurosurgeon? NO d. An examination by a neurologist? NO e. Placement in a pain management program under the auspices of a physiatrist? NO f. The provisional have a TENS unit? NO g. The provisional have an orthopedic mattress? NO 4. Irrespective of your answers to questions 3, above, and it subparts, this claimant require any further medical care as a result of her industrial accident, whether it be remedial or palliative, and if so what you recommend? NO Less than five months later, on February 12, 2016, a Petition for Benefits was filed. The petition sought "authorization and provision of follow up medical appointment with an authorized provider for further /updated evaluation of compensable cervical and low back injuries." This is the petition currently at issue. Subsequently, a hearing took place on February 19, 2016, regarding the issues raised in the April 10, 2015, Petition for Benefits. The prior Judge of Compensation Claims entered an order on February 22, 2016, denying the benefits requested within the April 10, 2015, petition. On February 23, 2016, the employer /carrier filed a response to the February 12, 2016, petition which indicated: "Follow up appointment with an authorized provider is not medically necessary." The claimant underwent an updated Independent Medical Examination with Dr. Barry Burak on August 24, Subsquent to the updated IME, Dr. Burak concluded that the claimant's diagnoses included cervical radiculitis with upper extremity paresthesia due to disc herniation at C4-5, and bulging annuli at C5-6 and C6-7, together with degenerative changes 6

7 causing abutting, flattening and indenting of the thecal sac and causing foraminal stenosis as well as lumbar radiculitis due to bulging annuli at L4-5 and L5-S1, together abutting the thecal sac causing left foraminal stenosis. Dr. Burak's recommendations included an upper extremity nerve conduction examination, new cervical and lumbar MRI studies, examination by a neurologist, consult with a pain management specialist, a lumbar support, and a treatment plan of physical therapy and/or chiropractic treatment to take place 3 times per week for 12 weeks. Legal Analysis The claimant seeks an award of authorization of a follow up medical appointment with an authorized provider for further /updated evaluation of her compensable cervical and low back injuries. In defense of this claim, the employer /carrier raised both a major contributing cause defense and a medical necessity defense. In light of these defenses, the claimant raised three related responses, arguing that there has been no break in the chain of causation, arguing there has been no subsequent intervening accident or injury, and citing Perez v. Southeastern Freight Line, Inc., 159 So. 3d 412 (Fla. 1st DCA 2015). As a result, the claimant effectively argues as a threshold matter that the employer /carrier are barred from denying the benefit requested. Perez v. Southeastern Freight Lines, Inc., 159 So. 3d 412 (Fla. 1st DCA 2015). Perez v. Southeastern Freight Lines, Inc., 159 So. 3d 412 (Fla. 1st DCA 2015), represents a good point of departure for the analysis in this matter, as the First District Court of Appeal explained the burdens of the parties under circumstances somewhat similar to those of the instant case. The court held that "a claimant has the burden to prove his entitlement to workers' compensation benefits, [but] once a claimant has established compensability of an injury, for example by a prior ruling or a stipulation, an employer /carrier cannot challenge the causal 7

8 connection between the work accident and the injury, but only the causal connection between the injury and the requested benefit." The court went on to hold that the employer /carrier have the burden of proof of demonstrating a break in the causal chain, such as the occurrence of a new accident or that treatment is required due to a condition unrelated to the injury which was accepted as compensable. Finally, the court noted that the claimant still retains the burden to establish other aspects of proof required by statute, such as the medical necessity of the requested benefit. In Perez, the employer /carrier stipulated to compensability of the injury. The employer /carrier did not assert that there was a break in the chain of causation or any major contributing cause defense. The employer /carrier also failed to assert that the claimant did not meet his burden of demonstrating medical necessity. Like Perez, in the instant case there was a stipulation regarding compensability. The claimant points to the mediation agreement dated July 2, The agreement states, in relevant part: "Compensability of cervical and lumbar spine has been accepted." One year later, in the pretrial stipulation dated by the employer /carrier on July 20, 2016, the employer /carrier indicated the following: "The E /C /SA agree that the following specific body parts /psychiatric conditions are accepted as related to the accident: Cervical and Lumbar, but injuries have since resolved." Unlike Perez, in the instant case the employer /carrier have asserted a major contributing cause defense and they have asserted that the claimant did not meet her burden of demonstrating medical necessity. As a result, they have the burden of proof of demonstrating a break in the causal chain, such as the occurrence of a new accident or that treatment is required due to a condition unrelated to the injury which was accepted as compensable. 8

9 There is no evidence of a subsequent intervening accident or injury. In fact, there is affirmative evidence, from the testimony of the claimant, that there has been no intervening accident or injury. There is evidence that treatment is required due to a condition unrelated to the injury which was accepted as compensable. Dr. Hyde testified: QUESTION: Okay. If my client suffered an exacerbation and is still making the same complaints, would it be reasonable for her to have a follow -up evaluation of her lumbar spine? DR. HYDE: From what she has, again, I'm only seeing her as an EMA and she has had several evaluations before even being seen by myself, for what I'm seeing, she has an arthritic condition in her back with pain that can wax and wane. Her symptoms are subjective and it does not appear that future treatment to that area would be warranted for the subjective complaints that she had without significant objective findings on examination. QUESTION: Doctor, on direct examination when Mr. Borah asked you if Ms. Lascaibar had an increase in pain, what should she do, your answer, was she should be reevaluated; is that not correct? DR. HYDE: Yes. She would be reevaluated by a regular physician outside the workers' comp. She has a personal condition, which is an arthritic condition. (emphasis added) Dr. Hyde also referred to the claimant's facet arthropathy, which he characterized as a personal condition. Additionally, Dr. Stein testified: QUESTION: Doctor, are you aware of any other cause for my client's neck and back pain she has now other than her November, 2013 accident? DR. STEIN: I'm going to answer that we are talking now in 2016, so we are almost three years away from Three years is about 1,000 days.. There are innumerable events in our personal lives which I certainly am not aware of specifically, number one. Number two. I have a report from the cervical MRI of February of 2014 which I have testified has abnormalities which I believe are long- standing. For example, there is degenerative disc disease at C4-5 and C5-6. There is read by this radiologist disc 9

10 herniation at 4-5. A bulging annulus and osteophytes at C5-6. Can degenerative disc disease with bony ridging affect one's cervical spine from time to time on an aging basis? There is no that I can see structural disc abnormalities in the lumbar region on this 2014 view of bulging annulus but that's pretty much a normal finding. So other than not knowing the person's life activities and as I say having some preexisting degenerative conditions noted in the cervical region, there was some degenerative changes noted on the x -rays of the lumbar spine in my May, 2014 exam, as well as degenerative changes noted on the x -rays in the cervical spine. So I think there are other explanations that can exist, do exist. As I say, other than an incident in 2013 that I believe resolved. (emphasis added). The claimant also cites Cespedes v. Yellow Transportation, Inc., 130 So. 3d 243 (Fla. 1st DCA 2013). In Cespedes, the court noted that the "other causes" which may be considered in major contributing cause analyses include (1) preexisting injuries and conditions and (2) subsequent injuries. The claimant correctly argued in the instant case that there was no subsequent accident; however, there was a preexisting condition as noted by Dr. Hyde and Dr. Stein. In Cespedes, the JCC erred when he failed to weigh "the relative contributing forces of the two established contributing causes of Claimant's lower back injury that required medical treatment." Accordingly, in the instant case, the relative contributing forces of the two established causes of the claimant's condition must be weighed: the arthritic and degenerative conditions versus the claimant's work -related accident. As noted above, there is evidence in the form of Dr. Hyde and Dr. Stein's testimony that the claimant's pre- existing conditions, degenerative changes, facet arthropathy, and arthritic conditions are the major contributing cause of the claimant's need for treatment. In addition to the testimony noted above, Dr. Hyde also testified: QUESTION: Do you believe Ms. Lascaibar needs any further treatment, as it relates to her industrial accident? 10

11 DR. HYDE: No. Although Dr. Burak testified that the claimant's need for treatment was due to the work -related accident, I accept the opinions of Dr. Hyde and Dr. Stein over those of Dr. Burak for reasons discussed below. As a result, I find that the employer /carrier have met their burden of demonstrating a break in the causal chain, namely, that treatment is required due to a condition unrelated to the injury which was accepted as compensable. Finally, the claimant also responded to the employer /carrier's defenses in the pretrial by citing the "120 Day Rule." This is a reference to section (8), Florida Statutes. This provision does not preclude the employer /carrier from denying entitlement to a specific benefit on the grounds that it is not required due to the work -related accident. See, e.g., Checkers Restaurant v. Wiethoff, 925 So. 2d 348 (Fla. 1st DCA 2007). Medical necessity. In Perez v. Southeastern Freight Lines, Inc., 159 So. 3d 412 (Fla. 1st DCA 2015), the court held that a claimant still has the burden to establish the medical necessity of the requested benefit. Id. at 414. Therefore, even if the employer /carrier were barred from arguing that the claimant's accident does not represent the major contributing cause of the need for the requested treatment, they are not barred from arguing that the treatment is not medically necessary. The employer /carrier have, in fact, raised the medical necessity defense. The claimant has submitted the opinion of Dr. Burak as evidence of medical necessity. On August 24, 2016, the claimant was seen by Dr. Burak. In deposition, Dr. Burak was asked to explain why he felt it was medically necessary for the claimant to undergo an updated evaluation (i.e., the medical treatment at issue). He responded: 11

12 Why? Because of the severity of the problems. She has got herniated and bulging discs, and she seems to be getting worse. And she has got severe problems, and she needs care. (emphasis added). Dr. Burak's belief that the claimant seemed to be getting worse is not supported by the claimant's deposition testimony. During her deposition on August 2, 2016, approximately three weeks before her updated evaluation with Dr. Burak, the claimant was asked: QUESTION: That's fine. Since you've seen Dr. Hyde, has your condition, your pain in your back and your neck, has it improved, has it gotten worse? How has your condition been since you saw Dr. Hyde? CLAIMANT: It's the same because I really didn't get any treatment from anyone. Successions of physical therapy is nothing. Nobody has really done anything for me. (emphasis added). During the claimant's September 2, 2015, EMA appointment with Dr. Hyde, her symptoms included low back pain, right leg pain going down to the bottom of the right foot, neck pain, headaches, and pain going into the hands. During the final hearing on February 19, 2016, the claimant testified that her symptoms included low back pain, right thigh pain, headaches, neck pain, and pain in the bottom of the foot. During her deposition on August 2, 2016, the claimant testified that the symptoms resulting from her accident included low back, right leg, and neck symptoms as well as headaches and numbness in the fingers of the hands. During her evaluation with Dr. Burak on August 24, 2016, the claimant's symptoms were noted to include headaches, dizziness, memory loss, neck pain which radiated into the right trapezius, lower back pain radiating into the right lower extremity, and numbness and tingling in the hands and fingers. During the final hearing on November 2, 2016, the claimant testified that her symptoms included pain in the back of her neck, numbness and tingling in the fingers, pain in the low back, right thigh and leg symptoms, and pain in the arch of her foot. 12

13 Therefore, the claimant's symptoms have been largely the same. During the final hearing on November 2, 2016, the claimant candidly stated that her symptoms are not constant. They come and go. She did not testify that her symptoms are worsening. As a result, based upon the claimant's deposition and final hearing testimony, as well as a comparison of the complaints made in the medical reports noted above, there is no indication that the claimant's condition is worsening. Dr. Burak's assumption that the claimant's condition is worsening is not supported by the evidence. The only documented change in symptoms is Dr. Burak's indication of a complaint of memory loss, which is an outlier and not supported by the claimant's testimony and only further calls Dr. Burak's assumptions and opinions into question. Furthermore, in his written report, Dr. Burak recommended an upper extremity nerve conduction examination, new cervical and lumbar MRI studies, examination by a neurologist, a consult with a pain management specialist, a lumbar support, and a treatment plan of physical therapy and/or chiropractic treatment. Several of these modalities were previously recommended by Dr. Burak, addressed by the EMA, litigated, and denied. In any event, his report does not recommend a follow up appointment with an orthopedic surgeon. As a result, in his independent judgment, before being prompted in deposition, he did not recommend the medical treatment currently at issue. On the other hand, there is affirmative evidence that the requested treatment is not medically necessary. Dr. Stein testified by deposition: DR. STEIN: I can state that with a degree of medical probability and certainty that it would be not necessary to evaluate her in the light of a 2013 incident whose condition had resolved in 2014 and whose subjective symptoms had changed in

14 Dr. Hyde evaluated the claimant on September 2, 2015, and prepared a report on or about September 27, He was asked to answer a question which was not directly related to an issue which had been raised by a Petition for Benefits. Specifically, he was asked: "Irrespective of your answers to questions 3, above, and it subparts, this claimant require any further medical care as a result of her industrial accident, whether it be remedial or palliative, and if so what you recommend?" He answered: "NO." Dr. Hyde testified on August 17, 2016: DR. HYDE: Again, there was no objective abnormalities that would relate a traumatic injury to the patient's musculoskeletal system that I see on the examination. Her objective examination was normal. And I do not see any reason to consider any type of pain management surgery, chiropractic or other types of modalities for what was related as the subjective pains of this patient. (emphasis added). Therefore, I find that the treatment requested is not medically necessary. The role of Dr. Hyde's EMA opinions. The parties dispute the role of the opinions of Dr. Hyde and whether they are binding. The report of Dr. Hyde and the deposition of Dr. Hyde were admitted without objection. Furthermore, there was no objection to the admissibility of the opinions of Dr. Hyde. It would be error for the undersigned not to consider the opinions of Dr. Hyde. See, e.g., Lowe 's Home Centers, Inc. v. Beekman, 187 So. 3d 318 (Fla. 1st DCA 2016). The issue is whether Dr. Hyde's opinions are determinative. Section (9)(c), Fla. Stat., provides, in relevant part: "The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims." 14

15 The timeline in this matter with respect to the EMA's opinions is somewhat unique. The EMA was asked questions related to specific issues which were pending under a Petition for Benefits filed on April 10, In addition, the EMA was asked a general question which went beyond the scope of the pending petitioned issues. The answer to that question was negative from the standpoint of the claimant (and indicated no further care was required as a result of the accident). The EMA rendered those opinions on or about September 27, Subsequently, on February 12, 2016, the claimant filed a Petition for Benefits seeking a follow up appointment with an authorized provider: a benefit which was seemingly precluded by the EMA's previous opinion. In summary, rather than addressing an issue which was already pending, the EMA effectively addressed an issue before it was raised by a subsequently filed petition. Dr. Hyde' s conclusion in his report that the claimant did not require numerous specific modalities (upper extremity nerve conduction examination with SSEP and EMG, examination by a psychiatrist, examination by a neurosurgeon, examination by a neurologist, placement in a pain management program, a TENS unit, and an orthopedic mattress) does not preclude an opinion that the claimant requires some type of treatment; however, his opinion that the claimant does not "require any further medical care as a result of her industrial accident" does preclude that opinion. Furthermore, the question was coined in such a way that Dr. Hyde was given license to identify any treatment modality whatsoever. It asked him to state whether he believed any care was required as a result of the accident and, if so, what care would be recommended. He answered the threshold question in the negative. The plain language of the EMA provision provides the opinion of the EMA is presumed to be correct unless there is clear and convincing evidence to the contrary. Unlike the IME 15

16 provision, section (9) does not specifically require a "dispute" in order for an EMA to be appointed. Instead, it simply requires a "disagreement." As a result, the appointment of an EMA need not be tied to a pending Petition for Benefits or a specific hearing. The plain language does not state that the presumption of correctness dissolves once the matter addressed by the EMA has proceeded to a final hearing. There is a statutory protection from the EMA's opinion being deemed presumptively correct and affecting issues inappropriately: the Judge of Compensation Claim' s ability to reject the EMA's opinion if there is clear and convincing evidence to the contrary. The ability to reject the opinion with clear and convincing evidence is sufficient to insure that a stale opinion from an EMA does not control subsequent issues. Some threshold opinions rendered by an EMA are essentially determinative and would not become stale. For example, if the EMA concludes that the major contributing cause of the claimant's condition is a pre- existing condition as opposed to a work -related accident, the opinion is unlikely to change as more time progresses from the date the opinion was originally issued. Other opinions rendered by an EMA may become stale after a time. For example, if an EMA opines that a requested surgery is not medically necessary solely because it would be premature to perform surgery until conservative modalities are attempted, that specific opinion would be of questionable validity one year later after all conservative modalities identified by the EMA have been performed. In the lifetime of this claim, the less than five -month passage of time from the date of the EMA appointment to the filing of the PFB at issue is relatively minor The accident occurred 16

17 on November 25, As a result, when Dr. Hyde rendered his initial opinions, he did so nearly two years after the accident took place. At that time, he concluded that additional treatment was not required as a result of the accident. Even if the written opinions stated within Dr. Hyde' s EMA request could be deemed to be stale, Dr. Hyde testified on August 17, 2016, after the Petition for Benefits seeking authorization and provision of a follow up medical appointment was filed. As a result, during his deposition, Dr. Hyde effectively renewed his previous opinion. Additionally, in light of the claimant' s deposition testimony on August 2, 2016, that her symptoms were the same from the date of her evaluation by Dr. Hyde until the time of her deposition, there does not appear to be a change in circumstances which justifies rejecting Dr. Hyde's opinions as originally documented in his report. I find that there is no clear and convincing evidence which justifies departure from the presumption of correctness of the opinions of the EMA. Even if this matter is simply reduced to the weighing of opinions (rather than any conclusive effect being assigned to Dr. Hyde's opinions), I accept the opinions of Dr. Hyde and Dr. Stein over those of Dr. Burak. Dr. Hyde' s curriculum vitae reveals that he completed a residency in orthopedic surgery as well as two fellowships in spinal surgery. The 20 -page CV reveals numerous instances when Dr. Hyde served as a surgical course lecturer and laboratory instructor related to spine surgery, wrote papers which are related to the spine, lectured regarding the spine, and attended conferences and meetings related to the spine. In contrast, Dr. Burak is a chiropractor. He does not perform spine surgery. As noted above, Dr. Burak's assumption regarding the claimant' s worsening condition is not supported by the evidence. Finally, the 17

18 consistency between Dr. Stein's opinion and the opinion of Dr. Hyde bolsters both. The effect of the prior merits order. The parties both addressed the statement made by the previous Judge of Compensation Claims in the previous final order in this matter entered on February 22, The prior order states: "At least as of the time this matter was heard Dr. Stein remains authorized to treat claimant and placed her on a PRN status." The parties dispute whether this is a finding of fact and dispute its effect in this proceeding. This appears to be a finding of fact. It makes little sense otherwise. The statement cannot be construed as an award of care with Dr. Stein, as there was no specific claim being adjudicated before the JCC seeking the same. Although there was a claim pending for a follow up medical appointment with an authorized provider (the same issue being addressed by the instant order), the February 22, 2016, order recognized the claim and insulated it from a subsequent res judicata bar by stating: "The issues raised by a PFB filed February 12, 2016, are severed from these proceedings without objection." Therefore, it was clearly intended that the issue be addressed at a later date. Instead, the statement regarding Dr. Stein' s authorization status appears to be a statement of consolation made by the JCC. It attempts to point out that although all of the medical claims at issue were denied, the claimant was authorized to see Dr. Stein and could return on an asneeded basis. This statement appears to have been incorrect. If the claimant was authorized to treat with Dr. Stein at the time of the prior hearing, then there would have been no reason to sever the petition which raised the claim for a follow up medical appointment with an authorized provider 18

19 from the final hearing. Instead, the issue would have been characterized as resolved. A Response to Petition for Benefits filed on April 23, 2015, denied benefits requested in the petition of April 10, 2015, based upon its position that "the industrial accident is no longer the major contributing cause of the claimant' s need for treatment in regards to her cervical and lumbar conditions." This suggests that the employer /carrier had taken the position that all medical benefits would be denied. This would suggest that Dr. Stein was not authorized as of the date of the prior final hearing. Furthermore, the response to the currently pending Petition for Benefits indicated a follow up appointment with an authorized provider was not medically necessary. This response was filed on February 23, It is unclear whether the JCC's misimpression regarding Dr. Stein's authorization status played any role in the previous decision. Unfortunately, if it did, the time for correcting the error has passed. There is no evidence that either party filed a motion for rehearing to call this error to the JCC' s attention. A motion for rehearing is appropriate to seek clarification of a matter of fact which the judge many have overlooked. See rule 60Q , Rules of Procedure for Workers' Compensation Adjudications. A motion for rehearing which pointed out that the claimant was not authorized to see Dr. Stein would have allowed the judge to either (a) correct the finding and maintain the result or (b) correct the finding and change the result. In any event, based upon the reasoning in the order, it does not appear that the prior judge denied the requested benefits because Dr. Stein was authorized; he denied the benefits because the EMA opined that they were not required as a result of the industrial accident. As a result, it appears that a motion for rehearing would have, at most, resulted in the deletion of the sentence: "At least as of the time this matter was heard Dr. Stein remains authorized to treat claimant and 19

20 placed her on a PRN status." Neither party appealed the order. The law of the case bars consideration of legal issues that were actually considered and decided in a prior appeal. See Delta Property Management v. Profile Investments, Inc., 87 So. 3d 765 (Fla. 2012). Since there was no appeal in this case, the law of the case does not apply. Even if the prior order's comment regarding authorization of Dr. Stein is a finding, and even if the failure to appeal transformed the mistaken finding into irrefutable fact, it cannot preclude the employer /carrier from denying entitlement to the benefit at this point in time. The prefatory language ( "At least as of the time this matter was heard... "), limits the application of the finding. Even if the statement is now deemed to be accurate as a matter of law, the statement is self- limiting in scope. The current claim is not for reimbursement for past medical bills. It is a claim for authorization. As a result, the relevant period of inquiry is the present. Therefore, a previous finding regarding Dr. Stein' s authorization status at that time is not controlling For all the foregoing reasons, the claim for authorization and provision of a follow up medical appointment with an authorized provider for further /updated evaluation of compensable cervical and low back injuries is denied. It is ORDERED and ADJUDGED that: 1. The claim for authorization and provision of a follow up medical appointment with an authorized provider for further /updated evaluation of compensable cervical and low back injuries is denied. 2. The claim for attorney's fees and costs is denied. 20

21 Done and electronically served on Counsel and Carrier this 15th day of November, 2016, in Port St. Lucie, St. Lucie County, Florida. COPIES FURNISHED: Castlepoint National D. Robert "Bobby" Wells, Esquire Andrew R. Borah, Esquire Keef F. Owens Judge of Compensation Claims Division of Administrative Hearings Office of the Judges of Compensation Claims Port St. Lucie District Office WestPark Professional Center, 544 NW University Blvd., Suite 102 Port St. Lucie, Florida (772)