A south Florida construction worker will receive workers’ compensation benefits to cover a cervical spine surgery, after Florida’s First District Court of Appeal reversed an earlier rejection of compensation claims in Guerra v. C.A. Lindman.
At the heart of the case was whether the surgery was necessary, based on what the lower court indicated were conflicting medical opinions. However, the appellate court determined no dispute was technically identified by the lower courts, and therefore, coverage for the surgery was compensable.
This case is an example of how an experienced Fort Myers work injury lawyer can assist you, even beyond filing an initial claim for benefits. In many cases, injuries sustained by workers have the potential to worsen over time, requiring additional treatment. Even if this occurs months or years after the underlying incident, such treatments should be covered by the employer. The key is proving first the ailment is directly related to the work accident, and secondly showing the treatment is medically reasonable and necessary.
In the Guerra case, the initial injury occurred while the worker was employed as a construction worker for the defendant. The appellate court records don’t detail the accident, except to say that it was worthy of worker’s compensation benefits when it occurred.
He was diagnosed with two herniated discs, and as a result, sought consultation with an orthopedic spine specialist. That doctor determined the worker was not a candidate for spinal surgery at that time.
The worker then sought a one-time change of physician, as he was entitled to do under worker’s compensation law. While the doctor who treats a patient under workers’ compensation is chosen from a list of the employer’s approved care providers, patients are entitled to seek a one-time change of physician without the permission of their employer.
In this case, the second physician noted another herniated disc the patient had suffered, and recommended a surgery called a partial discectomy.
The worker then filed a petition for benefits to have that surgery covered.
In response, the employer requested the appointment of an expert medical adviser to resolve the conflict of medical opinions. That physician, after examination of the patient, indicated he did not believe the patient was a candidate for surgery, but that could change if the condition worsened.
The worker then dropped his claim for coverage of the surgery, and opted for a more conservative approach.
The following year, the patient sought treatment from a third approved doctor (the second one he’d seen declined to see the patient further). His condition had worsened, and this doctor believed the worker needed surgery. He opined the procedure should be conducted as soon as possible because otherwise nerve damage could become permanent.
Based on this, the patient filed another claim for benefits, seeking to have the surgery covered by his employer.
In response, the employer again deposed the first doctor and the expert medical adviser. Both indicated their opinion had not changed, but conceded they had not seen the patient in two years, and neither expressed any disagreement with the opinion of the patient’s new doctor. Neither was even asked to address the new doctor’s opinion.
At a hearing on the petition, the judge indicated a possible dispute of medical opinions, and appointed a new expert medical adviser. Both parties opposed. The worker indicated there was no dispute of medical opinions, because those of his first doctor and the first expert medical adviser were stale (two years old at that point) and neither argued against his current doctor’s recommendation.
The employer, too opposed it, saying the opinions of the previous two doctors already settled the issue.
The judge appointed a new expert medical adviser anyway, and that physician indicated he did not believe the surgery was necessary.
Based on this, the judge denied benefits. The appellate court ruled this was an error.
Essentially, the judge failed to recognize that the claim was founded on the new doctor’s position that the worker’s condition had gotten worse. The employer had the opportunity to refute this, but chose instead,as a strategic move, to rely on old opinions of previous doctors, and neither directly challenged the new doctor’s opinion.
This did not constitute as a disagreement of medical opinions, and the verdict was reversed and the case remanded.
Workers who experience ongoing pain, illness or disability stemming from a work injury should speak to an experienced injury attorney to determine whether ongoing treatments are covered under benefits.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Guerra v. C.A. Lindman, July 21, 2014, Florida’s First District Court of Appeal
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Carbajal v. Precision Builders – Scaffolding Fall Results in Protracted Work-Injury Claim, July 14, 2014, Fort Myers Work Injury Lawyer Blog