Chance v. Polk County School Bd.

• Decision Date: 24 February 2009
• Docket Number: No. 1D08-2235.,1D08-2235.
• Citation: 4 So.3d 71
• Parties: Anita CHANCE, Appellant, v. POLK COUNTY SCHOOL BOARD and Comp Options Insurance Co., Appellees.
• Court: Florida District Court of Appeals

4 So.3d 71

Anita CHANCE, Appellant, v. POLK COUNTY SCHOOL BOARD and Comp Options Insurance Co., Appellees.

No. 1D08-2235.

District Court of Appeal of Florida, First District.

February 24, 2009.

Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.

Charles E. Bentley of Boswell & Dunlap, LLP, Bartow, for Appellees.

PER CURIAM.

In this appeal, Claimant argues for reversal of the Judge of Compensation Claims' (JCC) order on three grounds: (1) the JCC erroneously determined she was not entitled to a diagnostic MRI of her right shoulder because her workplace accidents were not the major contributing cause (MCC) of her need for such testing; (2) the JCC's finding that her workplace accidents were not the MCC of her low back injury was not supported by competent, substantial evidence; and (3) the JCC erroneously awarded costs to the Employer/Carrier (E/C) and denied Claimant's request for attorney's fees and costs because Claimant, not the E/C, should have been the prevailing party. We affirm the JCC's decision regarding the MCC of Claimant's low back injury without comment, but reverse and remand the denial of a diagnostic MRI, the award of costs to the E/C, and the denial of attorney's fees and costs to Claimant.

On December 1, 2004, Claimant and a co-worker were transporting tables in the course and scope of their employment using a golf cart and trailer. They stacked the tables on top of the trailer and Claimant rode on top of the stack. When the co-worker drove up an incline, the tables and Claimant slid off and hit the ground. The accident injured Claimant's right shoulder, neck, ear, and low back.

Approximately two months later, on February 4, 2005, Claimant slipped on ice on the floor of the teachers' lounge and fell. Claimant testified her back and arms were still in pain from the December 2004 accident, so it was difficult to isolate exactly what was injured. However, her left wrist was stiff for several days after the fall.

The E/C subsequently authorized treatment with Dr. Band, an occupational medicine physician. Dr. Band testified he attempted to examine Claimant's right shoulder, but it was difficult to make an accurate diagnosis because Claimant was unwilling to abduct or flex the extremity due to significant pain. He ordered an MRI of her neck and x-rays of her right shoulder, which were inconclusive. Ultimately, Dr. Band referred Claimant to an orthopedist to determine the organic cause of her pain.

The E/C authorized Dr. Desai, an orthopedic surgeon, to evaluate Claimant. He recommended she undergo an MRI of the right shoulder to determine whether there was a tear in the rotator cuff tendon. Dr. Desai testified an MRI would help diagnose the etiology of Claimant's right shoulder symptoms. Neither Dr. Band nor Dr. Desai was able to pinpoint the cause of Claimant's right shoulder pain without further testing.

In his final order, the JCC denied medical care, treatment, and further diagnostic testing for Claimant's right shoulder. The JCC rationalized there was no competent, substantial evidence establishing the MCC of her need for treatment and testing was the December 2004 or February 2005 accidents because neither of Claimant's...