Dayco Products v. Rue, 95-3507

• Decision Date: 09 July 1996
• Docket Number: No. 95-3507,95-3507
• Citation: 676 So.2d 58
• Parties: 21 Fla. L. Weekly D1606 DAYCO PRODUCTS & Crawford & Company, Appellants, v. Billy L. RUE, Appellee.
• Court: Florida District Court of Appeals

Page 58

676 So.2d 58

21 Fla. L. Weekly D1606

DAYCO PRODUCTS & Crawford & Company, Appellants, v. Billy L. RUE, Appellee.

No. 95-3507.

District Court of Appeal of Florida,

First District.

July 9, 1996.

David J. Lonigro of Haas, Arend, Ramey, Worman, Biek, Prospect, Siegel & Diamond, Tampa, for appellant.

Michael Staley, Ocala, for appellee.

KAHN, Judge.

In this workers' compensation case, the Judge of Compensation Claims (JCC) granted relief under the emergency conference provision of the 1994 Workers' Compensation Act, Section 440.25(4)(h), Florida Statutes (Supp.1994). We reverse because the record contains no competent substantial evidence, and the order contains no sufficient findings, to support the statutory predicate of a "bona fide emergency."

Claimant Billy Rue alleges that on July 20, 1994, while in the course of his employment with Dayco Products, he bent over to pick up some material and felt a pop or snap in his back. Claimant continued to work until September 1, 1994 when he saw Dr. Mario Medero who found no objective sign of pathology, but ordered an MRI based upon Mr. Rue's subjective complaints of pain. On October 3, 1994, claimant saw Dr. Wagdi Faris, an orthopedist. This doctor had operated on Mr. Rue in 1987 for a protruding disk at L5-S1. Dr. Faris suspected a herniated disk at L5-S1, but testified on deposition that Mr. Rue's condition could be the result of scar tissue related to a prior back injury. Dr. Faris reviewed the MRI films ordered by Dr. Medero, but found them inconclusive. According to Dr. Faris, a conclusive diagnosis would have to await a myelogram and a post-myelogram CT scan. Dr. Faris stated that these tests could lead to a determination of whether surgery was indicated. A report prepared by Dr. Faris on October 3, 1994 stated, "there is no guarantee that (surgery) will help him."

Dr. Medero testified by deposition that, "theoretically a delay in treatment of this type of lesion could worsen his prognosis and the longer you wait the worse the prognosis could become." Dr. Medero went on, "and the reason I qualify that with could become is because that patient can in fact improve with delay.... So it's not a medical certainty that the patient is going to worsen...." In this particular case, Dr. Medero found no objective changes in claimant's condition, but did note "the patient's complaints of pain have worsened."

On June 8, 1995 claimant, through counsel, served his motion for emergency hearing. In its entirety the motion made the following allegations:

1. Claimant's counsel took the deposition of Dr. Wagdi Faris May 22, 1995, attached as Exhibit "A".

2. Dr. Wagdi Faris has recommended that the Claimant undergo a myelogram and post-myelogram CT Scan to make a conclusive decision about the presence of a disc herniation or not and possible surgery.

3. Conrad Bouchard at Crawford & Company has denied authorization for these tests and possible surgery since October 7, 1994.

4. Dr. Faris has opined that the Claimant has been unable to work since at least September, 1994 until at least such time as Mr. Rue has the tests and/or surgery done.

5. Carrier has denied all requests for Temporary Total Disability.

The JCC convened the emergency hearing on July 25, 1995.

At the hearing, claimant sought temporary total disability benefits and surgery and diagnostic tests by Dr. Faris. The employer/carrier argued from the outset that the JCC should not hear the case because no emergency existed. Mr. Rue testified that neither he nor his wife had any income. He had not looked for work, had not applied for unemployment compensation and had not applied for Social Security disability benefits. Mr. Rue's deposition, submitted into evidence at the hearing, also indicated he had no income in his household. His wife is unable to work because she has also had an injury. Mr. and Mrs. Rue have owned their own home in Ocala for eleven years and have two adult children. He described his physical complaints resulting from the accident as sharp pains in his left buttock, leg and foot, and occasional numbness of his left leg. According to Mr. Rue, no other part of his body is bothering him.

In the order now on review, the JCC found "the suspension of all benefits created a situation in which [claimant's] health, safety and welfare were jeopardized. He has no medical care authorized by the E/C/SA, no wages or benefits coming into the family on a regular basis from any source, and a medical condition which may worsen if no treatment is provided." The JCC awarded temporary total disability benefits from September 1, 1994 through the date of the hearing and also authorized Dr. Faris to provide continuing medical care.

In the extensive revisions to our Workers' Compensation Act, effective January 1, 1994, the Legislature added to the Act's requirements a somewhat detailed pre-petition and post-petition procedure. Now, in the typical workers' compensation matter, an employee may not file a petition requesting benefits unless the employee has exhausted all preclaim procedures for informal dispute resolution. § 440.191(2)(a), Fla. Stat. (Supp.1994). In order to initiate the informal dispute resolution procedures, the employee must request the assistance of the Employee Assistance and Ombudsman Office of the Division of Workers' Compensation. The office then has thirty (30) days to assist the employee in resolving the dispute. § 440.191(2)(d), Fla. Stat. (Supp.1994). If the dispute is not resolved, the employee may file a petition which must on its face specifically identify or itemize the matters set out in section 440.192(2), Fla. Stat. (Supp.1994). If a petition does not meet the...