Levy Cnty. Transit/Gallagher Bassett Servs. v. Kokenzie, CASE NO. 1D16–4817

• Decision Date: 14 June 2017
• Docket Number: CASE NO. 1D16–4817
• Citation: 220 So.3d 1251
• Parties: LEVY COUNTY TRANSIT/GALLAGHER BASSETT SERVICES, Appellants, v. Antoinette KOKENZIE, Appellee.
• Court: Florida District Court of Appeals

220 So.3d 1251

LEVY COUNTY TRANSIT/GALLAGHER BASSETT SERVICES, Appellants,

v.Antoinette KOKENZIE, Appellee.

CASE NO. 1D16–4817

District Court of Appeal of Florida, First District.

Opinion filed June 14, 2017

Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellants.

Mark N. Tipton and Daniel L. Hightower of Daniel L. Hightower, P.A., Ocala, for Appellee.

B.L. THOMAS, J.

In this workers' compensation case, the Employer/Carrier challenge an order awarding Claimant temporary partial disability benefits and rejecting the affirmative defense of misrepresentation under paragraphs 440.09(4)(a) and 440.105(4)(b), Florida Statutes (2014). Because the record contains competent, substantial evidence supporting the Judge of Compensation Claims' conclusion that Claimant did not make intentional misrepresentations for the purpose of obtaining workers' compensation benefits, we affirm that ruling. But we reverse and remand the temporary partial disability award, because the determination that the workplace injury is the major contributing cause of Claimant's disability and need for medical care is not based on competent, substantial evidence.

Claimant reported that she injured her neck while transporting a wheelchair-bound passenger on March 13, 2015. The Employer/Carrier accepted compensability of the workplace injury and authorized medical care with Dr. Trimble, an orthopedic surgeon. Dr. Trimble ultimately opined that the major contributing cause of Claimant's neck complaints is preexisting degeneration of the cervical spine

, not the workplace injury. Dr. Lowell, another orthopedic surgeon, later provided Claimant's medical care and recommended surgery of the cervical spine.

Claimant filed a claim for temporary partial disability benefits in light of Dr. Lowell's surgical recommendation. The Employer/Carrier defended the claim, in part, on the ground that the workplace injury is not the major contributing cause of Claimant's neck condition, based on Dr. Trimble's expert opinion and the expert opinion of Dr. Rumana, the Employer/Carrier's independent medical examiner.

Under subsection 440.09(1), Florida Statutes (2014), an employer/carrier is responsible for providing benefits only where the accidental compensable injury is the major contributing cause of any resulting injuries. Thus, Claimant bore the burden of persuasion to prove that the compensable workplace injury is the major contributing cause for the need for the requested benefits. See Babahmetovic v. Scan Design Fla., Inc. , 176 So.3d 1006, 1008 (Fla. 1st DCA 2015) ; Checkers Restaurant v. Wiethoff , 925 So.2d 348, 350 (Fla. 1st DCA 2006). In accordance with the statute, a major contributing cause is the cause that is more than 50% responsible for the injury, when compared to all other causes combined for which treatment or benefits are sought. § 440.09(1), Fla. Stat. (2014)....