Locker v. United Pharm. Group Inc, CASE NO. 1D10-0464

• Court: Court of Appeal of Florida (US)
• Writing for the Court: THOMAS, J.
• Parties: JANICE LOCKER, Appellant, v. UNITED PHARMACEUTICAL GROUP, INC., and ZENITH INSURANCE CO., Appellees.
• Docket Number: CASE NO. 1D10-0464
• Decision Date: 29 October 2010

JANICE LOCKER, Appellant,
v.
UNITED PHARMACEUTICAL GROUP, INC.,
and ZENITH INSURANCE CO., Appellees.

CASE NO. 1D10-0464

DISTRICT COURT OF APPEAL
STATE OF FLORIDA
FIRST DISTRICT.

Date of Accident: April 19, 2006
Filed: October 29, 2010

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

An appeal from an order of the Judge of Compensation Claims. Kathryn S. Pecko, Judge.

Scott J. Brook of Scott J. Brook, P.A., Coral Springs, for Appellant.

William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.

THOMAS, J.

In this workers' compensation appeal, Claimant argues the Judge of Compensation (JCC) erred in dismissing her petition for benefits (PFB) on the basis that the claimed benefits were "not in default, nor are they ripe, due and owing." We agree and reverse.

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Claimant filed a PFB seeking authorization for continued treatment for her right shoulder, and attached a prescription detailing the recommended treatment. Dr. Bayliss, the physician prescribing the treatment, had been previously authorized to provide treatment for the right shoulder and was never de-authorized by the Employer/Carrier (E/C). The E/C filed a motion to dismiss the PFB based on the JCC's acceptance of an expert medical advisor's (EMA's) opinion given in a prior proceeding in this matter regarding an earlier filed PFB. E/C argues that because Claimant did not challenge the earlier order, she was not entitled to relitigate the issue, thus, the claims in the current PFB could not be "in default, ripe, due and owing."

In granting the motion to dismiss, the JCC relied on evidence adduced at the earlier hearing on Claimant's claim for authorization of shoulder surgery. In the course of that earlier proceeding, the JCC granted a request for appointment of an EMA to address a medical issue. Following a hearing on that petition, the JCC entered an abbreviated final order that included no findings of fact and simply denied "Claimant's request for authorization of right shoulder surgery." In a ruling letter accompanying the abbreviated final order, the JCC indicated that she accepted the opinion of the EMA that "the incident of 04/19/06 perpetuated an exacerbation of the right shoulder, which was then deemed to be at MMI with a

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zero percent (0%) impairment rating, essentially bringing Ms. Locker back to baseline."

Because the basis for the JCC's dismissal was application of a legal principle, essentially finding the PFB failed to state a legal basis for award of the benefits, our review is de novo. SeeGilbreth v. Genesis Eldercare, 821 So. 2d 1226, 1228 (Fla. 1st DCA 2002) (reviewing de novo JCC's conclusions involving questions of law)....