Moya v. Trucks & Parts of Tampa, Inc.

• Citation: 130 So.3d 719
• Decision Date: 04 February 2014
• Docket Number: No. 1D13–1334.,1D13–1334.
• Court: Court of Appeal of Florida (US)
• Parties: Amable J. MOYA, Appellant, v. TRUCKS & PARTS OF TAMPA, INC. and Ameritrust Insurance Corporation, Appellees.

130 So.3d 719

Amable J. MOYA, Appellant,

v.TRUCKS & PARTS OF TAMPA, INC. and Ameritrust Insurance Corporation, Appellees.

No. 1D13–1334.

District Court of Appeal of Florida,

First District.

Dec. 20, 2013.

Rehearing Denied Feb. 4, 2014.

Bradley G. Smith of Smith, Feddeler & Smith, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellant.

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

MARSTILLER, J.

Amable J. Moya (“Claimant”) appeals a summary final order denying his Petition for Benefits (“PFB”) seeking authorization for an MRI of his right shoulder. Because Claimant failed to demonstrate existence of a material factual dispute, we affirm the order.

On the date of the accident, Claimant worked as a dismantler in the Employer's salvage department, taking apart and removing equipment from trucks. Claimant filed a PFB seeking medical treatment for asserted repetitive trauma. The Judge of Compensation Claims (“JCC”) rejected Claimant's request for benefits, finding that

the most reasonable interpretation of the medical evidence is that, as of September 19, 2005, Claimant suffered from pre-existing cervical and shoulder problems, in addition to carpal tunnel syndrome. The work-related activities that Claimant engaged in on September 19, 2005 caused temporary aggravations of his cervical and shoulder conditions. This same activity caused a flare-up of Claimant's bilateral carpal tunnel. He reached MMI as of October 24, 2006 for the aggravations of his cervical and shoulder conditions. No further treatment is necessary for these complaints.

The JCC did approve, however, treatment for Claimant's bilateral carpal tunnel syndrome. Claimant did not appeal the portion of the January 30, 2009, order denying his PFB as to the cervical and shoulder conditions.

On December 27, 2012, Claimant filed a PFB seeking “authorization/set-up of an appt. for an MRI of the right shoulder pursuant to the attached recommendation from Dr. Aird the authorized physician.” Attached to the PFB was a September 7, 2012, office note by Dr. Aird stating, in full:

Amable has been experiencing pain in both wrists and numbness of both hands. He also complains of pain in both shoulders worse in the right.

On examination active range of motion of both shoulders was full. Grip strength in the right hand was 57 pounds per square inch and in the left hand 68 per square inch with the Jamar Dynamometer in the third position.

PLAN: The patient was scheduled for an MRI of the right shoulder and will be seen again for follow-up care in one month.

The Employer/Carrier (“E/C”) filed a response denying the request for an MRI and stating:

[T]he JCC ruled in her Order of 1/30/09 that the injured employee had reached MMI with regard to his shoulder complaints and that no further treatment was needed. Dr. Aird is only authorized to treat injured employee's bilateral carpal tunnel complaints.

The E/C subsequently filed a motion for summary final order, asserting, based on the January 30, 2009, order, that res judicata prohibited re-litigation of the issue of Claimant's need for treatment for his right shoulder. Claimant timely filed a response to the E/C's motion, stating only that Dr. Aird, his authorized treating physician, had written a prescription for the MRI, that “Claimant is setting the deposition of Dr. Aird,” and that “This issue is not appropriate for a Summary Final Order.” Claimant made no further factual allegations, and submitted no supporting affidavits or other documents. The JCC entered an order the next day granting the motion for summary final order. Therein, the JCC noted, “The mere fact that Dr. Aird has recently recommended that Claimant undergo an MRI of his right shoulder does not negate the validity of the undersigned's findings relative to Claimant['s] need for further treatment due to his industrial accident.”

We consider de novo whether disposition by summary...