Pearson v. Paradise Ford, No. 1D05-0957.

• Court: Florida District Court of Appeals
• Writing for the Court: Van Nortwick
• Citation: 951 So.2d 12
• Parties: Roy PEARSON, Appellant, v. PARADISE FORD and Comp Options Insurance; Budget Group, Inc. and CNA ClaimPlus, Appellees.
• Docket Number: No. 1D05-0957.
• Decision Date: 05 February 2007

951 So.2d 12 Roy PEARSON, Appellant,
v.
PARADISE FORD and Comp Options Insurance; Budget Group, Inc. and CNA ClaimPlus, Appellees. No. 1D05-0957. District Court of Appeal of Florida, First District. February 5, 2007. Rehearing Denied March 16, 2007.

[951 So.2d 13]

Alfred J. Hilado, Orlando, and Bill McCabe, Longwood, for Appellant.

Jeffrey W. Golovin of Kelley, Kronenberg, Kelley, Gilmartin, Fichtel & Wander, P.A., West Palm Beach, and Clint M. Lavender, Orlando, for Appellees Paradise Ford and Comp Options Insurance.

James F. Kidd and C. Jason Grundorf of Moran & Shams, P.A., Orlando, for Appellees Budget Group, Inc. and CNA Claim-Plus.

VAN NORTWICK, J.

This workers' compensation appeal involves two employment accidents, the first in 1999 and the second in 2004, each of which resulted in an injury to the back of claimant, Roy Pearson, and both of which combined to cause his current need for compensation benefits. Based upon medical evidence, the Judge of Compensation Claims (JCC) determined that 80% of claimant's condition was related to the 1999 accident and 20% was related to the 2004 accident. The JCC ruled, however, that, since the 2004 accident was not greater than 50% responsible for claimant's condition, that accident was not compensable pursuant to the 2003 amendments to section 440.09(1)(b), Florida Statutes (2003), see Chapter 2003-412 § 6 at 3876, Laws of Florida, and that, therefore, the employer/carrier at risk for the 2004 accident, appellees Paradise Ford and Comp Options Insurance (Paradise Ford/Comp Options), could not be held responsible for any contribution to medical or indemnity benefits due the claimant. The JCC further determined that the employer/carrier at risk for the 1999 accident, appellees Budget Group and CNA ClaimPlus (Budget Group/CNA), were required to pay claimant 80% of the benefits due for the period May 3, 2004, through November 12, 2004. We affirm the JCC's allocation of responsibility between the two employer/carriers. Because we conclude that section 440.09(1)(b) does not apply here, we reverse the JCC's ruling that section 440.09(1)(b) absolves Paradise Ford/Comp

951 So.2d 14

Options of any responsibility for claimant's workers' compensation benefits. Finally, we reverse the JCC's determination that benefits were due for the period ending November 12, 2004, rather than December 8, 2004, the date of the merits hearing in this case, because the evidence is uncontradicted that claimant followed the advice of his treating physician and was unaware that his non-work status was changed before the merits hearing. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Claimant has worked as an automobile mechanic at a Ford dealership in Cocoa since 1988. He was employed by Budget Group on August 13, 1999, when he suffered a back injury lifting a wheel and tire. He was treated conservatively by his treating physician, Dr. Glenn, and returned to work. He continued to see Dr. Glenn for ongoing low back pain and right lower extremity pain. He was able to maintain his employment by taking anti-inflammatory medication and muscle relaxers. Although Dr. Glenn recommended a facet block, it was not performed.

In August 2002, the ownership of the dealership was transferred from Budget Group to Paradise Ford and the carrier at risk became Comp Options Insurance. On April 26, 2004, while working for Paradise Ford, claimant injured his back when he attempted to move a passenger seat. He felt immediate and sharp low back pain as well as numbness and tingling down both of his lower extremities. Paradise Ford/ Comp Options initially provided treatment, but then controverted claimant's accident on the ground that his condition was preexisting. Dr. Glenn put claimant in an off-work status and scheduled a facet block. Budget Group/CNA paid two of Dr. Glenn's bills, but did not authorize any medical treatment thereafter. The facet block was not performed. Neither employer/carrier paid claimant indemnity benefits.

Claimant requested and received an IME by Dr. Gregory Munson, an orthopedist, on October 11, 2004. Upon examination, Dr. Munson did not find any neurological deficits or any objective findings of radiculopathy or nerve root compression. Dr. Munson opined that claimant should be kept off work at least until a new MRI was obtained. The MRI was performed on November 12, 2004. Dr. Munson compared this MRI with two MRI studies which were done in October 2003, and opined that the new MRI did not show a worsening of claimant's prior back condition. While there was some indication that an October 31, 2003 MRI revealed a possible disk herniation, Dr. Munson reported that he did not see that condition on the 2004 MRI. He attributed 80% to 90% of claimant's current condition to his 1999 accident, and 10% to 20% to the 2004 accident. Dr. Glenn concurred that the major contributing cause of claimant's need for medical treatment after April 26, 2004 was the 1999 accident.

Claimant filed petitions against Budget Group/CNA and Paradise Ford/Comp Options. Budget Group/CNA controverted, contending that the 2004 accident was an intervening cause and major contributor to claimant's condition and that, therefore, Paradise Ford/Comp Options is responsible for the benefits due to the claimant. Paradise Ford/Comp Options also controverted, arguing that claimant's disability was due to his preexisting condition and not the 2004 accident. The merits hearing was held on December 8, 2004.

The JCC found that "for the 1999 industrial accident . . . the claimant carried his necessary burden of proof that he had an accident arising out of and in the course of [sic] scope of his employment." Further,

951 So.2d 15

the JCC determined that temporary total disability (TTD) benefits should be paid only through November 12, 2004, the date of the MRI recommended by Dr. Munson, because there was no objective medical evidence which would entitle claimant to benefits thereafter. The JCC accepted Dr. Munson's opinion and, based on this opinion, found that 80% of claimant's condition was related to the 1999 accident and 20% was related to the 2004 accident. Based on this finding, he ruled that under the post-October 1, 2003 revisions to section 440.09(1)(b),¹ Paradise Ford/Comp Options was not liable for any TTD benefits for the 2004 accident because the 2004 accident was not more than 50% responsible for the claimant's need for treatment and benefits.

The JCC found that Budget Group/CNA was liable to pay claimant 80% of the TTD benefits for the period May 3, 2004 through November 12, 2004, and 80% of the claimant's medical treatment until claimant returned to his pre-April 26, 2004 condition. The JCC ruled that, since the 2004 accident was not compensable under section 440.09(1)(b), neither employer/carrier was responsible for 20% of the incurred TTD benefits or medical expenses. The JCC explained:

Although this Court finds that there is evidence that the April 26, 2004, accident contributed to...