U.S. Block Windows v. Dixon, 1D05-5613.

• Decision Date: 08 November 2006
• Docket Number: No. 1D05-5613.,1D05-5613.
• Parties: U.S. BLOCK WINDOWS and Liberty Mutual Insurance Company, Appellants, v. Wanda DIXON, Appellee.
• Court: Florida District Court of Appeals

943 So.2d 852

U.S. BLOCK WINDOWS and Liberty Mutual Insurance Company, Appellants, v. Wanda DIXON, Appellee.

No. 1D05-5613.

District Court of Appeal of Florida, First District.

November 8, 2006.

Rehearing Denied December 13, 2006.

Mary L. Wakeman, McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellants.

T. Rhett Smith and Teresa E. Liles of T. Rhett Smith, P.A., Pensacola, for Appellee.

PER CURIAM.

The employer/carrier (E/C) appeals the final order of the judge of compensation claims (JCC), granting in part claimant's requested workers' compensation benefits. In this appeal, the E/C argues the following: (1) the JCC's finding of compensability for claimant's left shoulder injury and resulting award of temporary partial disability (TPD) benefits to claimant for the time period August 14, 2004 through April 7, 2005, and award of authorization of an orthopedic physician for treatment of the left shoulder, are precluded by the doctrine of res judicata; (2) in the alternative, the JCC's award of TPD benefits to claimant for the time period August 14, 2004 through April 7, 2005 is not supported by competent substantial evidence; (3) the JCC's award of TPD benefits for August 12, 2005 is not supported by competent substantial evidence; and (4) the JCC's award of temporary total disability (TTD) benefits for the time period April 8, 2005 through May 5, 2005 is based on an arbitrary credibility determination. Because we agree with the E/C's first argument, that the award of TPD benefits for August 14, 2004 through April 7, 2005, and the authorization of an orthopedic surgeon for treatment of claimant's left shoulder, is precluded by the doctrine of res judicata, we reverse these two awards.¹ However, we affirm the JCC's order in all other respects, without further discussion.

BACKGROUND

Claimant worked for the employer, U.S. Block Windows, beginning in 1999. On May 6, 2004, claimant began experiencing right shoulder symptoms. Claimant was treated and returned to work with restrictions. On August 2, 2004, claimant also began complaining of symptoms in her left shoulder. The treating physician examined the left shoulder, but found no objective medical evidence of any abnormality. However, the physician put claimant on work restrictions with regard to both the right and left shoulders.

Claimant stopped working for the employer in September 2004. She filed a petition for benefits requesting temporary indemnity benefits regarding the right shoulder injury. She also filed a petition for benefits requesting temporary indemnity benefits and authorization of an orthopedic surgeon to treat her left shoulder. However, claimant voluntarily dismissed this second petition prior to the merits hearing. On March 30, 2005, a final merits hearing was held. Although claimant had voluntarily dismissed the petition for benefits regarding the left shoulder injury, claimant testified regarding her left shoulder symptoms.

After the hearing, the JCC entered a final order granting TPD benefits for May 24, 2004 through August 6, 2004, and for August 7, 2004 through August 13, 2004. However, the JCC's order denied benefits for the time period August 14, 2004 through March 30, 2005. In denying benefits for this time period, the JCC found that, to the extent that claimant was alleging benefits based on the left shoulder injury, claimant failed to prove she was entitled to TPD benefits. Claimant had failed to prove the occupational cause of any injury to the left shoulder, had failed to show objective medical findings supporting a disability, and had failed to prove that the work for the employer was the major contributing cause of the injury.

Claimant filed a motion for clarification arguing it was inappropriate for the JCC to make findings on claimant's left shoulder injury. The JCC granted the motion for clarification, and provided that it was necessary to address the left shoulder injury because claimant described her left shoulder complaints at trial. Additionally, the JCC noted that it was not only appropriate, but critical to address whether claimant as of March 30, 2005 demonstrated a compensable left shoulder injury. The JCC entered an amended order on May 6, 2005. Claimant appealed the final compensation order, and this court affirmed without an opinion. See Dixon v. U.S. Block Windows, 930 So.2d 623 (Fla. 1st DCA 2006).

Before the hearing in the first case, claimant filed two more petitions for benefits regarding the left shoulder injury. These petitions were filed on March 16, 2005, and March 22, 2005. On April 8, 2005, claimant had surgery on her right shoulder. Claimant also filed a petition for benefits on May 3, 2005 requesting temporary indemnity benefits from the date of the surgery and continuing.

As a result of an independent medical examination (IME) with Dr. Richard Sellers, claimant underwent an MRI of her left shoulder on June 16, 2005. The radiologist opined that there appeared to be "a subtle SLAP tear" in the left shoulder, which is where a bicep tendon pulls loose from its anchor inside of the shoulder joint. Claimant was seen by Dr. William Smith on August 1, 2005 for an IME of the left shoulder. After reviewing the MRI report and...