Varricchio v. St. Lucie Cnty. Clerk of Courts, 1D17-3229

• Court: Court of Appeal of Florida (US)
• Writing for the Court: M.K. Thomas, J.
• Citation: 271 So.3d 1206
• Parties: Sharon VARRICCHIO, Appellant, v. ST. LUCIE COUNTY CLERK OF COURTS and Ascension Insurance, Appellees.
• Docket Number: No. 1D17-3229,1D17-3229
• Decision Date: 29 April 2019

271 So.3d 1206

Sharon VARRICCHIO, Appellant,
v.
ST. LUCIE COUNTY CLERK OF COURTS and Ascension Insurance, Appellees.

No. 1D17-3229

District Court of Appeal of Florida, First District.

April 29, 2019
Rehearing Denied May 29, 2019

Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.

Gary M. Schloss of Hayes, Schloss & Alcocer, P.A., West Palm Beach, for Appellees.

M.K. Thomas, J.

271 So.3d 1208

Sharon Varricchio ("Claimant") appeals a workers' compensation order denying her claim for temporary disability benefits. We affirm but write to address retroactive assignment of maximum medical improvement ("MMI") and the claim that section 440.13(4)(c), Florida Statutes (2013), allowing ex parte conferences, violates the privacy clause of the Florida Constitution.

I. Facts

In 2013, the Claimant injured her back moving boxes. The E/C accepted compensability and authorized medical care with two doctors—Drs. McCollom, a neurosurgeon, and Weidenbaum, a pain management physician. Dr. McCollom placed the Claimant at neurosurgical MMI and released her care to Dr. Weidenbaum.

Dr. Weidenbaum performed a lumbar rhizotomy¹ in June 2015. The operative report detailed: "The patient was instructed to call us for follow-up within 2 weeks' time." However, the Claimant did not return to see Dr. Weidenbaum for almost a year. On that return visit, the Claimant reported 100% pain relief following the rhizotomy until approximately two weeks prior to her return. In completing the DWC-25 form,² Dr. Weidenbaum indicated that the Claimant had reached MMI but did not specify the specific MMI date in the field provided on the form. However, due to continued pain complaints, the Claimant underwent a second rhizotomy shortly thereafter. She returned for a follow-up visit and reported no relief from the procedure. Dr. Weidenbaum indicated on the DWC-25 form that the Claimant was at MMI but again did not specify a date or address permanent impairment rating.

On November 30, 2016, the Claimant returned to Dr. Weidenbaum and reported no improvement. Physical therapy and medications were prescribed. At this visit, Dr. Weidenbaum fully completed the DWC-25 form to include a specific MMI date to correspond with the date of the visit with a 5% permanent impairment rating and no work restrictions. Previously, he had assigned essentially light duty restrictions.

Upon receiving the impairment rating, the E/C began paying permanent impairment benefits ("IBs") pursuant to section 440.15(3), Florida Statutes (2013). The E/C then filed the required DWC-4 form³ giving notice of the Claimant's change of status and identifying the MMI date as November 30, 2016.

The Claimant filed a petition for benefits (PFB) seeking temporary total disability (TTD) and/or temporary partial disability (TPD) benefits from September 26, 2013, and continuing. The E/C asserted that no

271 So.3d 1209

TTD/TPD benefits were due as the Claimant had reached MMI, among other defenses.

At deposition, Dr. Weidenbaum testified that the Claimant was likely at MMI after the initial rhizotomy performed on June 10, 2015 and that he would have placed the Claimant at MMI sooner had she, as instructed, returned within a few weeks after the procedure and reported no pain. According to Dr. Weidenbaum, the second rhizotomy would not necessarily change the MMI date as exacerbations of pain are anticipated. He classified the medication and physical therapy as palliative in nature and, therefore, did not affect MMI status. Dr. Weidenbaum identified questionnaires he completed and signed in April and June 2017 (the latter at an ex parte conference with an E/C representative), in which he retroactively assigned the Claimant's MMI date to be June 30, 2015, and that the Claimant was capable of performing her job duties.

The Claimant testified at the merits hearing. She denied ever being advised, orally or in writing, by Dr. Weidenbaum or his staff that she was to return to him two weeks after the rhizotomy. Furthermore, she denied being provided copies of the DWC-25 forms in which Dr. Weidenbaum had placed her at MMI. She learned she was at MMI in November 2016 when the claims adjuster advised her that IBs were being initiated.

Following a merits hearing, the JCC entered a Final Order framing the determinative issue as "the correct MMI date." Because he concluded the Claimant reached MMI on June 30, 2015, the claim for TTD/TPD benefits was denied. The Claimant argues that the JCC erred when he accepted Dr. Weidenbaum's retroactive MMI date of June 30, 2015, thus, precluding an award of TTD/TPD benefits for the claimed time period from November 5, 2015 (date of termination from E/C), through November 30, 2016, the date the Claimant argues she reached MMI.

II. Analysis

Claim for TTD/TPD

To the extent an issue turns on resolution of the facts, the standard of review is competent, substantial evidence ("CSE"); to the extent it involves an interpretation of law, the standard is de novo. See Benniefield v. City of Lakeland , 109 So.3d 1288, 1290 (Fla. 1st DCA 2013).

In a workers' compensation proceeding, the JCC is the finder of fact who "may accept or reject an expert's testimony, or give it the weight deserved considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all other evidence in the case." White v. Bass Pro...