McArthur v. LaVie Care DBA Magnolia Health / Consulate Health Care

Paul T. Terlizzese

JCC Beck (Sarasota)(9-24-19) – Denied continued treatment without apportionment, denied payment of unauthorized bills, granted adjustment of AWW and TPD. Orthopedic surgeon, Dr. Bright opined the claimant had degenerative findings, placed her at MMI with 0% PIR and advised she should seek treatment outside of W.C. Claimant’s one time change, Dr. Lonstein, agreed with Dr. Bright. Claimant’s IME, orthopedic Dr. Kurzner, opined the findings were work related. EMA, Dr. James Shortt, found the work incident was the MCC but attributed 40% to pre-existing conditions based on evidence of degeneration and his experience. The E/C filed a Denial post MMI on the basis that her need for continued treatment was pre-existing. Subsequent to the EMA opinion, the E/C accepted temporary exacerbations of the claimant’s injuries so long as the work incident remained the MCC, subject to 40% apportionment. The claimant objected per Daubert to the EMA’s apportionment testimony. The JCC rejected E/C’s argument that the claimant acquiesced to the EMA’s determination of MCC and apportionment by failing to raise waiver during the EMA hearing as unsupported by the pretrial stipulation or amendments. If the claimant raised this argument, the JCC would have instructed this issue be addressed at the merits hearing. The JCC found the EMA’s testimony reliable and agreed with the E/C’s apportionment argument. As permanent benefits were not at issue, the E/C did not need to present evidence indicating disability attributable to the pre-existing condition or the work incident as only temporary and medical benefits were sought. The claimant argued apportioning benefits created a complex situation for medical billing, requiring percentages of bills charged to W.C. and percentages charged to a separate insurance. The JCC found the harmful consequences that stem from apportionment is an issue for the Legislature. The JCC denied claimant’s Motion to Amend the Pretrial Stipulation to add a waiver defense, arguing the E/C accepted the claim under the 120-day rule and waived its right to deny compensability. The JCC agreed with E/C’s arguments of untimeliness and lack of good cause. The JCC found the E/C never accepted compensability of the claimant’s pre-existing conditions as they provided treatment only for aggravations. She found the E/C still had the right to contest MCC or request apportionment under the 120-rule. The JCC denied payment of medical bills from unauthorized providers as the claimant did not meet her burden under the self-help doctrine when she treated subsequent to the E/C’s denial. The bills were not authenticated nor offered in evidence and even so, none of the authorized physicians agreed with the claimant’s need for this treatment. The JCC increased the AWW to include fringe benefits and granted TPD based on her termination. The E/C argued her lost wages were unrelated to the incident. The JCC found even if the claimant were fired for cause, the E/C failed to allege misconduct or show the claimant refused job offers.
View JCC Merits Order