07-5234 GALLAGHER BASSETT SERVICES- ORLANDO AND DELTA HEALTH GROUP d/b/a WINDSOR MANOR v. BILLIE GENE MATHIS

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State: Florida

Court: Florida First District Court

Docket No: 07-5234

Case Date: 09/22/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

GALLAGHER BASSETT SERVICES - ORLANDO AND DELTA HEALTH GROUP d/b/a WINDSOR MANOR, Appellants, v. BILLIE GENE MATHIS, Appellee. _____________________________/

CASE NO. 1D07-5234

Opinion filed September 22, 2008. An appeal from an order of the Judge of Compensation Claims. Ivy C. Harris, Judge. William H. Rogner and W. Rogers Turner, Jr., of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants. David P. Dearing, Jacksonville, for Appellee.

PER CURIAM. The employer/carrier (E/C) appeal a final order of the Judge of Compensation Claims (JCC) awarding medical and indemnity benefits to the appellee, Billie Gene

Mathis (Mathis), insofar as the award authorized benefits and further evaluation and treatment of Mathis' cervical (neck) condition. E/C do not challenge the

compensability of Mathis' shoulder injury and Dr. Kilgore's opinion that the August 13, 2006, industrial accident is the major contributing cause (MCC) of Mathis' shoulder condition. Because no competent, substantial medical evidence supports the JCC's conclusion that the industrial accident is the MCC of Mathis' neck condition, we are constrained to reverse that portion of the compensation order. We affirm the compensation order in all other respects. On August 13, 2006, Mathis was employed as a certified nursing assistant by a nursing home when she tried to lift an elderly, heavier resident from a chair. Allegedly, she sensed a jerk or snap and immediately experienced sharp right arm, right shoulder, and neck pain. Mathis completed her night shift and reported to work the next day for her regular eight-hour shift, but she was hurting. After completing the August 14 shift, Mathis was physically unable to return to work again due to her injuries. It is well-documented that Mathis suffered arthritis and neck, right shoulder, and right arm pain consistently for at least 10 months before the industrial accident. On August 17, 2006, Mathis saw Dr. Restea, who took her off work. According to the testimony of Mathis' husband and the factual testimony of Dr. Shiriaeva (Mathis' personal primary physician) and Dr. Restea, Mathis reported significantly increased -2-

symptoms of pain and swelling in her neck, right arm, and right shoulder following the industrial accident.1 An MRI of the right shoulder was performed on August 31, 2006. An MRI of the cervical spine was taken on September 1, 2006. E/C's independent medical examiner (I.M.E.), board-certified orthopedic surgeon Dr. Rogozinski, saw Mathis on March 19, 2007. Mathis' I.M.E. is board-certified neurologist Dr. Kilgore, who saw her on April 12, 2007. The cervical MRI indicated neck problems. Mathis filed a petition for benefits seeking medical care, past-due indemnity benefits, penalties, interest, costs, and attorney's fees. E/C defended on the grounds, inter alia, that no accident or injury had arisen out of or in the course and scope of employment; that no timely notice of the accident was given; that the industrial accident was not the MCC of Mathis' conditions, need for treatment, or disability, especially relating to the neck; that no temporary total disability (TTD) or temporary partial disability (TPD) benefits were due or owing; that Mathis' wage loss was not causally related to the industrial accident; that no medical evidence substantiated disability; and that no penalties, interest, costs, or attorney's fees were due or owing. E/C denied compensability,

The testimony of Drs. Shiriaeva and Restea was considered for factual purposes only, not for medical opinion purposes. -3-

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alleging the medical conditions at issue are all pre-existing. Specifically citing the deposition testimony of Dr. Kilgore, the JCC determined that Mathis' ability to work is significantly restricted, that E/C failed to show that they made any reasonable effort to accommodate these restrictions, and that Mathis is entitled to TPD benefits as a matter of law from August 15, 2006, through the date (September 7, 2007) of the final order. The JCC found that Mathis had satisfied the statutory reporting requirement for work-related injuries. The JCC awarded TPD benefits plus penalties, interest, costs, and attorney's fees, and authorization of an appropriate physician to evaluate and treat Mathis. In pertinent part, E/C's motion for rehearing asserted that no competent, substantial medical evidence supports the conclusion that the industrial accident is the MCC of Mathis' present neck condition. Upon the denial of their motion for rehearing, E/C filed this appeal. The JCC's factual findings are presumed correct and are reviewed for competent, substantial evidence. See Trujillo v. S. Wine & Spirits, 525 So. 2d 481, 483 (Fla. 1st DCA 1988); Rinker Materials Corp. v. Hill, 471 So. 2d 119, 120 (Fla. 1st DCA 1985). E/C do not challenge the compensability of the shoulder injury and Dr. Kilgore's opinion that the industrial accident is the MCC of Mathis' shoulder condition. The only issue on appeal is the compensability of Mathis' cervical condition. E/C question whether competent, substantial medical evidence supports -4-

the JCC's factual findings relating to Mathis' compensable neck injuries: As for the medical opinion testimony, I accept the testimony of Dr. Kilgore over Dr. Rogozinski with regard to diagnosis and causation. Dr. Kilgore testified that after examination of the claimant and review of her past medical records, including MRI reports made before August 13, 2006 [the date of the industrial accident], it was his medical opinion within a reasonable degree of medical certainty that Mrs. Mathis suffered a right rotator cuff tear and a significant exacerbation of her preexisting cervical degeneration resulting in greater pain and new radiculopathy in her right upper extremity. Because the rotator cuff tear and right upper extremity radiculopathy occurred in temporal association with the lifting of the resident as described by Mrs. Mathis, Dr. Kilgore opined that this event was the major contributing cause of her present condition. He also opined that further diagnostic studies and treatment would be necessary to determine whether there is additional cervical disc injury following the work accident, and whether there is combined involvement between the neck, shoulder and arm conditions. The shoulder and neck MRIs showed a 95% supraspinatus tear2 and two-level disc herniations in the neck at C5-6 and C6-7 with some disc extrusion, by report. Dr. Kilgore testified that Mathis had continuous arm pain that required analgesics daily. She was not actively working. A spinal examination revealed a loss of rotation in the neck and spasm and cording of the muscles in the posterior cervical and inner scapular area. Mathis' low back examination was normal. Dr. Kilgore's diagnostic

impression was a right rotator cuff tear, almost complete cervical radiculopathy, right
2

The rotator cuff comprises a muscle group that comes from the shoulder and from the scapula (shoulder blade) and inserts to hold the shoulder or the arm to the shoulder socket. The supraspinatus muscle is one of those muscles. Mathis' shoulder tear injury involved the tendon insertion of that muscle to bone. -5-

possible, and C5-6 and C6-7 disc herniations with underlying cervical spondylosis. Dr. Kilgore was asked whether he had an opinion (based on his examination, the medical records, and the deposition testimony of Dr. Shiriaeva) as to whether Mathis' shoulder injury is "directly related" to the industrial accident injury described by Mathis. Over an objection, Dr. Kilgore answered: I do have an opinion, and that opinion is that the shoulder injury and rotator cuff tear occurred in temporal association with the lifting of the patient that she described and was causative in the shoulder pain developing. Next, Dr. Kilgore was asked whether the industrial accident is the MCC of Mathis' shoulder condition. Over another objection, the doctor opined affirmatively. Dr. Kilgore was asked what medical significance he would ascribe to the history given to Dr. Shiriaeva, and given by Dr. Shiriaeva to Dr. Kilgore. Over a vagueness objection, Dr. Kilgore answered: The history that the patient gave me and the history that she gave Dr. Shiriaeva were pretty much the same, that she had no shoulder complaints, that she was attempting to mobilize a much larger patient; the patient was having difficulty in getting up, and it required three or four attempts, which this heavy patient falling back into the bed each time she attempted to lift him up. That caused her to develop the right shoulder and neck pain, and over the ensuing hours, that pain was accompanied by visible swelling and limitations in motion of the joint area where she was symptomatic. And those findings were visibly apparent to the primary care physician when the initial examination occurred the following day. -6-

So I think the temporal profile, the objective signs of swelling and limited mobility, were all consistent with an acute injury in that area. Dr. Kilgore opined that Mathis needs orthopedic assessment for therapy and, if that does not alleviate her pain, she needs a surgical correction of the shoulder tear. At that point in the deposition, Mathis' attorney asked the all-important question: "Are you able to testify, with any medical certainty, with regard to whether any of her cervical problems may relate to this on-the-job injury?" Dr. Kilgore answered: Historically, she reported radiating pains and paresthesias in the right arm, which are consistent with the disc being symptomatic. She had preexistent neck and disc problems. The difficulty I have is, not having seen previous records, I don't know how to quantify what's present now and what preexisted. The way to do that would be to do a neurophysiologic examination, looking for acute denervative changes that would help you. And you can actually tell acute versus chronic nerve root compression by neurophysiologic examination. The timing of this now is - - it's almost a year, so we've probably - we're getting out to the area where it's going to be difficult to tell what's new and old except my medical records. The direct examination of Dr. Kilgore concluded with those inconclusive answers relating to the neck condition. examination: Q. Are you comfortable in saying that there is an element of a -7The following question was asked on cross-

preexisting injury or condition relating to this lady's neck and right shoulder? A. I think that there's a preexistent condition relating to her neck. I don't think that the pain that was described or the descriptive terminology in the medical records supports that it was of a shoulder origin. I think it was more likely of a cervical origin. Dr. Kilgore declined to defer to Dr. Rogozinski's opinions regarding causation and the need for any type of treatment related to the industrial accident. Later on crossexamination, the following questioning occurred: Q. But the claimant did not tell you about any of these prior right shoulder problems, so you didn't have an opportunity to ask her if what was going on before this accident was different than what she's experiencing now, correct? A. I assumed, based upon the history that I got, that the primary shoulder pain that she was having was different. It was accompanied by acute changes of injury with swelling and immobility, none of which she had previously by her history or I would have written it down. And I know about the neck from the previous medical records. The only thing I can't tell you is what part this injury played in terms of worsening the cervical disc symptomatology. I can't apportion that out because the medical records that I've seen up to this juncture are inadequate to do that. Q. So it's your testimony that, even though she did not report any prior right shoulder problems, there's right shoulder complaints in the past medical records, but you don't feel that those are the same type of complaints that are the complaints that she's presenting now? A. You're picking shoulder out exclusively and asking me about shoulder. That's not what the medical record says. The medical records -8-

says neck and shoulder and arm and back. People who injure their shoulder complain of shoulder pain. She didn't come in and say: My shoulder hurts. She came in and complained: My neck hurts; my shoulder hurts; my arm hurts. And that constellation of symptoms, to me, represents more likely a cervical than a shoulder source. Q. Are you of the opinion that any preexisting condition was going on with her shoulder that affects the current symptomatology? A. I can't extract that from the medical record independent of the neck. Q. Are you giving an opinion that her neck pain or problems are causally related to this reported accident? A. As I told you, I can't quantify whether the neck pain was exacerbated by this accident or not because she had neck and arm symptoms preexisting this accident, but they're poorly quantified in the record. She has them after this accident and really isn't complaining very much of anything different to make a characterization possible. Q. Is there any neurological element to her shoulder injury that you're describing? A. There could be some referred pain from the disc. It's the appropriate level to cause referred shoulder pain, but it wouldn't cause limits in range of motion of the shoulder joint, and it wouldn't cause acute swelling in the shoulder joint. That's what makes it difficult to separate out the cervical from the primary shoulder. All of Dr. Kilgore's answers were given within a reasonable degree of medical certainty. Given this testimony of Dr. Kilgore, E/C convincingly argue that no -9-

medical competent, substantial evidence supports the JCC's conclusion that the industrial accident is the MCC of Mathis' neck condition. See

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