08-2480 JERRY JENNINGS v. NATIONAL LINEN SERVICES AND GALLAGHER BASSETT SERVICES, INC.,

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State: Florida

Court: Florida First District Court

Docket No: 08-2480

Case Date: 12/05/2008

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

JERRY JENNINGS, Appellant, v. NATIONAL LINEN SERVICES and GALLAGHER BASSETT SERVICES, INC., Appellees. _____________________________/ Opinion filed December 5, 2008.

CASE NO. 1D08-2480

An appeal from an order of the Judge of Compensation Claims. Nolan S. Winn, Judge. Date of Accident: September 19, 1997. Douglas F. Miller of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant. Mary Cruikshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees. PER CURIAM. Claimant challenges an order of the Judge of Compensation Claims (JCC), which grants his claim for authorization and provision of a physiatrist, but denies attorney's fees and costs. Pursuant to section 440.34(3)(a), Florida Statutes (1997), we affirm.

Background Claimant sustained injuries in a workplace accident and is receiving permanent total disability benefits from the Employer Carrier (E/C). As a result, Claimant was under the care of pain management physician Dr. Barangan. Four months into his treatment of Claimant, Dr. Barangan indicated he was discontinuing the pain management area of his practice and recommended Claimant's continued care be transferred to a physiatrist. On July 12, 2007,

Claimant's counsel informed the E/C of Dr. Barangan's recommendation and requested authorization of a physiatrist. The E/C authorized Claimant's request and began its attempts to locate a physiatrist. On November 6, 2007, Claimant filed a PFB seeking "authorization and provision of an evaluation with a physiatrist . . . as prescribed by Dr. Branagan . . . and as denied/refused by the employer/carrier." At the time of hearing, the E/C had not located a physiatrist to take over Claimant's care and treatment. The E/C had, however, attempted to schedule appointments with at least five physiatrists, four of whom declined to treat Claimant after reviewing his records.1 Despite difficulties in locating a physiatrist, the E/C continued to authorize and Dr. Barangan continued to provide Claimant with such care and treatment as the nature of his injuries required.
1

It is unclear why the parties did not use the fifth physiatrist. 2

Ultimately, the JCC entered an order granting Claimant's request for authorization and provision of an evaluation with a physiatrist, but denying his request for attorney's fees. In its denial of attorney's fees, the JCC reasoned that "the intervention and efforts of Claimant's attorney have secured no benefit not otherwise being provided Claimant by the E/C." Analysis An E/C has an affirmative duty to furnish all "remedial treatment, care, and attendance" necessary to treat an employee's workplace injury.

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