11-4843 REBECCA ROSE, v. GEICO AND BROADSPIRE

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State: Florida

Court: Florida First District Court

Docket No: 11-4843

Case Date: 06/13/2012

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA REBECCA ROSE, Appellant, v. GEICO and BROADSPIRE, Appellees. _____________________________/ Opinion filed June 13, 2012. An appeal from an order of the Judge of Compensation Claims. Margaret E. Sojourner, Judge. Date of Accident: February 1, 2010. Mark G. Capron of the Law Office of Mark G. Capron, P.A., Lakeland, Richard W. Ervin, III, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant. Michael S. Waranch of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D11-4843

PER CURIAM. In this workers' compensation appeal, claimant seeks review of an order denying the compensability of her claimed repetitive trauma injury and associated benefits. We agree that the Judge of Compensation Claims (JCC) imposed an

improper burden of proof on her, and, for the reasons that follow, reverse the JCC's denial of benefits. The parties were previously before this court, at which time we affirmed the JCC's finding that the statute of limitations had expired regarding claimant's compensable bilateral carpal tunnel syndrome with a 1999 date of accident, and reversed the JCC's finding that claimant sustained a new repetitive trauma injury in 2008. See Broadspire v. Rose, 24 So. 3d 694, 695 (Fla. 1st DCA 2009). Thereafter, claimant filed a new petition for benefits alleging she sustained a new repetitive trauma to her hands, seeking a carpal tunnel release surgery, and assigning February 2010 as the date of the accident. After considering Claimant's testimony and that of each party's independent medical examiner, the JCC denied the claim. The JCC found: the testimony of the claimant's IME physician, Dr. Fiore and that of the EC's IME physician, Dr. Goldsmith are substantially similar. They both diagnose Rose as suffering from carpal tunnel syndrome. They both state that they cannot say that Rose's symptoms now are any different from the symptoms she was suffering in 2007. Dr. Fiore noted that Rose had normal EMG studies done in 2002 and 2003 and an abnormal study in July 2007 when the surgery was recommended. He testified that without additional testing showing a worsening of symptoms there would be no objective findings that would support a change in condition since 2007. Rose has failed to offer any evidence of a change in condition. She has not carried her burden to prove a new accident or injury or an aggravation or exacerbation of a preexisting condition.

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By requiring claimant to offer evidence of a change in condition, even though she was alleging repetitive trauma, the JCC utilized an incorrect legal standard. No change in condition need be shown, given claimant's allegation of subsequent repetitive trauma, because every new exposure to the trauma was a new "accident" for purposes of workers' compensation. Section 440.09(1), Florida Statutes (2009), requires that causation be established by clear and convincing evidence in cases of repetitive exposure. Nothing in these requirements places a burden on a claimant to prove that the condition has changed or somehow worsened. The proper legal standard is a showing, by clear and convincing

evidence, that an "accident" occurred; that is, that "[t]he injury, [and] its occupational cause . . . be established to a reasonable degree of medical certainty, based on objective relevant medical findings."

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