Celeide v. Treasure Isle Care Center / Gallagher Bassett Services, Inc.
Andrew R. Borah
JCC Havers (Miami)(1-17-18) – Misrepresentation Defense; Claims denied with prejudice; PFB’s dismissed with prejudice. Claimant was a CNA at a nursing home for 33 years. Claimant alleged that she was pushed down to the ground while attempting to bathe a resident. E/C argued that Claimant was not pushed down by a resident, but fainted. E/C authorized Dr. Krestow, who placed Claimant at MMI with a 0% PIR. Shortly after being placed at MMI, the claimant was discharged by the employer for filing a false description of her accident. Claimant filed an additional PFB after being placed at MMI and terminated by employer. E/C asserted a misrepresentation defense. Claimant died 11 months after filing the additional PFB, and all active PFB’s were dismissed as a result. Claimant’s estate filed another PFB seeking TPD and medical costs, but attached no billing information. E/C did not assert a misrepresentation defense to the new PFB’s, and the parties stipulated to compensability. Dr. Krestow placed the Claimant at MMI because she was asymptomatic. Dr. Thaker, E/C’s IME, opined that the Claimant’s neurologic exam was essentially normal, and placed the claimant at MMI with a 0% PIR. Neither of these doctors diagnosed the Claimant with post-concussive syndrome, cervicocranial syndrome, or cervical myofascial syndrome. EMA, Dr. Ross, diagnosed the claimant with a memory disorder, chronic headaches and neck pain most likely of myofascial origin. However, EMA gave the opinion that these conditions were not causally related to the industrial accident. EMA agreed with Dr. Krestow’s MMI date. Claimant’s counsel did not object to EMA report when it was filed, but subsequently objected to it on grounds of bolstering due to the inclusion of three articles regarding congestive heart failure in the footnotes. Claimant’s counsel elicited testimony about each footnote. The bolstering objection was overruled. Claimant’s IME, Dr. Suite, diagnosed the claimant with post-concussive syndrome, cervicocranial syndrome, cervical herniated disc (with no MRI taken), and cervical myofascial pain syndrome. Dr. Suite opined that the Claimant was not yet at MMI, and assigned work restrictions, including the avoidance of stressful situations. E/C objected to this testimony based on Daubert, but was overruled. The JCC found that there was no evidence to rebut the EMA’s findings. The JCC held that the Claimant was at MMI as diagnosed by Dr. Krestow. Finally, Claimant offered no testimony establishing that the treatment she obtained on her own was medically necessary and causally related to the industrial accident.
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