Mercedes v. SE Personnel Leasing / Southeast Personnel Leasing, Inc. / Packard Claims Administration
JCC Stephenson (West Palm Beach)(Tony Amelio)(6-18-21) – Denied PTD and authorization of T6-L4 fusion surgery. Following the claimant’s 2008 accident, the E/C immediately and consistently accepted a lumbar strain/sprain only and a temporary exacerbation of a prior herniation / scoliosis / dextroscoliosis. They continued to assert that position even though the pre-existing conditions ultimately resulted in recommendations for a fusion, and asserted the prior conditions were the MCC of any disability or need for treatment. The claimant was seen by multiple providers, IMEs and ultimately EMA Dr. Lenard. The JCC rejected the claimant’s multiple theories regarding waiver and estoppel, or that the E/C “bought” the claimant’s entire back condition and subsequent surgery. The JCC noted the E/C’s constant articulation of what they had accepted and denied, and at no point was the claimant lulled into thinking or relying upon supposed non-specific acceptance or authorization of treatment. The claimant failed to sustain his burden of proof in relation to either PTD or the surgery. Click here to view Opinion Perhaps JCC Stephenson’s characterization says it best: “Here the Claimant raised a hall of mirrors consisting of issues and defenses centered on what the Employer/Carrier did or did not do. My analysis will begin with them for, if we entered into the hall of distorting glass like Bruce Lee did in the climactic scene of the 1972 film “Enter the Dragon” and begin smashing the glass obstacles like Lee did in order to reach the villain, we will find the Claimant has failed to meet his burden of proof for permanent total disability benefits and authorization of the T6-L4 fusion surgery…. When one sweeps away all the shards of mirror, the only medical opinion left standing as the Claimant would have it would be that of his own IME Dr. Stein. However, this reliance on Dr. Stein fails. As elaborated above, Dr. Stein did not support the surgery because the pain generator was not the scoliosis, but the RSD in his opinion. He even opined the surgery could make the Claimant worse. This leaves the Claimant without medical evidence supporting the surgery claim. Moreover, Dr. Stein’s restrictions for “current symptomology” included those for the (non-related) CRPS/RSD…. Consequently, under the illusional scenario that the Employer/Carrier was on the hook for the whole back kit-and-kaboodle, I find the Claimant failed to meet his burden of proof with competent substantive medical evidence as to the two subject claims that were the subject of this Final Hearing.” |