O’Connor v. Consulate Health Care/Gallagher Bassett Services, Inc.

JCC Weiss (Ft. Myers)(Paul T. Terlizzese)(6.18.2020)—Denied claims for continued treatment.  The E/C accepted a thoracic and lumbar strain.  Dr. Tucci (pain management) placed the claimant at MMI on 1/6/14 with a 0% and full duty release.  Dr. Moyer (neurosurgeon) evaluated her on 7/18/14 and referred her to Dr. Valente for injections.  Dr. Valente administered injections and deferred recommendations and MMI to Dr. Moyer.  Dr. Moyer recommended surgery for a herniation at L6-S1 on 7/17/15 for which the claimant was indecisive.  There was never any evidence presented that this finding and corresponding need for treatment was related to the work accident.  Her last benefit received was in February 2016 when she filled a prescription.  She later filed a 12/30/19 PFB seeking continued treatment with Dr. Moyer and Dr. Valente which was the subject of this Final Hearing.  The E/C asserted the claimant failed to establish this care was medically necessary and causally related.  The claimant argued the E/C accepted the “lumbar spine” and there was no evidence of an intervening cause to break causation.  She did not offer any additional evidence.  The JCC found the E/C accepted only a “lumbar strain-resolved” and agreed the claimant failed to meet her burden.  The E/C also raised a Statute of Limitations (“SOL”) defense which the claimant argued was tolled where the E/C agreed to authorize care in September 2017 pursuant to a Response to her PFB.  The Response provided, though, that the claimant was to schedule her own appointment.  The SOL was tolled in 2017 due to an outstanding fee/cost issue relating to a May 2014 PFB.  The E/C thereafter moved to compel the filing of a Verified Fee PFB which the JCC granted.  The claimant’s attorney failed to file one and the E/C moved to dismiss, which was granted on 4/18/18 and resulted in no further Petitions/issues being outstanding.  The JCC therefore found the SOL had run in the instant claim where the 2019 PFB was untimely.  The claimant also asserted the E/C was estopped from raising the SOL where they agreed to authorize care in September 2017 but never provided that care.  The JCC agreed with the E/C, though, that the care was properly authorized and the claimant was the one responsible for scheduling same(per Response to PFB), which she failed to do.  The claimant’s final argument was that the SOL was tolled because the E/C did not obtain MMI/IR information from all providers.  The JCC found the E/C relied on Dr. Tucci’s MMI/IR opinions and the claimant offered no support that the law required all authorized physicians to provide this information.  Click here to view order