Smith v. Whole Foods Market, Inc. / Gallagher Bassett

JCC Sancerni (Orlando) (Scott Miller) (11-20-2025) – Denied compensability of the cervical.

The claimant injured his low back on 10/26/2021 when a co-worker came behind him and touched him inappropriately, which startled him and caused him to jump/jerk up. He came under the care of Dr. Katzman and Dr. Cowin at Advanced Orthopedics. He mentioned cervical pain to Dr. Katzman in April of 2022. The claimant’s testimony ranged from his pain occurring nearly 18 months post-accident to not being sure when the pain actually began.  On 7/6/2023, Dr. Katzman recommended cervical surgery. The E/C issued a Notice of Denial on 10/27/2023, denying the cervical. The cervical surgery did not take place, but the claimant did undergo lumbar surgery in February of 2024. Prior to that surgery taking place, Dr. Katzman recommended MRIs of the cervical, brain and thoracic for diagnostic purposes. The medical notes reflected complaints of pain of the neck and diagnosis of lumbar and cervical spine stenosis. However, the only treatment provided was for the lumbar. The claimant argued that the E/C provided medical benefits for the cervical spine by paying for evaluation appointments and prescription medications and was estopped from denying compensability of the cervical pursuant to the 120-day rule. The JCC found the claimant was prescribed Ultram for his lumbar condition prior to any cervical complaints in 2022, and again for his lumbar condition. There was no indication as to which body part it was written for. The JCC found there was no provision of medical benefits provided for the cervical to require the E/C to invoke the 120-day pay-and-investigate provision. The claimant failed to establish that the E/C provided medical benefits specifically and solely as to the cervical condition and separate from the lumbar condition.  The JCC also found that the claimant failed to prove that the accident was the MCC of the cervical condition by relying upon the treating physician (Dr. Cowin) and the E/C IME (Dr. Weber) and rejecting the opinions of the claimant’s IME (Dr. Shea).   Click here to view Order