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Rosa v Progressive Employer Services

An April 12, 2012 1DCA decision reversing Judge Murphy.

The 1DCA reversed the JCC's decision finding that the JCC erred:
1 In making a finding on the Claimant’s PIR;
2 That the Claimant had reached maximum medical improvement; and
3 In denying the Claimant’s claim for temporary indemnity benefits.

PIR
The issue of the Claimant’s PIR was not properly before the JCC. The PIR claim had not been mediated, listed in the Uniform Pretrial Stipulation, or addressed by either party, and was not ripe for adjudication. The 1DCA found that the JCC erred in making a finding on Claimant’s PIR because that issue was beyond the scope of the hearing.

Ruling on an issue that is not properly before the JCC is a violation of a party’s due process rights.

MMI and TEMPORARY BENEFITS
Claimant also argues the JCC erred in finding that Claimant had reached maximum medical improvement (MMI) and further erred in relying upon that erroneous determination to deny the Claimant’s claims for temporary indemnity benefits.

The JCC awarded a C-7 nerve block based on the opinion of the EMA that the nerve block was not ordered as palliative care, but rather as a diagnostic tool to isolate the cause of Claimant’s residual neck and shoulder pain and to help determine the future course of treatment.

The JCC awarded the treatment based on the opinion of the expert medical advisor that the procedure was medically necessary because it could bring about some degree of improvement in the Claimant’s condition. Hence, the JCC’s finding that the Claimant had reached overall MMI was inconsistent with the JCC’s award of the requested treatment. The 1DCA has held that an award of medical care that is remedial in nature is inconsistent with a denial of temporary indemnity benefits for the same time period.

The 1DCA decision does not go into any detail regarding the temporary disability benefits period. It does not detail the claimant's restrictions and employment situation. The 1DCA remanded for further findings concerning Claimant’s entitlement to temporary indemnity benefits.

Click here to see the 1DCA opinion
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