DORA TREVINO, APPELLANT,
v.
DEPARTMENT OF REVENUE AND DIVISION OF RISK MANAGEMENT, STATE OF FLORIDA, APPELLEES
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In this workers' compensation appeal, the court addressed whether a Judge of Compensation Claims properly rejected an expert medical advisor's recommendations for diagnostic testing and treatment. The court affirmed the denial of cervical spine diagnostic testing but reversed the denial of lumbar spine evaluation at a pain clinic, finding the judge's factual finding unsupported by evidence.
The court affirmed the denial of cervical spine diagnostic testing because the JCC properly interpreted the EMA's recommendation for a surgical evaluation at which diagnostic testing would be considered. The court reversed the denial of lumbar spine evaluation because no evidence supported the JCC's finding that the EMA made no lumbar treatment recommendations, and the EMA's written report clearly recommended lumbar spine evaluation at a pain clinic.
[1] The opinion of a workers' compensation expert medical advisor is presumed correct unless there is clear and convincing evidence to the contrary.
[2] A Judge of Compensation Claims may interpret the recommendations of an expert medical advisor differently than the claimant, and such interpretation will be affirmed if s…
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Join FLexlaw to unlock all legal intelligence“The opinion of the [EMA] is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the [JCC].”
Establishes the statutory presumption that favors the expert medical advisor's opinion and the high burden required to reject it.
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Join FLexlaw to unlock all legal intelligenceClaimant sought workers' compensation benefits for cervical and lumbar spine conditions. She requested cervical discogram and CT scan, as well as lumb…
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In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred by employing an incorrect legal standard when he rejected the opinion of the expert medical advisor (EMA) and failed to award (1) cervical spine diagnostic testing and (2) a lumbar spine evaluation at an anesthesia pain clinic. We affirm Claimant’s first point on appeal and reverse the second.
In Claimant’s first point, she argues the JCC rejected the opinion of the EMA when the record contains no clear and convincing evidence to support such a denial. See § 440.13(9)(c), Fla. Stat. (2007) (“The opinion of the [EMA] is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the [JCC].”). Claimant sought an award of a cervical discogram and CT scan. The JCC found that the EMA recommended a surgical evaluation at which time the requested diagnostic testing would be considered. In doing so, the JCC did not reject the EMA’s opinion; rather, he interpreted it differently than did Claimant. Because competent substantial evidence supports the JCC’s interpretation of the doctor’s recommendations, we affirm the JCC’s award of an evalúa*932tion by a spine surgeon. See Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 873 (Fla. 1st DCA 1993) (holding JCC’s findings of fact must be upheld if any view of the evidence and its permissible inferences supports them).
In her second point on appeal, Claimant argues that the JCC erred in rejecting the EMA’s recommendations regarding treatment for the lumbar spine because the JCC did not recite clear and convincing evidence in support of his denial of the claim for lumbar treatment. In fact, the JCC found the EMA made no recommendations for lumbar treatment.
Generally, it is the claimant’s burden to prove entitlement to any requested benefit. See Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008) (“Claimant bore the burden over the course of the proceedings below to prove her entitlement to workers’ compensation benefits.”). When the JCC denied the requested lumbar spine evaluations, concluding that Claimant did not meet her burden of proof, arguably, it was not necessary that competent substantial evidence support the JCC’s denial of benefits. Id. (“A decision in favor of the party without the burden of proof need not be supported by competent sustainable evidence.”). Even though the JCC need not provide detailed findings explaining the denial of the benefits, the JCC’s discretion is not unfettered. As we noted in Ullman:
The role of this court must be to guard against fanciful or arbitrary abuse of discretion in workers’ compensation cases, and we will continue to do so by scrutinizing JCC findings under the light of the basic rule requiring competent substantial evidence in support of such findings.
Here, the parties did not question the EMA about his lumbar spine recommendations during his deposition. A review of his written report makes clear, however, that he recommended an evaluation of Claimant’s lumbar spine complaints at an anesthesia pain clinic, as was recommended by Claimant’s independent medical examiner. No evidence supports the JCC’s stated finding that the EMA did not make any treatment recommendations for the lumbar spine; thus, the JCC abused his discretion in denying the claim. Accordingly, we reverse this denial and direct that an order be entered awarding an evaluation at an anesthesia pain clinic.
We AFFIRM in part, REVERSE in part, and REMAND with directions that an order be entered awarding the requested evaluation at a pain clinic.
VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.
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Authorities Cited
- Ullman v. City OF Tampa Parks Dep't & Alexsis, 625 So. 2d 868 (Fla. 1st DCA 1993)
- Fitzgerald v. Osceola Cnty. Sch. Bd. & Fla. Sch. Bd. Ins. Tr., 974 So. 2d 1161 (Fla. 1st DCA 2008)