The First District Court of Appeal affirmed the JCC'S final order in Gearhart v. Securitas Security Services USA/Sedgwick CMS
Posted in Newsletters - 2016 on August 25, 2016
The First District Court of Appeal has already affirmed the JCC'S final order in Gearhart v. Securitas Security Services USA/Sedgwick CMS, which was handled before the JCC by Partner Chris Tice, of our Jacksonville office and argued at the Workers' Compensation Convention (Wednesday, August 23) by Partner Hinda Klein of our Hollywood office. The case involved the issue of whether the claimant's total knee replacement was caused by his industrial accident, in which he twisted his knee and tore his meniscus. After the claimant underwent arthroscopic surgery to repair the meniscus, he had a total knee replacement of the same knee, which, he argued, was caused or exacerbated by his accident.
There were competing medical opinions regarding the major contributing cause and need for the knee replacement surgery and, on the E/C'S motion, the JCC appointed an EMA to resolve the dispute. The EMA opined that the knee replacement was necessitated by the Claimant's preexisting arthritis and the JCC found no clear and convincing evidence to overcome the EMA'S opinion. Significantly, the claimant had not disclosed that he had sought medical treatment for pain in both knees some seven (7) years before his accident and had arthroscopic surgery on his other knee at that time. The E/C ultimately discovered those records and provided them to the treating physician, Dr. Abraham Rogozinski. Dr. Rogozinski initially opined that the accident caused the claimant's need for the knee replacement, but then changed his opinion after reviewing the previously undisclosed records, which showed that the claimant had significant arthritis long before his accident. Only Dr. Rogozinski and the EMA had reviewed those records before the final hearing. The JCC found the EMA opinion to be presumptively correct and denied the request for the total knee replacement.
On appeal, Richard Sicking, the Claimant's counsel, argued that the MCC and EMA statutes were both unconstitutional, although it was unclear precisely how or why. In response, the E/C argued that there was no true constitutional infirmity and, in any event, the JCC'S order could be affirmed on the alternative ground that the claimant misrepresented his prior history in an effort to obtain workers' compensation benefits. Because the First District did not write an opinion explaining the rationale for its affirmance, it is not possible to discern the precise reason(s) for its decision.
It should be noted that because the Court did not issue a written opinion, the Claimant is precluded from seeking Supreme Court review. However, the Claimant does have the opportunity, within fifteen (15) days of the decision, to file a Motion for Rehearing, Rehearing En Banc, Clarification or Motion to issue a Written Opinion which could enable him to pursue that review. The vast majority of such motions directed to decisions without opinion are denied and we do not believe that the appellate court is likely to change its mind or to write an opinion in this case.
For further information, please feel free to contact the attorneys at Conroy Simberg.