maXimum meDiCaL imProvement anD inDemnity Benefits
Workers’ Compensation Section
Continued from page 56
In June 2018, Olvera selected
and saw another orthopedic
surgeon, for an independent
medical exam (IME). This doctor
opined that Olvera was not at
MMI and was not able to work.
He recommended additional
electrodiagnostic tests and possible
additional surgery. Litigation
followed for the tests and for
temporary indemnity benefits.
An Expert Medical Advisor
(EMA) was appointed to address
the conflict in medical opinions.
The EMA opined that the
electrodiagnostic tests should be
done, that additional surgery was
needed, and that Olvera was not
at MMI. Electrodiagnostic tests
were done before Dr. Klein was
deposed, and he said at his
deposition that they confirmed the
need for an additional surgery. Dr.
Klein agreed, on cross examination,
that Olvera would be at MMI
unless and until surgery. After
MAR - APR 2020
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HCBA LAWYER
receiving the electrodiagnostic tests,
Dr. Leach recommended a surgical
evaluation by another doctor.
Olvera testified at the final hearing
that he wanted to have the surgery.
The subject of the final hearing
was not authorization of surgery,
due to procedural rules, but instead
was whether Olvera was entitled
to temporary indemnity benefits
(TPD) from May 31, 2016, until
surgery could be performed. The
Judge of Compensation Claims
denied the claim for additional
TPD benefits and held that Olvera
continued to be at MMI from
May 31, 2016, until the issue of
surgery was decided in the pending
litigation. The First District
reversed and remanded the denial,
holding that the opinion of the
EMA that MMI had not been
reached was clear and unequivocal,
and is to be presumed to be correct
unless there is clear and convincing
evidence to the contrary.
In Crispin v. Orlando Rehabilitation
Group/Gallagher Bassett, 2 the
claimant, who was 73 years old
when injured, reached MMI and
was accepted as permanently,
totally disabled (PTD). For workers
over age 70 when injured, PTD
benefits end five years after the
determination. 3 Crispin had a
surgery during the five subsequent
years, and the doctor placed her at
MMI from the surgery 10.5 weeks
later. Crispin argued that those
10.5 weeks should be reclassified
to TTD, and she should receive an
additional 10.5 weeks of PTD as
a result. The First District affirmed
a ruling that the five years of PTD
benefits ends five calendar years
after it starts and is not extended
by an interim surgery. n
283 So. 3d 447 (2019).
283 So. 3d 339 (2019).
3 § 440.15(1)(b), Fla. Stat.
1
2
Author: Anthony V. Cortese – Anthony
Cortese, Attorney at Law
57