STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' COMPENSATION,

Petitioner, vs.

YFRAIN ESPINOSA,

Respondent.

/

Case No. 19-5908

RECOMMENDED ORDER

On March 12, 2020, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by videoconference in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Leon V. Melnikoff, Esquire

Attorney Supervisor

Department of Financial Services Office of the General Counsel

200 East Gaines Street Tallahassee, Florida 32399-4229

For Respondent: Yfrain Espinosa, pro se

(address of record)

STATEMENT OF THE ISSUE

The issue is whether Respondent has any documented permanent physical restrictions related to a compensable injury, so as to require Petitioner to refer

Respondent for a vocational evaluation, as provided in Florida Administrative Code Rule 69L-22.006(11)(b).

PRELIMINARY STATEMENT

By Request for Screening signed July 19, 2019, Respondent requested that Petitioner conduct a screening and provide other services, as appropriate, to enable Respondent to return to suitable gainful employment following a compensable injury on March 26, 2015. By letter dated August 2, 2019, Petitioner informed Respondent that it had determined to provide vocational services only in the form of job placement assistance.

By letter dated August 21, 2019, Respondent informed Petitioner that he disagreed with Petitioner's determination because he required additional services to be able to find a job that he could perform due to his physical limitations.

On November 6, 2019, Petitioner transmitted the file to DOAH. The hearing was originally set for January 13, 2020, but, on the morning of the hearing, Respondent was hospitalized due to a medical emergency that is unrelated to the conditions described below. After Respondent was discharged from the hospital and received medical clearance to participate in this proceeding, the hearing was reset for

March 12, 2020.

At the hearing, Petitioner called one witness and offered into evidence ten exhibits. Respondent called one witness and offered into evidence two exhibits, including a late-filed exhibit in the form of a report from Dr. Christopher Brown. At the hearing, the administrative law judge gave Petitioner an opportunity, after the filing of Dr. Brown's letter, to ask for relief, such as reopening the hearing, but Petitioner did not do so. All exhibits were admitted.

The court reporter filed the transcript on April 30, 2020. Petitioner filed a proposed recommended order on May 8, 2020.

FINDINGS OF FACT

1. On March 26, 2015, Respondent, who is presently 58 years old, sustained injuries to his neck and back within the scope and course of his employment as a crane operator. Respondent suffered the injuries while carrying a concrete-filled door that shifted suddenly when a coworker lost control of his portion of the load.

2. As part of a workers' compensation proceeding in which Respondent sought permanent total disability (PTD) benefits, an expert medical advisor, Dr. Richard Rozencwaig, prepared a report dated November 12, 2018 (EMA Report). The EMA Report notes that CT scans taken of the cervical and lumbar spine four days after the accident mostly revealed degenerative changes. One month later, according to the EMA Report, Respondent returned to the hospital, complaining of back pain, and a lumbar CT scan revealed nothing substantially different from the scan taken one month earlier. On October 15, 2015, another lumbar CT scan again revealed nothing substantially different, according to the EMA Report.

3. After examining the studies and images and making findings similar to those noted above, Dr. Rozencwaig concluded that, within a reasonable degree of medical certainty, the March 26 workplace incident caused Respondent to sustain acute cervical and lumbar sprains or strains; no further treatment was necessary for either of these sprains or strains; Respondent had reached maximum medical improvement (MMI) with 0% impairment as to each injury; and the injuries did not restrict or limit Respondent's return to work.

4. Following a hearing, by a Final Compensation Order issued June 26, 2019, a Judge of Compensation Claims denied Respondent's claim for PTD benefits (FCO). The FCO finds that Respondent's employer terminated him on April 20, 2015, and Respondent had not worked since, nor had he diligently sought employment.

   
   

5. The FCO notes that Dr. Brown saw Respondent for his lumbar condition on December 22, 2015. After obtaining an MRI, Dr. Brown referred Respondent to a pain management specialist. After the pain management treatment, Respondent returned to Dr. Brown on August 11, 2016, at which time Respondent reported neck pain. On September 20, 2016, Dr. Brown diagnosed low back pain and disc prolapse, evidently related to the workplace injuries, and found that Respondent had reached MMI with a 6% permanent impairment, although he had no work restrictions.

6. The FCO notes that Dr. Raul Aparicio, who served as Respondent's independent medical examination physician, evaluated the cervical and lumbar conditions on May 4, 2018. He diagnosed cervical disc disorder with radiculopathy, lumbar disc disorder with radiculopathy, and mild lumbar disc degeneration.

   Dr. Aparicio opined that, if Respondent continued not to desire surgery, he had reached MMI and would be restricted to lifting, pushing, or pulling ten pounds and limited bending, stopping, crawling, and overhead work, evidently due to the workplace injuries.

7. The FCO reports that, due to the conflict between the findings of Drs. Brown and Aparicio as to employment restrictions,1 Dr. Rozencwaig was appointed and eventually issued the above-described EMA Report. The FCO's reliance on the expert medical opinion that Respondent could work without restrictions drives the denial of the PTD rating because, with restrictions limiting Respondent to sedentary employment, Respondent would have been unemployable due to his lack of a general equivalency degree, inability to speak English, lack of transferable skills, and age, although there would have been an issue about his failure to search for work.

8. Based on the foregoing, Respondent does not suffer from any permanent impairment resulting from the workplace injuries on March 26, 2015. Preexisting conditions in Respondent's lumbar and cervical spine have unfortunately continued

   
   

   1 Respondent relied on Dr. Aparicio, not Dr. Brown, in the workers' compensation proceeding because Dr. Aparicio at least noted permanent employment restrictions, which supported Respondent's claim for PTD benefits more than Dr. Brown's notation of no such restrictions, even though, at some point, Dr. Brown found a 6% permanent impairment, as in paragraph 9 below.

   
   

   to degenerate, resulting in considerable pain and discomfort, including immobility of the neck, shaking of the left arm, and clinical depression. Even if these symptoms produced permanent physical restrictions, neither the symptoms nor the underlying degenerative conditions are causally related to the workplace incident.

9. As relevant to the present case, according to Webster's online dictionary, to "document" is: 1. "to furnish documentary evidence of"; 2. "to furnish with documents"; or 3.b.2.2 "to portray realistically."3

CONCLUSIONS OF LAW

10. DOAH has jurisdiction. §§ 120.569 and 120.57(1), Fla. Stat. (2020).4

1. Section 440.491(6)(a) provides:

   Upon … the request of an injured employee, the department shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaluation, approve training and education, or approve other vocational services for the employee. … The department shall by rule establish training and education standards pertaining to employee eligibility ….

   
   

2. The dispute in this case is whether Respondent is entitled to a vocational evaluation, rather than merely the job placement services that Petitioner offers. In denying Respondent's request for a vocational evaluation, Petitioner has relied on Rule 69L-22.006(11)(b), which provides that Petitioner may not refer an injured employee for a vocational evaluation if the employee "[h]as no documented permanent physical restrictions related to the injury."

   
   

   2 Omitted definitions are inapplicable to the present case.

   3 https://www.merriam-webster.com/dictionary/document, as found on May 21, 2020.

   4 All references to "section" or "§" are to Florida Statutes, and all references to statutes are to the 2020 statutes, except where otherwise indicated.

   
   

3. As an applicant, Respondent has the burden of proving by a preponderance of the evidence that he is entitled to a vocational evaluation. Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); § 120.57(1)(j).

4. Dr. Rozencwaig's written findings rule out any permanent physical restrictions related to the workplace injuries, and this recommended order has credited them, not because Dr. Rozencwaig was appointed as the expert medical advisor, but on the strength of his comprehensive findings and analysis.

5. Dr. Brown's written findings rule out any permanent physical restrictions related to the workplace injuries. Dr. Brown found a 6% permanent impairment, but this finding, especially given the minimal impairment, does not preclude his finding of no permanent physical restrictions.

6. Dr. Aparicio's written findings identify permanent5 physical restrictions related to the workplace injuries. This recommended order has not credited them, largely due to the above-noted weight assigned to Dr. Rozencwaig's analysis, but also due to the inconsistency of a finding of permanent physical restrictions with a finding of no permanent impairment and the evident lack of any explanation of how a sprain or strain could result in a permanent restriction.

7. This case thus presents the question of whether documented findings of permanent physical restrictions related to a workplace injury--even if uncredited-- satisfy the above-quoted language of Rule 69L-22.006(11)(b). Within the meaning of the first two above-cited definitions of "document," Dr. Aparicio's written findings constitute documented permanent physical restrictions related to the workplace injuries. Within the meaning of the third above-cited definitions of "document," Dr. Aparicio's written findings do not constitute documented permanent physical restrictions related to the workplace injuries.

8. The parties present sharply different preconditions to a vocational evaluation. In Respondent's interpretation, he must prove only that a physician-- here, one of three--documented a finding of permanent physical restrictions related to the workplace injuries, even if this finding was uncredited in the workers'

   5 The restrictions are permanent because Dr. Aparicio found that Respondent had reached MMI.

   
   

   compensation proceeding and the present administrative proceeding. In Petitioner's interpretation, Respondent must prove that he has permanent physical restrictions related to the workplace injuries.6

9. It is difficult to treat Respondent's interpretation as consistent with the statutory requirement of an eligibility criterion. An interpretation of the rule that requires only that a physician declare in writing the presence of permanent restrictions nearly reads this criterion out of existence. Here, for instance, the physician offering the written opinion at the same time somehow found no permanent impairment. The actual proof of permanent physical restrictions is a more sensible eligibility criterion because it lends meaning to the notion of eligibility as a process of differentiation. Thus, Petitioner's interpretation prevails.7

RECOMMENDATION

It is

RECOMMENDED THAT the Department of Financial Services enter a final order denying Respondent's request for a vocational evaluation.

6 The findings in this case avoid the even more difficult problem presented by the case in which the finding of a permanent physical restriction in the workers' compensation proceeding is different from the finding of a permanent physical restriction in an administrative proceeding addressing the subject screening issue.

7 Petitioner mistakenly relies in its proposed recommended order on section 440.13(9)(c), which provides, when the opinions of two health care providers are in conflict, for the appointment of an expert medical advisor, whose opinion is presumed correct. The sole shortcoming of Petitioner's argument is that this provision governs a workers' compensation proceeding, not an administrative proceeding, which is de novo under section 120.57(1)(k).

DONE AND ENTERED this 28th day of May, 2020, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 28th day of May, 2020.

COPIES FURNISHED:

Leon V. Melnikoff, Esquire Attorney Supervisor

Department of Financial Services Office of the General Counsel

200 East Gaines Street Tallahassee, Florida 32399-4229

Yfrain Espinosa, pro se (address of record)

Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 19-005908

Orders for Case No: 19-005908