Stacey Kubik v. Party City and Travelers Insurance Company

Jerry Hayden (Miami, FL) (Workers’ Compensation) The issues addressed at Final Hearing included a Petition for Benefits filed on 8/2/17, seeking PTD benefits and supplemental benefits retroactive to 3/1/17 to date and continuing, plus penalties and interest. The E/SA argued that the Claimant was not eligible for PTD benefits, or, alternatively, that she had not performed a bona fide and exhaustive job search. There was a difference of opinion between the vocational experts regarding the quality of the Claimant’s job search and the existence of suitable jobs within a 50-mile radius of her place of residence. There was also a difference of opinion between the medical experts regarding the date of MMI and work restrictions, leading to the appointment of an EMA. The EMA was asked to render opinions regarding the Claimant’s restrictions and the date of MMI. Following the examination, the EMA opined that Claimant was likely suffering from Complex Regional Pain Syndrome despite the lack of such diagnosis from any prior medical expert. It was the EMA’s opinion that the Claimant was not MMI unless and until she was evaluated, and treated if necessary, by an RSD specialist. Finding that there was no clear and convincing evidence to contrary, the JCC afforded the EMA’s opinion the presumption of correctness and found that the Claimant was not MMI. The JCC further noted that even if such opinions were not within of the scope of the questions presented to the EMA, that he nonetheless accepted the EMA’s opinions over those of the other medical experts. The JCC denied the claim for PTD benefits, penalties, interest and attorney’s fees and costs.