Friday, February 1, 2013

Sleeping Comfortably Without Res Judicata

Only in workers' compensation is a new bed a treatment prescription that the insurance company must pay for.

And not just any bed, but one that costs nearly $5,000 for a king size model, a beautiful, comfortable Sleep Number i10, "the ultimate in personalized comfort."

The SleepNumber i10 has exclusive "DualAir" technology that "lets you quietly adjust firmness on each side of the mattress for ideal comfort." It also has a 15-inch Duvet-style Pillowtop with advanced temperature balancing and moisture wicking that "keep you sleeping comfortably night after night."

With a dual-layer design this bed provides a "soothing layer of support" and its wireless, digital remote has memory features.

Dr. George Sidhom prescribed this for his patient, Wendy Smith, thrice.

Smith, a printer operator for Time Customer Services, was injured on Oct. 20, 2000, when she pulled a box off a table and hurt her back. She filed a claim for a repetitive injury to her lumbar spine.

Sidhom prescribed an "orthopedic mattress" for her spine condition. He specifically recommended a "sleep number i10 mattress and base" in October 2010.

The carrier likely objected, because Smith filed a petition for benefits seeking authorization for the mattress on Jan. 26, 2011. The parties entered into a mediation settlement agreement, where the employer/carrier agreed to provide an "orthopedic mattress" per Sidhom's prescription.

My guess is that the carrier felt that it was cheaper just to buy the bed than continue with the litigation over the issue.

But apparently the bed got lost in the shuffle so Smith again filed a petition for benefits seeking a "sleep number i10 mattress and base" and at a final merit hearing on May 25, 2011, pertaining to a claim for permanent total disability benefits, Smith asked the judge of compensation claims to reserve adjudication on the mattress because no mediation had been held on that petition, and it was not procedurally ripe at the time.

The JCC awarded PTD benefits and reserved adjudication on the mattress. The employer/carrier appealed the order.

On Nov. 1, 2011, Smith voluntarily dismissed her April 2011 petition for benefits, stating that the employer/carrier had agreed to authorize an orthopedic mattress recommended by Sidhom. In February 2012, the 1st District Court of Appeal (DCA) affirmed the PTD award and reserved adjudication for the sleep mattress and base.

On Feb. 21, 2012, Sidhom again prescribed the same sleep number i10 mattress and base. Smith filed a new petition for benefits in March 2012, seeking the mattress and base.

The employer/carrier filed a motion seeking dismissal of the latest petition for benefits seeking authorization of the mattress and base, contending that the res judicata doctrine barred it.

The doctrine of res judicata prevents the relitigation of previously-adjudicated claims.

On appeal the 1st DCA said that res judicata could be applicable, but not in this case because there never was an adjudication on Smith's entitlement to a "sleep number i10 mattress and base," or an adjudication regarding whatever benefit Sidhom prescribed in February 2012. Without a prior decision on Smith's entitlement to the bed, the doctrine of res judicata could not apply.

"This case involves a 2012 claim for a medical benefit based upon Dr. Sidhom's Feb. 21, 2012, prescription, a new claim based on a new prescription, issued after the 2011 voluntary dismissal," the court wrote. "Further, although the E/C [employer/carrier] alleged it timely provided the requested 'orthopedic mattress' sought in Claimant's first PFB [petition for benefits], what is now at issue was claimant's entitlement to a 'sleep number i10 mattress and base,' potentially a different benefit from the one agreed to by the E/C. Viewing this evidence in a light most favorable to claimant, the benefit was in fact different, and given the E/C’s contention that the benefit was the same, the facts were not so crystallized as to present only an issue of law; entry of a summary final order is thus precluded."

Smith is going to sleep well.

While Dr. Sidhom does not get flattering reviews in a website physician rating service ( my guess is that Smith is quite happy with Sidhom and sleeping comfortably on her SleepNumber i10.

Case: Smith v. Time Customer Services, No. 1D12-2398, 1/31/13, published.

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