         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1267
                  _____________________________

PRADA USA CORP/TRAVELERS
INSURANCE COMPANY OF
AMERICA,

    Appellants,

    v.

CHARLES YOUNG,

    Appellee.
                  _____________________________

On appeal from an order of the Judge of Compensation Claims.
Walter J. Havers, Judge.

Date of Accident: April 30, 2003.

                           May 2, 2019


PER CURIAM.

     The Employer/Carrier appeal an order holding that res
judicata did not bar Claimant from seeking benefits in 2017
similar to benefits he had sought, but withdrawn before hearing,
in 2015. Claimant had injured his lumbar spine, among other
things including his knee, in the industrial accident; and the E/C
provided treatment and other benefits related to the lower back
injury from 2003 through 2014. In December of 2014, Claimant
filed a new petition for benefits seeking Lidoderm patches and
lumbar physical therapy as recommended by his authorized
neurologist. By that time several of Claimant’s healthcare
providers had concluded that Claimant’s condition was
attributable to pre-existing degenerative conditions rather than to
the industrial accident. Shortly before the scheduled hearing on
the 2014 PFB, Claimant’s authorized neurologist opined in his
deposition that the ongoing symptoms were not related to the work
accident, and the recommended Lidoderm patches and lumbar
physical therapy were not medically necessary due to the work
accident. Claimant withdrew the lower-back claim before the PFB
went to hearing on other benefits involving Claimant’s knee injury.

     Beginning in the fall of 2015, less than three months after he
withdrew his PFB for lumbar spine treatment, Claimant began
seeing a physician for persistent lumbar spinal pain. After six
months, that physician recommended that future treatment be
provided by a spine doctor or neurosurgeon. Almost a full year
later, on March 24, 2017, Claimant filed a new PFB requesting
follow-up with that physician, but the E/C authorized treatment
solely for the left shoulder. In September of 2017, Claimant again
filed a PFB requesting evaluation and treatment for his lumbar
spine.

     For the hearing on the 2017 PFB, the E/C asserted that
Claimant’s requests for spinal treatment were barred by res
judicata because the same treatment had been requested and
withdrawn prior to the 2015 hearing. The JCC rejected the res
judicata argument on the grounds that the 2015 PFB had narrowly
requested Lidoderm patches and lumbar physical therapy,
whereas the 2017 request more broadly sought lumbar evaluation
and any treatment deemed necessary as a result of that
evaluation. The JCC found that this distinction was sufficient to
destroy the “identity of the thing sued for” element of res judicata,
citing Caron v. Systematic Air Servs., 576 So. 2d 372, 375 (Fla. 1st
DCA 1991). The JCC also accepted Claimant’s argument that
under the 120-day rule, the E/C waived any right to deny
compensability of the lumbar spine after stipulating to
compensability in 2005 and providing treatment for more than a
decade.

     We observe that while the doctrine of res judicata may have
its place in the workers compensation arena, it is a difficult concept
to apply to physical conditions that can and do change over time

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and often involve complex multi-factorial considerations. However,
we find it unnecessary to reach the res judicata issue here, because
we conclude that the JCC correctly invoked the 120-day rule as
precluding the E/C’s argument against industrial causation of the
lumbar spine injury. We note that the E/C can raise an MCC
defense whenever the evidence supports it, and raised it below; but
did not argue that issue on appeal.

    AFFIRMED.

ROBERTS, KELSEY, and WINSOR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Kurt J. Wirsing of Miller, Kagan, Rodriguez & Silver, P.L., Coral
Gables, and Steven H. Preston of Hicks, Porter, Ebenfeld & Stein,
P.A., Miami, for Appellants.

William F. Souza of Law Offices of William F. Souza, P.A., North
Miami Beach, for Appellee.




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