Kelley Kronenberg Partner Elizabeth Yohe secured a favorable ruling on a renewed claim for shoulder surgery at final hearing in a workers’ compensation matter before Judge of Compensation Claims Wilbur W. Anderson in the Orlando District Office, on behalf of the employer/carrier. 

The claimant, a 74-year-old plant nursery employee, was struck by a Bobcat loader and knocked to the ground on January 10, 2024, in a compensable accident. Despite his left shoulder condition having been found to be compensable in a prior Compensation Order issued on August 28, 2025, the Court denied authorization for left shoulder surgery, finding it was not medically necessary. That Order was not appealed and became final. 

After the authorized treating physician saw the injured worker again shortly after the prior Order a DWC-25 form was completed and equivocally stating only “possible left rotator cuff repair, waiting on judgment?” The claimant took this and framed this “new referral” as a request for the same surgery. The authorized treating physician testified that he did not submit a separate request for surgery, as he was waiting for more definitive information about the Court’s ruling before making any additional recommendations as he was trying to respect the legal process and did not want to intervene prematurely. 

Elizabeth successfully argued that the claim for surgery was barred by res judicata and the law of the case, as medical necessity had already been adjudicated in the prior Order. She also defeated the claimant’s argument that the employer/carrier had waived medical necessity by failing to timely respond to the DWC-25 form, with the Judge finding the form too equivocal to trigger a waiver. 

Based on Elizabeth’s skilled defense, the Judge denied the claim for surgery and the claim for total disability benefits, eliminating approximately $60,000.00 in exposure plus fees and costs. 

 

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