Briefly Speaking – Case Law Updates (12/31/19)

Michelle Willis v. City of Ormond Beach Police Dept. and Relation Insurance Services of Florida

JCC Anderson: Daytona Beach District                                    Order Date: 10/11/2019

OJCC# 19-004548                                                                      Date of Accident: 4/28/2015

E/C Counsel: George Helm                                                      Claimant’s Counsel: Jon E. Benzette                             

JCC Order: Click Here                                        

Briefly: Authorization of Medical Care, Major Contributing Cause

Summary:  The claimant suffered a compensable workplace accident in which she injured and received treatment including surgery for her right shoulder. Initially, the authorized treating provider indicated that the claimant had sustained a neck/cervical strain, but due to the severity of the right shoulder condition, the treatment was focused on the right shoulder. Following the surgery, the claimant returned to the authorized provider complaining of neck discomfort with numbness and radiating pain from the shoulder to the right hand. Claimant was diagnosed with cervical radiculopathy, but the authorized physician opined that the neck issues were unrelated to the accident. The claimant then began treating with another authorized physician who indicated that the claimant did have neck pain at the outset of his treatment for the work accident, but opined that the condition resolved with no permanent impairment. The second authorized physician also concluded that the cervical radiculitis and disc degeneration was unrelated to the original accident.

The claimant obtained an IME who opined that the claimant developed cervical facet syndrome caused by the industrial accident, but did not diagnose cervical radiculopathy. The IME did not review the authorized treating provider’s records. The JCC reviewed all of the medical evidence, and accepted the opinions of the authorized treating physicians finding that this conclusion was partially based on the fact that the IME’s opinions stemmed from a single examination without reviewing the prior doctor records. The JCC denied the claimant’s request for authorization and medical care of his neck condition.

 Amy Dawson v. Hillsborough County Sheriff’s Office and Commercial Risk Management, Inc.

JCC Young: Tampa District                                                      Order Date: 10/7/2019

OJCC# 18-009774                                                                      Date of Accident: 3/9/2018

E/C Counsel:    Warren Sponsler                                           Claimant’s Counsel: Tonya Oliver

JCC Order: Click Here  

Briefly: Psychiatric Care, First Responder

Summary:  The claimant was employed as a law enforcement officer with the local Sheriff’s office, and successfully completed a psychological evaluation prior to starting her position in 2017. The claimant alleged that she was suffering from depression and post-traumatic stress disorder due to an incident that occurred while she was performing her duties as a law-enforcement officer and was dispatched to a shooting call which involved a gang member. Following this incident, the claimant was arrested for aggravated assault with a deadly weapon against her wife and as a result was Baker Acted and involuntary committed for a psychological assessment. For her mental issues, the claimant argued that her trigger which manifested in the depression and PTSD diagnosis, was the prior incident in which she was dispatched to investigate a shooting call two years prior. Following that event, the claimant testified in deposition that on several occasions following the initial gang-related incident, the claimant held a gun to her head and contemplated suicide, but never reported her suicide attempts to her employer because she was afraid of losing her job.  Claimant testified that because of her involvement with the gang members in that incident, she was paranoid and hypervigilant that the gang would retaliate against her.

At trial, the claimant admitted that she never informed her supervisors or her employer about her suicidal thoughts and mental issues she was having, and deliberately hid the fact that she was experiencing symptoms and mental issues from her employer. The JCC reviewed case law which previously excused the claimant’s obligation to notify her employer about work-related issues, and ruled that it did not apply in this case because the claimant testified that she was aware that her issues could be stemming from her employment, but made a conscious effort not to notify her employer because she believed it could jeopardize her employment. Based on that, the JCC found that the claimant did not provide timely notice of her work-related injuries which bars her petition for benefits. Additionally, the JCC reviewed all of the medical evidence including all of the psychiatric opinions, and concluded that although the claimant was a member of a protected class with respect to psychiatric injuries, the claimant failed to establish with clear and convincing evidence that her PTSD and nervous mental injury resulted from her employment.

Richard Crooks v. Vision Ace Hardware and Gallagher Bassett Services, Inc.

JCC Hedler: West Palm District                                    Order Date: 10/9/2019

OJCC# 19-001304                                                          Date of Accident: 12/17/2018

E/C Counsel:    Scott Miller                                          Claimant’s Counsel: Marcos Gonzalez

JCC Order: Click Here  

Briefly: Major Contributing Cause, Temporary Partial Disability, Voluntary Limitation of Income

Summary:  The claimant is a 57-year-old man who was injured after hearing a pop in his back while performing his job duties for the employer in the lumberyard. The claimant returned to work on the following day, and indicated that he injured his back again loading concrete and immediately reported his accidents to the store manager. The claimant went to an urgent care clinic where he was diagnosed with a thoracic strain and given work restrictions. The claimant indicated in deposition and at trial that he believed he could not follow the work restrictions which is why he had not returned to work. The claimant did ultimately return to work and the employer offered modified duty. The claimant then complained that the employer was giving him work beyond his restrictions. His new position was to work as a front door greeter, but the claimant refused to continue working for the employer. The main dispute in this claim was that although the E/C accepted the compensability of the industrial accident, the E/C only authorized treatment for his thoracic and lumbar strains, but the claimant argued that the compensable accident resulted in thoracic herniated discs.

Both parties then obtained an IME to determine the thoracic herniated disc etiology. Ultimately, the JCC accepted the opinions of the claimant’s IME, concluding that the E/C’s IME’s opinions seemed to rely on irrelevant aspects of the claimant’s medical history and on the MRI reports rather than review of the actual MRI films. Accordingly, the JCC ruled in favor of the claimant and indicated that the claimant met his burden of proving that the industrial accident resulted in thoracic disc protrusions. With respect to the indemnity issue, the JCC accepted the testimony of the claimant’s supervisor who testified that the employer offered suitable employment to the claimant within his work restrictions, but the claimant rejected the employment and quit his job. Accordingly, the JCC denied the claimant’s request for TPD benefits.

Mary Thompson v. Escambia County School Board and Escambia County School District

JCC Winn: Pensacola District                                                  Order Date: 10/11/2019

OJCC# 18-008411                                                                      Date of Accident: 12/7/2017

E/C Counsel: Joseph Hammons                                               Claimant’s Counsel: Brian Carter

JCC Order: Click Here

Briefly: Temporary Partial Disability, Voluntary Limitation of Income, Surgery, Authorization of Medical Care

Summary:  The claimant was involved in a compensable workplace accident while employed as a cafeteria worker for the employer when she tripped and fell onto her right knee and right upper extremity. Claimant began seeking medical treatment and was complaining of difficulty walking and bending her right knee due to the pain and swelling as well as bruising of her right forearm. Claimant underwent an MRI of her knee and she was released to return to work with restrictions of standing no more than five minutes per hour and to avoid repetitive movement with the right hand and no lifting more than 40 pounds. Following positive findings on her knee MRI, the claimant was referred to an orthopedic surgeon who ordered physical therapy and other conservative treatments including steroid injections. The authorized treating orthopedist concluded that she was not a surgical candidate and placed her at MMI with 0% impairment with no work restrictions. The authorized physician indicated that the chondromalacia and meniscus tear both pre-existed the industrial accident. Based on that, the claimant obtained an IME opinion who opined that the MCC of the aggravation of a pre-existing chondromalacia and the meniscal tear was the work related accident, and surgery was medically necessary to clean out the meniscal tear which would allow the claimant to rehab properly.

During her treatment, the claimant was placed on work restrictions, and the employer was able to accommodate her restrictions.  However, the claimant never returned to work despite receiving over 300 calls from various schools offering her employment. Based on the evidence, the JCC concluded that the claimant failed to establish a causal connection between the accident and her claim for wage loss, and ultimately voluntarily limited her income. With respect to continued medical treatment, the JCC reviewed all of the medical evidence and found that the claimant was entitled to continued medical treatment. With respect to the surgery, the JCC ruled that although he accepted the claimant’s IME’s opinion that the meniscal tear is causally related to the accident, because the claimant IME is not an authorized treating provider and there is no indication that an authorized provider ordered surgery or would perform the surgery, the claim for surgery is premature and therefore denied.