Briefly Speaking – Case Law Updates (2/25/19)

Ionel Magdalinis v. Brilliant Blue LLC.

JCC Jacobs: Miami District                                          Order Date: 1/24/2019

OJCC Case: # 18-018186JIJ                                          Date of Accident: 4/9/18

Claimant’s Counsel: Pro Se                                     E/C’s Counsel:  Ryan Knight

JCC Order: Click Here  

Briefly: Fraud/Misrepresentation 

Summary:  Claimant testified in deposition that on April 9, 2018 the owner of Brilliant Blue, LLC accidently struck him in his right eye with the end of a pole used to clean pools. Claimant testified he lost consciences for 15 minutes but did not receive any emergency medical care. He returned to work for the employer the following day. He performed his normal job duties until July 3, 2018, when his employment was terminated. The E/C initially authorized medical treatment. The Claimant denied the existence of any prior eye injuries of any kind to his medical providers. The Claimant also denied to one of the authorized treating physicians that he had been involved in any other Workers’ Compensation accidents.

The Claimant actually was involved in a 2017 Workers’ Compensation claim involving bilateral eye injuries. That claim settled just one month prior to the alleged 4/9/18 date of accident. The Claimant testified during both his deposition and at an advance hearing that he injured only his left eye in the 2017 accident. He maintained these statements during cross examination at final hearing. However, the Claimant’s petitions for benefits filed in the 2017 claim clearly listed the Claimant’s injured body parts as “bilateral eyes.” Medical records from both prior authorized treating physicians indicated that the Claimant complained of pain and blurred vision in both eyes. The Judge ultimately found that the Claimant made these statements knowingly and intentionally for the purpose of securing compensation benefits in violation of § 440.105(4)(b) and concluded that the Claimant was not entitled to compensation or benefits under Chapter 440 pursuant to § 440.09(4)(a).  

Carissa Gordon v. Orange County Government

JCC Pitts: Orlando District                                            Order Date: 1/24/2019

OJCC Case: # 17-028323NPP                                        Date of Accident: 5/22/17

Claimant’s Counsel: Kristine Callagy                           E/C’s Counsel:  Karen J. Cullen

JCC Order: Click Here  

Briefly: Medical Benefits (Hindrance to Recovery & MCC)  

Summary:  The claimant, who was a correctional officer, began experiencing shortness of breath on May 22, 2017. After some investigation, the claim was accepted as compensable and the carrier authorized treatment for the claimant’s hypertension. Following several months of treatment, the claimant’s authorized treating provider recommended that the claimant be referred to a psychologist for counseling.  A psychologist was authorized by the carrier. After several visits, the authorized treating psychologist released the claimant from care and indicated that the psychological condition was no longer a hindrance to the claimant’s recovery of the underlying hypertension. Claimant then returned to his authorized treating provider who placed the claimant at MMI with a 0% impairment rating, but indicated that the claimant would need continued medication treatment for the hypertension for the rest of her life.

Despite her MMI designation and release from psychological care, the claimant believed she was entitled to continued psychological care as a hindrance to the recovery of her hypertension.  Accordingly, the claimant obtained an IME who diagnosed the claimant with major depressive disorder and opined that she needed psychological treatment and medication that could in turn treat the claimant’s blood pressure as some of the medications could also help with her hypertension. Based on a review of all the evidence, the JCC ruled in favor of the E/C and ruled that the claimant’s psychological condition had ceased to be a hindrance to the claimant’s recovery of her hypertensive condition, and any additional psychological treatment would not be related to the work accident.

Cassandra Whitfield v. Aerotek / Allegis Group Inc and ESIS WC Claims

JCC Arthur: Lakeland District                                       Order Date: 1/23/19

OJCC Case: #18-014884RAA                                         Date of Accident: 11/8/17

Claimant’s Counsel:  E. Taylor Davidson                   E/C’s Counsel:  Brian A Lowe & Meredith L. McAvoy 

JCC Order: Click Here  

Briefly: One Time Change  

Summary:  The claimant suffered a compensable workplace accident and had been receiving authorized treatment since the date of accident. After being placed at MMI, the claimant chose to utilize his one-time change in physician and faxed a request for one-time change on 5/23/18. Immediately after receiving the fax, the adjuster contacted the nurse case manager to authorize an alternative doctor for the claimant and on the same day, the carrier sent a letter to the new physician authorizing him to treat the claimant. However, the carrier utilized a third-party to notify the claimant regarding the authorization of the alternative doctor. There was a mix-up between the claimant’s address and mailing procedures. The mailing failures resulted in the claimant not receiving notification of the newly authorized physician until after the five day window had lapsed.

The E/C argued that regardless of the untimely notification sent to the claimant, the carrier authorized the one-time change doctor in a timely fashion which ultimately removed the need to notify the claimant. The JCC disagreed with the E/C and reasoned that the statute requires the E/C to notify the claimant of the new doctor within five days and ruled that the critical factor is the claimant’s knowledge. Accordingly, the JCC ruled that the E/C did not timely provide a one-time change in physician, and awarded the claimant the right to choose his own doctor.

Juan Gonzalez v. Workforce Business Services, Inc. and Zurich American Insurance Company

JCC Medina-Shore: Miami District                               Order Date: 1/18/19

OJCC Case: # 18-020308SMS                                        Date of Accident: 8/17/18

Claimant’s Counsel:     Sean Patrick Perez                  E/C’s Counsel:  Mark W. Ingram  

JCC Order: Click Here  

Briefly: Fraud/Misrepresentation, Undocumented Worker

Summary:  The claimant, an undocumented worker from Guatemala, was given a Social Security number which would allow him to work in the United States. The claimant had worked for the insured employer from 2007 up until the date of accident without incident. Claimant was injured after he fell off a roof onto the concrete ground fracturing his ribs, his left wrist, and his face for which he sought medical treatment at the hospital. After being discharged from hospital a few days after the accident, the claimant submitted to a telephonic recorded statement in which the claimant gave a different Social Security number than the one he had previously provided to the insured employer. Based on the different Social Security number, the carrier denied the claim using a fraud/misrepresentation defense.

During his testimony, the claimant indicated that he believed he had two valid Social Security numbers, the first of which he gave to the employer approximately 11 years prior to the accident when he began working, and the claimant was unaware that he was using someone else’s Social Security number. The claimant testified that he was also given an IRS individual taxpayer identification number and did not know the difference between that and the Social Security number that he previously received.

Based on these inconsistencies, the JCC found that the first prong of the fraud defense was met as the claimant’s statement in which he gave an incorrect Social Security number was a false statement. However, the JCC ruled that the second prong was not met and found that the claimant did not knowingly provide a false statement for the purpose of securing workers compensation benefits as the claimant is an uneducated individual and more than likely did not know the difference between the two numbers he was given. Accordingly, the JCC denied the E/C’s fraud defense and ruled that the claimant did not forfeit his entitlement to workers compensation benefits.

Mark Mullin v. DSK and Zurich American Insurance Company of Illinois

JCC Forte: Ft. Lauderdale District                                            Order Date: 1/22/19

OJCC Case: # 15-014600IF                                                        Date of Accident: 11/23/2012

Claimant’s Counsel:     Michael M. Riedhammer                     E/C’s Counsel:  Brian S. Rothman  

JCC Order: Click Here  

Briefly: Permanent Total Disability

Summary:  The claimant was employed with the insured employer through an employee leasing company as an automobile mechanic for 21 years. The claimant had a prior medical history of diabetes that made him blind in the left eye. He also suffered from hypertension and with bilateral foot ulcers due to his diabetes and has been treating with a podiatrist for the past 25 years. The claimant was injured in two workplace accidents with the insured, but was only seeking PTD benefits as a result of the 2012 accident involving his left knee. Since his accident, the claimant had been receiving consistent medical treatment for his left knee and also underwent arthroscopic surgery that was authorized by the carrier. At the final hearing, the claimant admitted that he was receiving Social Security disability benefits since 2013 and alleged that his disability was due to his diabetes, foot problems, and sight issues. Despite his assertion that the current disability was due to his knee injury, the claimant never included his left knee injury in his SSD benefits.

After undergoing a second surgery authorized by the carrier, the claimant was ultimately placed at MMI with a 4% impairment rating, and was given no work restrictions. Claimant continued treating with his orthopedists regarding his left knee issue, but more consistently was treating with his prior podiatrist for his bilateral feet issues resulting from his diabetic condition. Both parties obtained an IME who had differing opinions. Each party also obtained vocational experts who had slightly differing opinions regarding the claimant’s ability to obtain employment. Ultimately, the JCC agreed with the E/C indicating that there was no evidence that the claimant’s inability to work was solely based on his left knee condition and not his other underlying personal conditions. The JCC also ruled that the claimant was able to work full duty as a result of his work related accident, and found that both vocational experts agreed that there were automobile mechanic jobs within a 50 mile radius of his home. Accordingly, the JCC denied the claimant’s petition for PTD.