Briefly Speaking – Case Law Updates (3/12/19)

Swilley, Stephanie vs. Dillards, Inc.

JCC Holley: Jacksonville District                     Order Date: 2/28/2019

OJCC Case:   11-024583WRH                      Date of Accident: 9/10/2010

                        12-002849WRH                                                     1/7/2012

Claimant’s Counsel:  John Rahaim II       E/C’s Counsel:  Thomas Portuallo

JCC Order: Click Here

Briefly: Permanent Impairment Benefits   

Summary:  Claimant was placed at MMI “from a surgical point of view” in 2013 and assigned a 44% permanent impairment rating when she elected not to go forward with any further surgery of the lumbar spine. The provider noted that MMI would be rescinded if Claimant elected to undergo the recommended surgical procedure.  An EMA later agreed that Claimant was at MMI unless she elected to undergo further surgery, in which case, MMI would be expected some 12 to 18 months later. Claimant underwent additional surgery of the low back in September of 2018. IBs on the 44% impairment rating had not yet been paid. The issue at trial was whether impairment benefits were due for a period from March 14, 2013, through January 5, 2017. The JCC held that, because Claimant underwent the recommended surgery, which all relevant providers indicated would result in MMI being rescinded, and because Claimant had not been placed at MMI by her pain management provider, Claimant was not at overall MMI, and permanent impairment benefits were not ripe, due, and owing for the adjudicated period.

Cochran, Aaron vs. Miami-Dade County Public Schools

JCC Jacobs: Miami District                 Order Date: 2/28/2019

OJCC Case:   13-028700JIJ                          Date of Accident: 5/23/2013

                                17-019503JIJ                                                        10/10/2016

Claimant’s Counsel:  Albert Marroquin          E/C’s Counsel:  Christopher L. McClure

JCC Order: Click Here

Briefly:  Medical Benefits & 120 Day Rule   

Summary:  Claimant injured his left knee and right hip while working for the insured, and was placed at MMI for these injuries by his authorized provider. Claimant requested a one-time change, and the new physician agreed with MMI and opined that Claimant’s continued need for treatment of the left knee was related to his pre-existing arthritis and the right hip did not require any further care. Further care/benefits were later denied in a response to a PFB. Claimant obtained an IME, the provider for which opined that Claimant was not at MMI and needed further treatment as related to the work accident. Despite knowledge of pre-existing conditions at the inception of the claim, Claimant was not informed that the carrier was picking up the claim under the 120 day rule. All treatment was authorized and Claimant received benefits through MMI until the provider opined the work accident was not the MCC of the need for further treatment.  Claimant argued that estoppel prevented the E/C from denying compensability, stating such a right was waived by failing to deny compensability within 120 days of initial provision of benefits. The JCC found that E/C failed to deny compensability within 120 days of initial provision of benefits and failed to deny compensability again within 120 days of having actual knowledge that the work accident was no longer the MCC of the continued need for treatment, thus finding that E/C waived the right to deny compensability of the left knee and right hip. As such, Claimant was entitled to follow up care.

Donnell, Kimberly B. vs. 9East Investments, LLC dba Florida Liquors

Judge Sojourner: Orlando District                  Order Date: 3/1/2019

OJCC Case:   18-014780MES                       Date of Accident: 11/27/2017

Claimant’s Counsel:  Charles Smith             E/C’s Counsel:  Justin Crum

JCC Order: Click Here

Briefly:  Compensability    

Summary:  Claimant was working behind the counter at a liquor store when the store was robbed at gun-point. Claimant was told to get on her knees and hand over the money from the lottery register. She was then escorted with a gun at her back to the store safe. Claimant testifies that she was pushed and hurried, and forced onto her knees during the robbery. A few weeks later, Claimant presented on her own to a local medical clinic reporting back spasms and anxiety; there was no mention in medical records of any injury on the skin, bruising, or edema. Claimant was diagnosed with muscle spasms and anxiety disorder, and the muscle spasms were noted to be non-traumatic. Claimant then sought care at a different clinic, reporting that she injured her back and neck and was suffering headaches after being forced down and dragged through the store during a robbery. Claimant then sought an IME, reporting that she was forced down and pushed violently at gun point, and the IME provider diagnosed Claimant with disc abnormality in the cervical spine. Claimant failed to report to her IME provider a subsequent injury when soda displays in a grocery store fell on her, injuring her neck and back. Claimant seeks compensability of her injuries as related to the robbery. Video evidence of the robbery did not support Claimant’s allegations of violent pushing/dragging through the store. Claimant did have back spasms following the injury, but the only opinion correlating the spasms to the robbery were those of the IME provider, which were rejected as they were based on incorrect descriptions of the accident and did not include information regarding the subsequent injury. The JCC thus found that there was no accompanying physical injury requiring treatment, such that the accident/injuries were not compensable.

Crispin, Phyllis A. vs. Orlando Rehabilitation Group dba Clermont Nursing & Rehab Ctr

JCC Sojourner: Orlando District                     Order Date: 2/20/2019

OJCC Case:   12-009053MES                       Date of Accident: 4/18/2011

Claimant’s Counsel:  William G. Berzak        E/C’s Counsel:  Scott B. Miller

JCC Order: Click Here

Briefly:  Permanent Total Disability     

Summary:  Claimant was accepted as PTD in 2012 at the age of 73. Subsequently, in 2014, the provider performed right shoulder surgery and rescinded MMI. E/C paid PTD benefits continuously for 5 years from the date of acceptance of Claimant as PTD. Claimant argued that PTD benefits should have been suspended and temporary benefits paid during the time MMI was rescinded, then PTD benefits should have resumed after MMI was again reached. The JCC found that PTD benefits are not cumulative in nature, and are limited to payments for 5 calendar years after a 70-plus year old Claimant is accepted as PTD, as the statute is restrictive in nature and terminates eligibility within 5 years of determination of MMI.