Briefly Speaking – Case Law Updates (3/30/20)

Marek Krysiak v. City of Kissimmee, Toho Water Authority, Preferred Gov’t Claims Solutions

JCC Sculco: Orlando District                                        Order Date: 2/13/2020

1 DCA Case #: 1D18-5241

OJCC Case: # 18-005944                                               Date of Accident: 10/12/2016

Appellant’s Counsel:    Will B. Ramhofer;                     Appellee’s Counsel: Kristen L. Magana

JCC Order: Click Here  

DCA Opinion: Click Here

Briefly: One Time Change of Physician, Temporary Partial Disability, and Misconduct

Summary:  The claimant suffered a compensable workplace accident to his left shoulder. He was given work restrictions initially, but then was placed at MMI with no restrictions and no permanent impairment by the authorized treating provider. The claimant attempted to return to work but was terminated for violating the employer’s substance abuse policy.  Following his termination, the claimant filed a PFB seeking TPD benefits and authorization of his choice of a one-time change in physician as the E/C failed to timely respond his request.  The E/C denied the claimant choice for the one-time change and TPD benefits, They argued that the claimant acquiesced to the E/C’s choice of physician by attending appointments and that no TPD benefits were payable due to his misconduct.  The JCC ruled in favor of the E/C due to the acquiescence, and disagreed with the claimant’s argument that because they initially objected to the E/C choice and only treated with the E/C’s choice because the claimant did not have any money to treat with an unauthorized provider, there was no true acquiescence.

The first DCA affirmed the JCC’s decision, but pointed out that had the claimant attended the appointments with the E/C’s choice in protest, this case could have had a different result; the JCC refused to rule that any objection of the E/C choice would prevent any later acquiescence. With respect to the misconduct, the JCC agreed with the E/C and indicated that due to the multiple violations of the substance abuse policy, the claimant committed misconduct, and TPD benefits were denied. On appeal, the first DCA reversed the denial of the TPD benefits based on the misconduct defense, and reasoned that the JCC did not have sufficient evidence to support the fact that the claimant tested positive for alcohol, as they only relied on testimony from the employer representative who did not have any personal contact with the claimant nor were any actual drug test results admitted into evidence.

Jennifer Ortiz-Quezada v. Avis Budget Group and American Casualty Company of Reading PA

JCC Massey: Tampa District                                                     Order Date: 12/14/2020

OJCC Case: #19-021507                                                            Date of Accident: 12/22/2017

Claimant’s Counsel:     Stacy Ortiz                                           E/C’s Counsel: Morgan Indek

JCC Order: Click Here  

Briefly: Premises Rule

Summary:  The claimant worked for a rental car company within the Tampa international Airport. She reported a work place accident that she sustained while she was at lunch. The injury occurred in the airport cafeteria that is available to all airport employees. The undisputed facts established that the claimant worked an 8 hour shift and was entitled to a 45 minute lunch break in addition to two short ten minute breaks. During her lunch break, the claimant could go anywhere she wanted to, including leaving the airport without having to inform the employer where she was.

The E/C denied the compensability of the accident and argued that the accident did not occur within the course and scope of her employment and did not occur on the employer’s premises as the employer did not own, maintain, or control the area in which the claimant sustained her injury.  The claimant argued that this case fell under one of the exceptions to the premises rule; that the area where the injury occurred is actually or habitually used by the employer for its own purposes. The JCC disagreed with that argument, and ruled that the area in which the accident occurred was not used by the employer for any purpose, and the employer did not maintain or control the area.  Accordingly, the JCC denied compensability of the claim.

Frantz Pierre Eustache v. 3D Design Build, Inc. and Gallagher Bassett Services, Inc.

JCC Kerr: Miami District                                                           Order Date: 2/23/2020

OJCC Case: # 19-021682                                                           Date of Accident: 4/8/2019

Claimant’s Counsel:     Steven Wilson                                      E/C’s Counsel: Christopher McClure

JCC Order: Click Here  

Briefly: Fraud/Misrepresentation

Summary:  The claimant suffered a compensable workplace accident wherein he lacerated his right middle and right ring fingers while using a skill saw. At the time of the claimant’s deposition, there was a pending petition for TTD/TPD benefits from the date of accident and continuing, as well as authorization of medical treatment and determination of compensability.  Following the deposition, the E/C denied the claimant’s entitlement to workers’ compensation benefits, arguing that the claimant committed fraud and misrepresentation in his testimony. He had testified that he was never asked to provide nor did he ever produce a false ID for the purposes of obtaining employment, and indicated that he had only ever produced a false ID to the police one time, failing to disclose a prior arrest for shoplifting and producing the false ID.

The E/C relied on statute §440.105(4)(B)(9) which states that it is unlawful to knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of securing workers compensation benefits.  Although the JCC agreed that the claimant made several false and misleading statements, the JCC denied the misrepresentation defense, finding that the E/C failed to meet their burden of showing that these misrepresentations were specifically for the purpose of obtaining workers compensation benefits.


Rai Hall v. The Carrie Brazer Center for Autism and None

JCC Jacobs: Miami District                                                      Order Date: 2/25/2020

OJCC Case: # 19-0094739                                                         Date of Accident: 12/21/2018

Claimant’s Counsel: Anthony Forte                                         E/C’s Counsel: Gladys Lourdes Coia   

JCC Order: Click Here  

Briefly: Temporary Partial Disability, Authorization of Medical Care

Summary:    The claimant sustained a compensable workplace accident in which she injured her lower back and left leg. The claim was initially accepted as compensable for those injured body parts. She did not request any medical treatment until approximately three months after the accident as her leg remained discolored, and she was still experiencing back pain. The claimant acknowledged that she performed her normal job duties for the employer without missing any time from work during that time frame until she was terminated from her employment for unrelated reasons.  The claimant then filed a PFB for benefits and obtained an IME who opined that the claimant had lumbar radiculitis, a cervical injury, and required an MRI and physical therapy.

The E/C denied the requested benefits, arguing that the MCC of the claimant’s need for treatment was an intervening car accident that the claimant had about four months after the reported work related accident. The E/C also secured an IME who supported their position. At hearing, the JCC found the E/C’s IME to be more compelling than the Claimant’s IME and noted that the claimant failed to meet her burden of proving entitlement to workers compensation benefits.