Briefly Speaking – Case Law Updates (4/17/19)

Marine Max, Inc. and Seabright Insurance v. Charles Blair

JCC Beck: Sarasota District                                                     Order Date: 3/7/19

DCA#:1D17-3296                                                                      Date of Accident: 5/22/17

E/C’s Counsel: Robert Griffis                                         Claimant’s Counsel: E. Christiansen

JCC Order: Click Here  

1st DCA Order: Click Here                                                     Claimant’s App. Counsel: Kim Hill

Briefly: Medical Benefits  

Summary:  The claimant suffered a compensable workplace accident after falling off of a ladder in 2010.  The claimant underwent treatment and care from 2010 through 2014 including multiple surgeries. The authorized provider was paid at fee schedule rates for some care and at higher than fee schedule rates for other care. There were no payment disputes raised. After some time passed, the claimant sought a follow up visit with the authorized provider who by that time had moved to a different practice. At the new practice, the physician required payments above fee schedule, as well as advance payment. The E/C was unwilling to pay any advances above the statutory rate, and instead chose to authorize a different physician. Claimant refused to treat with the new physician. This dispute went in front of the JCC where claimant argued that he had an existing patient – physician relationship with his authorized treating provider and that the E/C could not interfere with that relationship by de-authorizing the doctor without statutory authority. The E/C argued that the physician’s failure to agree to the fee schedule allowed the E/C to provide care by a different physician as the original physician was no longer a viable option. The JCC agreed with the claimant and ruled that the E/C’s actions were tantamount to a unilateral de-authorization, ordered the E/C to pay the new rates, and held that that the fee dispute was a separate issue and should be addressed through the Department of Financial Services.

The E/C appealed that decision, arguing that the JCC had no statutory authority to order the payment of the original authorized treating provider’s fees. The DCA agreed with the E/C in that regard. However, with respect to the continued authorization of the authorized treating provider, the court agreed with the claimant reasoning that the question of authorization of reasonable and medically necessary treatment is a separate question from whether the provider will actually render treatment based on the amount of payment.  Affirmed in part and reversed in part.

 James Barron v. Craftsmen Contractors, LLC and Starstone, Enstar U.S. Inc.

JCC Beck: Sarasota District                                         Order Date: 3/8/19

OJCC Case: # 18-019016                                               Date of Accident: 4/4/18

Claimant’s Counsel:     Yuli Kotler                                E/C’s Counsel:  Robert Griffis  

JCC Order: Click Here  

Briefly: Fraud/Misrepresentation

Summary:  The claimant alleged a workplace accident where he suffered bilateral inguinal hernias on 4/4/18 while working as a laborer for the employer. Initially, the claimant alleged a different date of accident, and then filed a motion to change it to the April 4th date. The claimant alleged that his accident occurred while moving a heavy table. According to the employer, the claimant presented for work on the alleged date of accident complaining of an ankle injury and left work early with complaints of ankle pain. Shortly after the alleged accident, the claimant underwent a drug test that returned positive results. The claimant explained that his positive drug test results were as a result of his roommates who constantly smoked around him. The claimant filed a PFB seeking compensability of the inguinal hernias. The carrier initially denied compensability of the accidents stating that the claimant was not working on the date of his accident, the injury did not arise out of the work performed, and he had a positive drug test. The carrier representative testified that it was probable that the claimant’s hernias were as a result of vomiting as medical records from the hospital indicated that the claimant had been up all night vomiting and then noticed a bulge in his lower abdomen. Additionally, once prior accidents and treatment were uncovered and the claimant made false statements during his deposition, the E/C plead the defense of misrepresentation. The JCC reviewed all of the claimant’s statements and trial testimony and ruled that even if the JCC believed that the claimant was injured in a workplace accident, the claimant made false and misleading statements in support of his claim for benefits when, despite evidence to the contrary, the claimant denied having multiple accidents and injuries and also was inconsistent regarding his date of accident. Accordingly, the JCC denied the claimant’s requests for benefits and dismissed his PFB with prejudice.

Jose Berrios v. Level Resources, LLC and Next Level Administrators, LLC

JCC Walker: Panama City District                                Order Date: 3/14/19

OJCC Case: # 18-019133                                               Date of Accident: 11/15/17

Claimant’s Counsel:     Christopher Smith                    E/C’s Counsel:  John Brady & Carrie Hixson 

JCC Order: Click Here  

Briefly: Fraud/Misrepresentation

Summary:  The claimant alleged that he sustained a work-related injury to his lower back when he lifted a recycling bin at work. During his trial testimony as well as his deposition testimony, the claimant denied having any recollection of multiple motor vehicle accidents and prior treatment to the claimant’s lower back. The claimant could also not recall whether he told his IME physician about the multiple prior motor vehicle accidents and stated “I am not as smart as you think I am.”  The claimant did testify to a subsequent motor vehicle accident in which he was treating under his auto insurance policy. In the medical records stemming from the 2018 subsequent motor vehicle accident, the claimant was questioned regarding a 2008 motor vehicle accident and the claimant again attempted to deny prior accidents stating that he was not sure where that information came from.  During the testimony of the claimant’s authorized treating physicians, both physicians found the claimant’s dramatic presentation to be suspicious, and told both doctors that prior to his accident, he had no difficulty with his lower back. Both doctors also indicated that the claimant had significant symptom magnification including yelling when the doctor performed tests that should not bother him.  Based on all of these misrepresentations, the E/C asserted a misrepresentation defense and argued that the claimant made false or misleading statements for the purpose of obtaining workers compensation benefits.

The JCC reviewed all of the medical records as well as the claimant’s deposition testimony and found that the claimant omitted his prior motor vehicle accidents which required medical treatment and ruled the automobile accidents tend to be memorable. The JCC found that even the claimant’s IME remarked that the claimant did not disclose the prior motor vehicle accidents. Accordingly, the JCC denied and dismissed all of the claimant’s requests for benefits with prejudice.

Fitzroy Salmon v. Florida Dept. of Juvenile Justice and Division of Risk Management

JCC Ring: Ft. Lauderdale District                                             Order Date: 3/7/2019

OJCC Case: # 18-012547                                                           Date of Accident: 5/30/16 & 5/13/17

Claimant’s Counsel:     Anthony Forte                                      E/C’s Counsel:  Micheal A. Edwards

JCC Order: Click Here  

Briefly: Indemnity Benefits  

Summary:  The parties stipulated that the claimant suffered compensable workplace accidents on May 30, 2016 and May 13, 2017. The parties also agreed to consolidate the two dates of accident and stipulated to the AWW for each accident. The claimant underwent medical treatment for both dates of accident, and was placed on light duty restrictions. Claimant returned to work at a light duty capacity, but was not earning 80% of his AWW.  The claimant filed a PFB in each date of accident requesting temporary indemnity benefits for the time period the claimant was placed on light duty restrictions and not earning at least 80% of his AWW.

The JCC reviewed the evidence including the medical records, wage records, and the payout ledger and found that the claimant met his burden in proving a causal relationship between the compensable injury and subsequent loss of income. The judge indicated that the burden shifted to the E/C to prove that during the period in which the lost wages were claimed, the claimant refused work or voluntary limited his own income. The E/C made no such argument and simply stated that all of the payments for indemnity benefits were made appropriately.  Accordingly, the JCC granted indemnity benefits for the requested time periods making specific findings as to what was owed during those periods after reclassifying a few overpayments made by the E/C.