Briefly Speaking – Case Law Updates (5/8/19)

Falk, Kurt vs. Harris Corporation

First DCA Judges: Lewis, Winsor, Thomas           Order Date: 4/11/2019

JCC Dietz: Sebastian/Melbourne District               Order Date: 5/10/2018

OJCC Case:   13-028933RLD                                       Date of Accident: 11/12/2011      

Appellants Counsel:   Brigitta Hawkins                    Appellee’s Counsel:  James M. Hess

                                              Bill McCabe

JCC Order: Click Here

Appellate Order: Click Here

Briefly: EMA  

Summary:  Claimant appealed an order denying PTD and impairment benefits on the basis of the opinion of an EMA that had deferred to another physician regarding Claimant’s head injury and seizure disorder. Three separate neurosurgeons had given different opinions about these conditions, leading to the appointment of an EMA. The EMA provided an opinion about less significant injuries that had not been addressed by previous providers but deferred to a prior neurologist regarding all other aspect of Claimant’s head injury. The JCC accepted this decision as an “indirect” response to the disagreement of the providers. The DCA disagreed, noting that the EMA failed to offer an independent opinion regarding the head injuries, or any opinion that the doctor to whom the EMA deferred was correct, and noted that blanket deference is not an EMA opinion. The DCA reversed the JCC’s order and remanded the case for appointment of an alternate EMA.

Jones, Patrick Shawn vs. Grace Healthcare Center

JCC Massey: Tampa District                                   Order Date: 4/9/2019

OJCC Case:   03-025539MAM                                Date of Accident: 6/18/2001      

Claimant’s Counsel:  Bradley G. Smith                   E/C’s Counsel:  Christopher J. Dubois

JCC Order: Click Here

Briefly:  Medical Marijuana    

Summary:  Claimant injured his low back in a compensable work accident and was eventually diagnosed with chronic pain syndrome for which he treated with an authorized pain management physician. Claimant sought to try medical cannabis in lieu of oral pain medications. The provider then hand-wrote a note regarding his inability to prescribe medical cannabis and suggested Claimant see another physician for same. Claimant filed a petition requesting the referral be authorized, and E/C denied same on the basis that medical marijuana is not payable or reimbursable under Chapter 440 of the Florida Statutes. The JCC agreed, noting that Florida Statute 381.986 specifically states that marijuana is not reimbursable under Chapter 440, and read the statute to include any initial or subsequent evaluations for the purpose of obtaining medical marijuana. Judge Massey specifically held that “[m]edical marijuana is not an awardable benefit under the Florida Workers’ Compensation Act and is expressly excluded from workers’ compensation by statute.”

Massillon, Robert vs. American Freight Furniture  

Judge Dietz: Sebastian/Melbourne District              Order Date: 4/5/2019

OJCC Case:   18-015694RLD                                  Date of Accident: 6/4/2018

Claimant’s Counsel:  David E. Mallen                     E/C’s Counsel:  Peter R. Parzygnat

JCC Order: Click Here

Briefly:  Attendant Care

Summary:  Claimant sought payment of attendant care for assistance from his mother in bathing, dressing, driving, and changing bandages after Clamant fell at work leading to inability to use both shoulders and one arm. E/C denied this benefit on the basis that there was no medical evidence to indicate the need for attendant care and no prescription for attendant care furnished to the carrier. Claimant’s provider had executed FMLA documentation for Claimant’s mother on the basis that he would need assistance with the activities of daily life following surgery right after the date of accident. The JCC opined that receipt of this was sufficient to place the E/C on notice of the need to investigate Claimant’s need for attendant care, as was the scheduling of the authorized surgery. The JCC noted that the E/C has a duty to monitor a claimant’s injuries and provide needed benefits, and there was no evidence of any action taken by E/C to investigate the need for attendant care or advise Claimant of his right to same. The JCC also opined the FMLA documentation was sufficient under the writing requirement for attendant care and awarded same.

Stephens, Thomas L. vs. Panama Business Machines Incorporated

JCC Walker: Panama City Beach District               Order Date: 4/16/2019

OJCC Case:   18-024428JW                                     Date of Accident: 7/12/1991

Claimant’s Counsel:  John Moneyham                    E/C’s Counsel:  Matt Jones

JCC Order: Click Here

Briefly:  Statute of Limitations      

Summary:  Claimant sought treatment with a previously authorized pain management provider and E/C denied same on the basis that the 2-year statute of limitations (SOL) had run on the file. Claimant argued at trial that he was never given an informational brochure and was not informed of his rights regarding the SOL. The E/C countered that Claimant was the president of the insured company, and as such, was the Employer, giving him actual knowledge of his rights under workers’ compensation laws. According to the adjuster’s deposition testimony, there was no evidence in the file materials that any party/person/entity had ever advised Claimant regarding the SOL. This shifted the burden of proof to the E/C to show that Claimant had actual knowledge of the applicable SOL, which the JCC opined E/C failed to establish. The JCC found Claimant’s testimony compelling that, had Claimant known of the SOL, he would have made appropriate appointments, but instead assumed he was still able to treat as his company continued to pay for workers’ compensation benefits. The JCC thus found that the E/C was estopped from raising the SOL defense and awarded the requested pain management evaluation/treatment.