Briefly Speaking – Case Law Updates (7/22/19)

Phillips, Patricia vs. Leon County Public Works & Preferred Government Claims Solutions & Mary Elizabeth Cruickshank

First DCA Judges: Makar, Winokur, & Thomas    Order Date: 7/9/2019

JCC Lazzara: Tallahassee District                           Order Date: 10/15/2018

OJCC Case:   14-028030JLN                                               Date of Accident: 6/26/2012        

Appellants Counsel:   Randall T. Porcher                 Appellee’s Counsel:  Mary Cruickshank

JCC Order: Click Here

Appellate Order: Click Here

Briefly: Sanctions  

Summary:  Claimant’s Attorney (C/A) filed a Motion for Protective Order for communications between herself and a fee expert that was denied in part by the JCC. In the order on this Motion, the JCC gave C/A the opportunity to produce a Privilege Log for the alleged confidential communications. C/A failed to do so, but instead produced some documents at the fee expert’s deposition. Defense counsel subsequently filed a Motion for Sanctions pursuant to F.S. 440.32(3), which states that by signing the motion for protective order, defense counsel had certified that the motion was grounded in fact and warranted by existing law or a good faith argument, and not for any improper purpose like delay or harassment. The provision further states that the JCC, on motion or on its own initiative, shall impose appropriate sanctions if the statute is violated. At the hearing on the motion for sanctions, defense argued that the motion for sanctions was untimely because rule 60Q-6.125(4)(a) creates a 21-day “safe harbor” to allow for withdrawal or correction of sanctionable pleadings, and that Claimant would have had to file the motion for sanctions while the motion for protective order was pending to be timely. The JCC agreed with defense counsel, and Claimant appealed. The first DCA ruled that the 21-day “safe harbor” does not apply to the extent that it would preclude the filing of a motion for sanctions under 440.32(3), as the statute mandates sanctions in the event of a violation and sanctions are not subject to any specific time limitation other than pendency of litigation. The case was remanded for the JCC to address the sanctions request.

Long, Shanteria vs. White Stone Foods LLC

JCC Ring: Ft. Lauderdale District                           Order Date: 7/1/2019

OJCC Case:   18-027566MJR                                  Date of Accident: 10/29/2018        

Claimant’s Counsel:  Grethel San Miguel-Callejas            E/C’s Counsel:  Robin Ross

JCC Order: Click Here

Briefly:  Indemnity/AWW

Summary:  Claimant suffered a compensable burn and did not return to work for 18 days. Claimant requested payment of TTD benefits for the first 7 days of disability, and E/C denied same on the basis that Claimant had not exhausted the 21-day requirement and was thus not entitled to TTD for the first 7 days following the accident. Claimant argued that she could not perform her job duties for 4 days after her return to work, and thus the 21-day requirement was met. The JCC ruled that the correct analysis is to determine if Claimant was precluded from performing a substantial and significant portion of her necessary job duties due to the injury. Because Claimant remained physically capable of performing substantially all of her regular job duties, she was not found to be disabled for 4 additional days following her return to work, and thus failed to meet her burden of proving entitlement to TTD benefits. Claimant also argued that her post-accident raise rate should be used to calculate her AWW, but the JCC disagreed, as Claimant had worked substantially all of the 13 weeks preceding her accident, such that use of her pre-accident wages was appropriate.   

Bagetis, Gregg vs. Garyjames, Inc. dba Labor Finders

Judge Arthur: Lakeland District                               Order Date: 7/5/2019

OJCC Case:   17-014527RAA                                  Date of Accident: 11/9/2016

Claimant’s Counsel:  Nora Leto                               E/C’s Counsel:  Gina M. Jacobs

JCC Order: Click Here

Briefly:  Fraud/Misrepresentation  

Summary:  E/C denied entitlement to future benefits based on a misrepresentation defense, arguing that the Claimant’s deposition testimony regarding his abilities was inconsistent with conduct seen on several separate days of surveillance in which Claimant was found golfing. Claimant testified that he was unable to stand for more than 15 minutes before needing to sit down; that bending at the waist increased his back pain; that he could not work at a part-time job that required bending, stopping, or lifting more than 10-20 pounds; and that he could not perform any kind of work until his injury was fixed. The JCC viewed the surveillance video and noted that the activities seen therein did not contradict his testimony, as Claimant did not stand/walk in excess of 15 minutes without sitting down and his movements throughout the footage appeared restricted and difficult. The JCC found that Claimant’s ability to play golf 3 times in 9 weeks was not proof of an ability to work consistently on a regular basis and was thus not proof of a false or misleading statement. E/C was ordered to reinstate reasonable and medically necessary treatment. 

Gomez-Medero, Yoel vs. ABM Aviation, Inc.

JCC Massey: Tampa District                                   Order Date: 7/5/2019

OJCC Case:   18-012670MAM                                Date of Accident: 2/10/2018

Claimant’s Counsel:  Michael J. Winer                   E/C’s Counsel:  Mary Frances Nelson

JCC Order: Click Here

Briefly:  EMA/Authorization of Medicare Care

Summary:  Claimant was placed at MMI with a 0% PIR following the authorized provider noting symptom magnification. Claimant subsequently obtained an IME, and the IME provider recommended LESIs and 4-6 weeks of physical therapy. Claimant’s counsel filed a PFB for these benefits 2 months after the IME. Claimant’s counsel then requested appointment of an EMA nearly 7 months after the IME. The JCC denied this request as untimely, noting that the conflict in medical opinions was evident at the time of the IME, as authorized providers had already opined that no further treatment was warranted, and further still at the time the PFB was filed, and that the request was not made with reasonable promptness after the conflict in medical opinions was apparent. The JCC accepted the medical opinions expressed by the authorized providers as to Claimant’s need for continued medical care, as Dr. Smith admitted in deposition that most of his findings were subjective and all objective clinical testing was normal, and denied Claimant’s request for authorization of injections and physical therapy recommended by the IME provider.