Briefly Speaking – Case Law Updates (8/24/20)
Ivan Lopez v. Girl Scouts of Citrus Council, Inc.
JCC Sojourner: Orlando District Order date: 7/16/2020
OJCC Case: 19-015951MES Date of Accident: 3/28/2018
Pro Se Claimant: Ivan Lopez E/C’s Counsel: Morgan A. Indek
JCC Order: Click Here
Briefly: Compensability
Summary: The pro se Claimant sought compensability of hernias that he alleged were caused by a lifting accident at work. Claimant testified that he believed he may have had a hernia prior to the accident, but was not sure because he was not a doctor. Medical records indicated that the pro se Claimant told hospital providers that he had the hernia for a number of years and that it had become larger and more painful due to lifting at work. The Claimant attempted to refute this medical note via testimony. The JCC found that the Claimant, whose burden it is to establish a causal relationship between the work accident and claimed injury, failed to establish by medical evidence that lifting at work either caused the hernia or aggravated a pre-existing condition. As such, compensability was denied.
Michael Keogh v. Haifa Limestone
JCC Stephenson: West Palm Beach District Order date: 7/14/2020
OJCC Case: 19-018823 Date of Accident: 2/12/2016
Pro Se Claimant: Jeff Freidman E/C’s Counsel: Ryan M. Knight
JCC Order: Click Here
Briefly: Penalties and Interest
Summary: The parties agreed to resolve all back due indemnity benefits, inclusive of penalties and interest for $15,000.00. No timeframe for payment of this check was included in the agreement. The Claimant sought penalties and interest on top of the agreed to $15,000.00 because the payment was not made within seven days of the agreement. The Employer/Carrier argued that this lump sum resolution did not qualify as an “installment” of indemnity benefits and that penalties and interest were therefore inapplicable. The JCC agreed and ruled that without an agreed upon timeframe for payment, there was no statutory or procedural basis to award penalties and/or interest on an agreed upon lump sum resolution.
Deborah Davila v. Lowe’s Home Improvement #0740
JCC Almeyda: Miami District Order date: 7/17/2020
OJCC Case: 18-024319ERA Date of Accident: 8/8/2018
Claimant’s Counsel: Anthony Forte E/C’s Counsel: Melissa Volk
JCC Order: Click Here
Briefly: Medical Necessity/MCC
Summary: The Claimant reported a neck injury as a result of repetitive lifting at work. The Claimant began treating with an authorized provider who could not find any evidence of an acute injury on x-rays or MRIs, though there was evidence of degenerative changes. The provider recommended surgical intervention and when questioned regarding the major contributing cause of the need for the procedure, the provider could not say that the work event was more than 51% responsible for her symptoms. The Claimant’s IME provider opined that the major contributing cause of the Claimant’s cervical symptoms, along with the recommended surgical intervention, was the work accident. The provider noted that the work events worsened her pre-existing condition to the point that surgery was required. The JCC found that the E/C did not provide medical evidence to refuse the Claimant’s IME and awarded the recommended surgery.
Pablo Cruz v. Interlake Stamping of Florida
JCC Arthur: Lakeland District Order date: 7/16/2020
OJCC Case: 20-000465RAA Date of Accident: 7/26/2019
Claimant’s Counsel: Stacy Ortiz E/C’s Counsel: Neil A. Ambekar
JCC Order: Click Here
Briefly: Good Faith
Summary: The Claimant’s counsel filed a PFB for payment of TPD. As one of the defenses in the Pre-Trial, the Employer/Carrier argued at hearing that Claimant’s counsel failed to make a good faith effort to resolve the TPD issue prior to the filing of the PFB, as supported by the adjuster’s testimony. The JCC found that jurisdiction of the JCC to rule on matters is invoked by the proper filing of a PFB, which requires a good faith effort to resolve the issue be made prior to the filing of the PFB. Claimant’s counsel argued that emails were exchanged prior to the filing of the PFB, but such documents were not submitted as evidence and Claimant’s counsel’s argument alone was not sufficient to show good faith effort. Accordingly, the JCC found that the Claimant failed to comply with the requirements of §440.192(4), and as such, the JCC lacked jurisdiction over the issues and dismissed the PFB without prejudice.
Dianne Alexander v. St. Lucie Public Schools
JCC Owens: Port St. Lucie District Order date: 7/13/2020
OJCC Case: 19-013133KFO Date of Accident: 12/11/2018
Claimant’s Counsel: Charles Wade E/C’s Counsel: Gary M. Schloss
JCC Order: Click Here
Briefly: One Time Change
Summary: The Claimant’s counsel requested in writing a one-time change in pain management physician for the Claimant. The adjuster responded the following day that a new provider had been authorized, and named the new provider, but had not yet verified that the new provider would take the patient. After a month of waiting for the provider to review the records and make a determination regarding acceptance of the patient, the new provider refused to treat the patient because the injured worker was not interested in injective therapy and the provider was unwilling to prescribe pain medications across county lines. A new provider was found and an appointment was made. The Claimant refused to treat with the new provider and asserted her right to choose a new doctor on the basis that the provider authorized within 5 days was not the provider with whom she was to treat. The JCC analyzed whether the one -time change doctor actually provided to the claimant must be the same doctor initially identified by the employer/servicing agent within five days of the request for a change and found that in order to retain the right to choose a treating physician, the physician actually provided must be the same physician that the employer /servicing agent identify within five days. Claimant’s alternative argument was that the doctor was not timely provided, to which the JCC agreed, as 56 days had passed between the request for a new provider and the date of the first appointment, and noted the lack of effort on the part of the carrier to follow up with the provider during the month delay in determining whether to accept the patient. Accordingly, the JCC found that the Claimant was entitled to pick the new pain management provider.