Briefly Speaking – Case Law Updates (8/3/20)

Donald Barry v. B Hoover Ventures Inc. and Employers Preferred Insurance Company

JCC Humphries: Jacksonville District               Order Date: 6/19/2020

OJCC Case: # 19-028179                                               Date of Accident: 10/16/2019

Claimant’s Counsel:     Yuli Kotler                                 E/C Counsel: Colin J. McLean

JCC Order: Click Here  

Briefly: No Accident/Injury

Summary:  The claimant alleged he suffered a work-related accident while leaning into the deep freezer after hearing two popping sounds and subsequently experiencing pain in his left rib cage area. The E/C denied compensability of the accident arguing that there was no evidence to establish an actual injury occurred. The unauthorized primary care physician claimant saw did not identify any objective medical findings. Although the claimant’s IME physician opined that the claimant’s injuries were causally related to the work accident, the doctor was unable to articulate any objective findings during his examination of the claimant. The E/C IME likewise opined that there were no objective medical findings in either of the doctor’s examinations. Ultimately, the JCC determined that based on the primary care physician as well as the E/C’s IME opinion that there was no actual injury, the JCC denied compensability of the accident as well as the corresponding benefits. The JCC reasoned that because there was no objective medical evidence of an injury, the claimant failed to meet his burden of proof.

Devon Terry v. C & S Wholesale Grocers and CCMSI

JCC Massey: Tampa District                                                     Order Date: 6/19/2020

OJCC Case: #19-025581                                                            Date of Accident: 2/13/2018

Claimant’s Counsel:     Michael L. Cantrell                                 E/C’s Counsel: Jennifer  Reimsnyder

JCC Order: Click Here  

Briefly: Arising out of/course & Scope

Summary:  The claimant worked for the employer as a forklift operator and also was an active member of the Navy reserves. The claimant alleged that he had an accident while at work where he injured his right leg and groin area, but throughout the litigation alleged different dates of accident. The claimant initially reported a claim in March of 2018 and indicated that the accident occurred back in February. The claimant was unable to articulate exactly how the accident occurred in the incident report, and specifically indicated that he did not know how his accident happened, but he could have injured himself while performing exercises at home. The E/C authorized an urgent care provider under the 120-day pay and investigate provision. The claimant denied having any work-related injury or incident that could be the cause of the tightness in his right groin to the urgent care physician. As such, the urgent care documented that the groin pain was not W/C related. Additionally, on the same date he visited the urgent care clinic, the claimant went to Lakeland Regional Hospital where his chief complaint was right groin pain, but did not mention any accident or incident occurring at work. Based on that medical note and their investigation, the E/C denied compensability of the claim and argued that there was no evidence the claimant suffered any injury while in the course and scope of his employment, and his condition was related to his personal activities and not his employment. At final hearing, the claimant attempted to explain and justify the inconsistencies within his reporting of the accident to the employer as well as the medical providers, and the judge was not persuaded by his explanations. In addition to these inconsistencies reporting the accident, the claimant also left out pertinent information when giving his history to the claimant’s IME. After reviewing all of the medical evidence as well as all the testimony and exhibits, the JCC agreed with the E/C and found that the claimant failed to meet his burden of proving that he was involved in a compensable work-related accident

Fernando Elias v. YRC Freight-Miami and Sedgwick CMS

JCC Medina-Shore: Miami District                                            Order Date: 6/22/2020

OJCC Case: # 19-021682                                                           Date of Accident:6/28/2015 & 7/6/2019

Claimant’s Counsel:     Martha Fornaris,                                    E/C’s Counsel: Scott B. Miller

Grethel San Miguel

JCC Order: Click Here  

Briefly: Statute of Limitations, Estoppel

Summary:  The claimant was injured in a work-related accident in June of 2015 where he injured his right leg while unloading merchandise from a trailer. The claimant was initially seen by an orthopedist, and eventually placed at MMI with a 0% PIR. After a PFB was filed and then subsequently voluntarily dismissed, the claim was administratively closed by the OJCC and all events were canceled. The claimant then subsequently filed a PFB on 8/13/2019 requesting additional benefits alleged to be due. The E/C argued that the statute of limitations had run as it had been almost 4 years since anything was filed on the claim. The claimant attempted to argue that the notice of voluntary dismissal filed back in 2015 reserved jurisdiction on attorney’s fees and costs, but upon review, the judge disagreed with the claimant. The claimant argued that the E/C was estopped from asserting that the statute of limitations had run arguing that the E/C failed to pay claimant indemnity benefits, and failed to properly authorize additional body parts that were initially injured in the date of accident. The claimant also asserted that the E/C made misrepresentations to the claimant regarding additional indemnity benefits as well as medical care, and that he detrimentally relied upon that information. Based on all the above, the JCC agreed with the E/C and reasoned that because it had been almost 4 years since any petition had been filed, as well as the fact that he was represented by counsel, he failed to establish the elements of estoppel. As such, the E/C’s statute of limitations defense was sustained.

Lucy Quinones v. Sodexo, Inc. and Gallagher Bassett Services, Inc.

JCC Humphries: Gainesville District                                         Order Date: 6/23/2020

OJCC Case: # 19-029727                                                           Date of Accident: 3/26/2019

Claimant’s Counsel:     Michael D. Rudolph                               E/C’s Counsel: Thomas G. Portuallo

JCC Order: Click Here  

Briefly: Major Contributing Cause, Authorization of Medical Care

Summary:  The claimant suffered a compensable workplace accident and had a subsequent compensable fall. The claimant injured multiple body parts including her left shoulder and bilateral knees. Although it was a compensable claim, the E/C specifically denied any injury to the left elbow and cervical spine as the major contributing cause was not the workplace accident. The E/C’s argument stems from the fact that following the subsequent injury, the claimant denied or failed to mention any issues or pain with respect to her neck or her left elbow to anyone, including the urgent care provider. The claimant argued that by virtue of having an accident, she was entitled to an evaluation of the additional body parts in an effort to determine if an injury existed and to determine whether the injuries were related to workplace accident. The JCC disagreed with the claimant, and ruled that there was no documentary evidence in the medical records, and furthermore the medical records strongly indicated that elbow and the neck were not symptomatic following the subsequent fall. The JCC denied medical care or treatment for the claimant’s cervical spine and left elbow.