Briefly Speaking – FL Case Law Summaries (11/12/18)

Ashline, Judith vs. Texican Inc.

JCC Winn: Pensacola District                            Order Date: October 25, 2018

OJCC Case: 17-026985NSW                              Date of Accident: October 25, 2016

Claimant’s Counsel: J. Rod Cameron                E/C’s Counsel:  Tara L. Said

JCC Order: Click Here

Summary: Fraud/MisrepresentationClaimant was on a work trip when she was involved in a motor vehicle accident, resulting in compensable injuries to the neck and back. At the claimant’s deposition, she denied any prior workers’ compensation claims, any prior treatment for neck or back problems, any pre-existing medical conditions, as well as any diagnoses/treatment for alcohol/drug problems. After delays in obtaining discovery, E/C received records revealing that Claimant had two prior workers’ compensation claims, one involving injuries to the neck; that Claimant treated for fibromyalgia, including neck and back pain, prior to the accident; and that Claimant had an extensive history of treating for alcohol abuse, with hospitalization for the same just several weeks after the industrial accident. Claimant’s authorized treating provider recommended Claimant undergo lumbar epidural steroid injections and a cervical fusion and, through her counsel, Claimant filed a PFB for same. The E/C denied the injections and fusion on the basis of misrepresentation. When confronted with the misrepresentations at trial, Claimant stated that she “failed to recall” these prior incidents, suggested that they were trivial, and testified that she may be suffering from early onset Alzheimer’s, but failed to offer any medical evidence to support this diagnosis. The JCC agreed that it is possible to forget every visit to a doctor for treatment, but noted that prior hospitalization for alcohol abuse is of such significance that it would be remembered, especially when such events occurred after the motor vehicle accident resulting in the injuries at issue, for which Claimant had excellent recall. The JCC opined that Claimant knowingly and intentionally made false and misleading statements in order to secure workers’ compensation benefits. All benefits were denied.

Briseno, Teodolfo vs. Kelly Roofing, LLC

JCC Weiss: Ft. Myers District                            Order Date: October 25, 2018

OJCC Case: 18-003901JAW                               Date of Accident: January 5, 2018

Claimant’s Counsel: Victor M. Arias                  E/C’s Counsel:  Mary Frances Nelson

JCC Order: Click Here

Summary: Medical Benefits Claimant presented without his attorney for final hearing on a PFB requesting authorization of a prescription for Naprosyn, as well as attorney’s fees and costs. Claimant provided a prescription from his authorized provider for the medication. E/C noted that there was no pending request for authorization of the prescription, stating that Claimant could have filled the prescription at a pharmacy. Claimant noted for the first time at hearing that he had filled the prescription at a pharmacy, but that he had to pay out of pocket for same. E/C argued that they had no knowledge of this until Claimant reported same at the final hearing. Claimant failed to offer any evidence of his out of pocket expense at the hearing. As the PFB was for authorization of the Naprosyn, and there was no evidence that the E/C had ever denied authorization, the claim for authorization, as well as attorney’s fees and costs, was denied. The JCC noted that, even should the request be construed to be for reimbursement, the Claimant failed to provide evidence as to the amount.

Emmanuel Jaen-Sanchez V. E1: Montway, E2: Direct Express, E3: Power2Ship, E4: TIO Hauling and C1: Liberty Mutual, C2: Technology Insurance

JCC Kerr: Miami District                                    Order Date: October 24, 2018

OJCC Case: 17-019180                          Date of Accident: July 24, 2017

Claimant’s Counsel: Cory Schnepper                E/C’s Counsel:  Ryan Knight

JCC Order: Click Here  

Summary: Employer/Employee RelationshipThe claimant was hired by Tio Hauling to drive a tractor-trailer of motor vehicles from Florida to Las Vegas, Nevada. The claimant was injured while unloading these cars in Las Vegas. The claimant attempted to establish that Montway Inc., Direct Express, and Power2Ship were each the claimant’s statutory employer because each company allegedly subcontracted its contractual obligation to transport the vehicles to Tio Hauling. However, based on the testimony of each of the employer representatives, the judge determined that each company was functioning as a transportation broker rather than a shipping company. As a broker, each employer’s obligation to the customer was simply to locate a motor carrier to then transport the vehicle. At no point did any of the employers have a contractual obligation to physically transport the vehicle. Therefore no duty was subcontracted to either Tio Hauling or the claimant. Montway Inc.’s contractual language was particularly persuasive on this issue,Customer further agrees and understands that Montway Inc.’s sole responsibility in the transaction between the customer and Montway Inc. is to procure a carrier for shipment of the customer’s property. Customer understands that Montway never takes possession of, transports, or delivers the Customer’s property.” Because none of the employers could be deemed the claimant’s statutory employer and compensability was denied.

Howard, Samuel vs. City of Tallahassee

First DCA Judges: Makar, Osterhaus, Jay          Order Date: October 15, 2018

JCC Lazzara: Tallahassee District                      JCC Order: November 30, 2017

OJCC Case:      16-029689JLN                            Date of Accident: April 30, 2004

Claimant’s Counsel:     Michael J. Winer & Timothy R. Whitney

E/C’s Counsel: Christopher J. DuBois & Mary E. Cruickshank    

JCC Order: Click Here

Appellate Order: Click Here

Summary: 120 Day RuleThe E/C accepted compensability of Claimant’s 2004 accident and injuries until February 2016, when the E/C filed a denial of entitlement to any further treatment on the basis that the workplace accident was no longer the MCC of the need for ongoing treatment. A PFB was filed for entitlement of ongoing medical treatment and compensability of the 2004 accident. In the initial Pretrial Stipulation, Claimant did not mention anything about the E/C’s failure to invoke the 120 day Rule. In a Supplemental Pretrial Stipulation, the Claimant now asserted that the E/C had waived the right to deny ongoing treatment under the 120 day provision. In the Interim Final Order, the JCC ruled that the amendment was improper as 60Q-6.113(2)(a) notes that all available defenses not raised in the pretrial stipulation are waived unless good cause is shown. Amendment of the stipulation will be accepted only if it clarifies claims/defenses pled in the original. No new claims or defenses can be raised, absent agreement of the parties, unless the JCC permits same for good cause. The JCC found that Claimant failed to show good cause. The First DCA disagreed with the finding that the Supplemental Pretrial was improper, pointing out that the parties had agreed in the Uniform Statewide Pretrial Stipulation that the parties may amend the pretrial stipulation up to 30 days prior to final hearing without motion for leave of court. The DCA found the stipulation to be controlling and remanded the decision for the JCC to determine if the E/C failed to deny the claim within 120 days of learning that the MCC of Claimant’s condition may not be the industrial accident.