Briefly Speaking – FL Case Law Summaries (12/10/18)

Stephanee Rose vs. Universal Health Services, Inc./Wekiva Springs Hotel

JCC Humphries: Jacksonville District                 Order Date: November 19, 2018

OJCC Case: 18-010754RJH                                Date of Accident:  March 8, 2018

Claimant’s Counsel: Damon Pichoff                   E/C’s Counsel:  Michael C. Crumpler

JCC Order: Click Here

Briefly: Compensability (Going and Coming)

Summary:  Claimant sustained an injury in a fall while walking to her vehicle after completing her shift at work with the employer. Claimant alleged she fell due to a broken piece of asphalt, and claimed that her injury was compensable under the “special hazard” exception to the going and coming rule. At the time of the fall, Claimant was not aware of any issues with the roadway that would lead to injury, but she went back a week later and discovered a loose piece of asphalt the size of a pebble, noting that this was the only explanation she could present for her fall. No other debris or hazards were noted at the accident site. The JCC was not convinced that Claimant fell due to the allegedly loose piece of asphalt, noting that Claimant failed to present competent evidence of same. The JCC also determined that a loose piece of asphalt would not constitute a special hazard, as photographs of the accident site showed no debris, potholes, or hidden dangers that would constitute a dangerous or hazardous circumstance prior to the fall. As such, compensability of the injury was denied.

Ionel Magdalinis v. Brilliant Blue, LLC.

JCC Jacobs: Miami District                              Order Date: November 16, 2018

OJCC Case: 18-018186JIJ                                  Date of Accident:  April 9, 2018

Claimant’s Counsel: Scott Cohen                    E/C’s Counsel:  Ryan Knight

JCC Order: Click Here  

Briefly: Advance

Summary: Claimant requested an advance in relation to an alleged eye injury sustained on April 9, 2018. Employer/Carrier defended on the grounds the Claimant did not actually sustain an injury and, therefore, could not show any reduction in income as a result of the alleged accident. Claimant denied the existence of any prior eye injury during his deposition and to both authorized treating physicians. This was contradicted by the fact the Claimant settled a prior Workers’ Compensation eye claim just one month prior to the alleged April 9, 2018 date of accident. The judge found that the Claimant was not a credible witness based on his candor and demeanor while testifying at the hearing and falsely denying the prior eye injuries to Dr. Potash and Dr. Vo.” The Judge determined the Claimant failed to show that he sustained an injury while at work and that such alleged injury resulted in a diminished earning capacity. Advance denied.

Angel Gilbert vs. Troon Golf, LLC

JCC Weiss: Ft. Myers District                Order Date: 11/19/2018

OJCC Case: 18-010463JAW                   Date of Accident: 11/13/2017

Claimant’s Counsel: Martha Fornaris     E/C’s Counsel: Jonathan Cooley, Christina Salameh

JCC Order: Click Here

Briefly: Average Weekly Wage & Temporary Partial Disability

Summary:  Two issues were brought before the JCC as to determination of claimant’s AWW. Claimant argued that his AWW should include a pro rata share of a year-end bonus Claimant received after the date of accident, resulting in a higher AWW. The E/C argued that the paid time off Claimant utilized in the 13 weeks prior to the date of accident was a fringe benefit, and should not be included in the AWW calculation, resulting in a lower AWW. The JCC determined that paid time off actually paid to the Claimant in the 13 weeks prior to the date of accident is properly included in the AWW, and rejected the E/C’s argument to lower the AWW. Because the Claimant failed to cite any authority allowing the JCC to include monies in the AWW calculation that were paid after the industrial accident, and because the bonus was discretionary and not all employees received same, the JCC rejected Claimant’s argument in favor of increasing the AWW to include a pro rate share of same. Claimant also requested payment of TTD/TPD benefits, but failed to produce evidence that Claimant was ever taken out of work for TTD to be due or owing. Claimant further argued that the 80/80 formula for determining owed TPD should not include paid time off. This was not properly pleaded prior to hearing, but the JCC held that paid time off included in the AWW calculation would likewise be counted as earnings in determining owed TPD.

Jame Kinard vs. AT&T

JCC Holley: Jacksonville District                        Order Date: 11/21/2018

OJCC Case: 18-005771WRH                              Date of Accident: 8/29/2017

Claimant’s Counsel: Cynthia L. Denker              E/C’s Counsel:  Carla C. Wester

JCC Order: Click Here

Briefly: Expert Opinion Testimony

Summary:  As a preliminary matter, Claimant sought to strike the IME provider’s testimony on the basis that the amount of money the doctor was paid exceeded more than $200 an hour in violation of F.S. 440.13(10), and that VA records furnished for the IME were not provided to Claimant prior to the IME provider’s deposition. The JCC determined that the statutes do not provide that the JCC should strike the IME testimony on the basis of provider payment, as the remedy would be limiting reimbursable taxable costs to $200 an hour. As for the VA records, the JCC determined that any prejudice caused by failing to provide the records prior to deposition was mitigated by the inclusion of a summary of the records in the IME report, furnished prior to the deposition, and Claimant’s objection to the IME provider’s testimony was overruled. E/C objected to medical records that were attached to a Notice, as opposed to a Motion to Admit, but the JCC also overruled this objection, noting that the E/C was aware of the Claimant’s intent.

As to the substance of the claim, Claimant injured his back in a compensable motor vehicle accident while working for the Employer. Claimant had a prior back injury sustained in a parachute accident while in the military some 15 years prior. Claimant’s authorized medical provider recommended Claimant undergo an L5-S1 hemilaminectomy and discectomy. E/C obtained an IME, and the provider noted that Claimant needed to undergo the recommended procedure, but would not determine MCC until after reviewing prior records of medical treatment. After reviewing VA records regarding the prior back injury, the IME provider noted that Claimant’s injuries were only progressive degenerative changes over an 8-9 year period, and that the MCC of Claimant’s complaint was the result of a significant pre-existing condition. The JCC found that the E/C had failed to establish a MCC defense by way of the IME provider’s testimony, noting that there was no break in the chain of causation. The Claimant’s compensable back injury had been diagnosed as an aggravation of lumbar spondylosis/pre-existing condition, and no evidence was provided to break the chain of causation. Claimant’s low back condition was stable and did not require treatment for 3 years prior to the accident, after which Claimant was unable to perform functions of his job at full duty due to pain issues that did not significantly improve after treatment. E/C also attempted to argue that a DWC-25 signed by the PA was insufficient as a referral from the doctor for surgery, but this too was rejected by the provider, as this practice was common and any issue with same should have been brought by a motion to dismiss for lack of specificity, which was not done. As such, the recommended surgical procedure was granted.

Heriberto Ferrer vs. Progressive Plumbing, Inc.

JCC Pitts: Orlando District                                  Order Date: 11/21/2018

OJCC Case: 02-033172NPP                               Date of Accident: 5/1/2002

Claimant’s Counsel: Bradley G. Smith               E/C’s Counsel:  Margaret S. Hewitt

JCC Order: Click Here

Briefly: Statute of Limitations

Summary:  Claimant filed a PFB for authorization/scheduling of an appointment with an authorized provider. E/C raised a Statute of Limitations defense on the basis that it had been more than a year since the E/C had furnished or paid for any medical/indemnity benefit, such that the Statute of Limitations, tolled previously by PFB, had run. The JCC found that the latest PFB was not filed timely to toll the Statute of Limitations, and further determined that surgical mesh was a medical apparatus the use of which would not toll the Statute of Limitations under Gore. As surgical mesh was permanently implanted and determined by the authorized provider to not be removed, Murphy was found to apply, and the mesh was no longer being “used” and could not toll the Statute of Limitations. In the alternative, the JCC also denied authorization of an appointment with the provider as Claimant failed to establish that he required ongoing medical care that is both reasonable and necessary, as Claimant reported no pain at his last visit with the provider, and no further care except over-the-counter medications, was recommended.  The PFB was thus dismissed.

Rodriguez, Carlos vs. The Home Depot

JCC Almeyda: Miami District                            Order Date: 11/28/2018

OJCC Case: 17-025349ERA                               Date of Accident: 10/5/2017

Claimant’s Counsel: Bram J. Gechtman            E/C’s Counsel:  Jessika X. Lorie

JCC Order: Click Here

Briefly: Medical Benefits (Hindrance to Recovery)

Summary:  Claimant fell at work, suffering injury to the head and hip. In a follow up examination some months after the accident, Claimant presented with new symptoms, including slow movement, decreased balance, inability to attend to the tasks of daily living, and hand tremors. Diagnostic studies returned normal and the authorized provider found Claimant to be suffering from idiopathic Parkinson’s Disease and placed Claimant at MMI. Claimant obtained an IME, the provider for which determined Claimant to be suffering from Parkinson-like  symptoms caused by the head injury after the fall at work. The E/C obtained an IME, the clinical presentation for which was determined to be devoid of any parkinsonian features by the provider. Claimant presented video evidence of his lifestyle prior to the accident, and his instability, loss of movement, and use of cane after the accident. A PFB was filed for compensability for hindrance to recovery for injuries sustained in the fall, and for treatment of alleged Parkinson’s to return Claimant to the condition he was in prior to the date of accident. The first request was denied as no evidence of any actual hindrance to recovery of either the head or the hip was offered. The request for compensability of treatment of the alleged Parkinson’s was granted by the JCC based on the evidence of significant change in Claimant’s condition prior to and after the accident, the unpersuasive nature of the testimony of the authorized provider who found no evidence of Parkinson-type symptoms, and the lack of evidence offered by the E/C as to why weeks after the compensable head injury Claimant would develop Parkinson’s symptoms so quickly. The JCC found that it was unnecessary to address whether the head injury caused the Parkinson’s/Parkinsonian symptoms, noting they were one in the same, and determined that the E/C should treat the symptoms until they return to baseline at the time of the accident.