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Briefly Speaking – FL Case Law Summaries (5/11/17)

TUMBNAIL - Briefly Speaking 150

By:                    Ryan M. Knight – Miami

Contributor:   Tara Said – Pensacola

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First DCA Opinions

AT&T Communications and Sedgwick CMS v. Victoria Murray Rosso

JCC Hogan: Ft. Lauderdale District                                     Opinion Date: May 2, 2017

OJCC Case: 02-053101                                                           Date of Accident: 02/10/1989

Claimant’s Appellate Counsel: Barbara Wagner            Employer/Carrier’s Counsel: Thaddeus Harrell

Claimant’s Trial Counsel: Richard Berman

JCC Order: Click Here                                                             1st DCA Order: Click Here

Briefly: Medical Benefits The Claimant requested numerous medical benefits in her PFB, including home renovations and lawn maintenance. The First DCA affirmed the award of lawn maintenance because such benefit was determined to improve the Claimant’s compensable conditions of depression and anxiety. The housing renovations were denied due to a lack of evidence pertaining to the medical necessity of the renovations.

Summary: The Claimant, now 73 years old, sustained a compensable lumbar injury in 1989. Despite having lumbar fusion surgery, the Claimant continues to experience pain and has difficulty walking. Her authorized treating psychiatrist diagnosed the Claimant with depression and anxiety. He opined during deposition that the Claimant’s inability to maintain her yard was contributing to her depression and anxiety. He was testified that the maintenance of the yard was medically necessary to help with her psychological symptoms.

The Claimant also had a home renovation assessment done which recommended ramp access, outdoor motion sensor lighting, door widening, smooth flooring, and kitchen/bathroom modifications. However, the Court concluded that the home health aide in charge of the assessment was unqualified to render an opinion as to the medical necessity of the renovations. As none of the authorized treating physicians specifically addressed the medical necessity of the renovations, the record lacked competent substantial evidence to support the award. Lawn maintenance granted, renovations denied.


Pedro Leon v. CSB Services, Inc.

JCC Castiello: Miami District                              Opinion Date: May 5, 2017

OJCC Case: 00-027634                                          Date of Accident: 12/19/2000

Claimant’s Counsel: William F. Souza               Employer/Carrier’s Counsel: Robert B. Griffis

JCC Order: Click Here                                            1st DCA Order: Click Here

Briefly: Medical Benefits The Claimant moved to Peru and requested the E/C to provide him an orthopedic physician for ongoing medical care for his compensable on the job accident. Dr. Linares was authorized to treat the claimant. Despite the authorization, claimant filed a PFB requesting that Dr. Linares be re-approved and the JCC denied the request as moot as he had already been approved to treat the claimant. Claimant then filed another PFB asking for a replacement orthopedic physician as Dr. Linares was not willing to treat the claimant under the Florida workers’ compensation system. Again, the JCC denied the request which was then appealed.

Summary: The sole basis of the JCC’s denial was the failure of the claimant to provide competent, substantial evidence that supported the medical necessity of ongoing orthopedic care for his on the job accident. The DCA overturned the decision based on the fact that the E/C never raised the issue of medical necessity in their pre-trial nor at trial and as such, the JCC erred. The court held that this was a violation of the claimant’s right to due process. The DCA also noted that a JCC was not allowed to sua sponte deny the request based on a defense not raised by the Employer/Carrier.


JCC ORDERS

Andres Tirado v. Miami Dade County School Board

JCC Medina-Shore: Miami District                     Order Date: May 1, 2017

OJCC Case: 16-024812                                              Date of Accident: 05/05/16

Claimant’s Counsel: Juan Lucas Alvarez            E/C’s Counsel:  David Goehl

JCC Order: Click Here  

Briefly: One Time Change The Claimant requested a one time change in physician which the E/C denied as he had already exhausted his one time change option. The Claimant argued that his son requested the one time change from the adjuster without consulting him. The JCC did not accept this testimony and denied the one time change request.

Summary: The Claimant’s son emailed the adjuster requesting a one time change in physician. The adjuster authorized a new physician the same day. At Final Hearing, the Claimant argued that his son did not consult him before requesting the one time change. The Claimant admitted to asking his son to convey his dissatisfaction with his original authorized treating physician but denied requesting that he ask for a new doctor. The JCC found this testimony to be unreliable and determined that the Claimant exhausted his one time change.


Andres Tirado v. Miami Dade County School Board

JCC Medina-Shore: Miami District                     Order Date: May 1, 2017

OJCC Case: 16-024808                                             Date of Accident: 08/23/2011

Claimant’s Counsel: Juan Lucas Alvarez            E/C’s Counsel:  David Goehl

JCC Order: Click Here  

Briefly: Statute of Limitations Claimant contested that the case was not barred by the statute of limitations because one prescription drug payment was made within one year of the filing of the petition for benefits. The JCC accepted the adjuster’s testimony that the entry on the payout ledger was mistakenly listed under the present claim and ruled the case was barred by the statute of limitations.

Summary: The Claimant sustained a compensable back injury in August of 2011. He was placed at MMI on 4/4/13 by Dr. Brown. He admitted to not seeking medical treatment for the accident in either 2014 or 2015. The Claimant was then involved in a separate 2016 date of accident with the same employer. The Claimant continued to receive treatment for the 2016 DOA at the time of this Final Hearing. The Claimant then filed a PFB, related to the 2011 DOA, on October 13, 2016 seeking authorization of an alternative medical provider. The Employer/Carrier denied the claim as no medical or indemnity payments had been made in the past year. The payout ledger, however, listed one prescription payment made on 2/21/17. The adjuster testified that the payment belonged to the Claimant’s 2016 DOA and was later moved to that claim. The JCC found this testimony to be reliable as the Employer/Carrier had asserted their statute of limitations defense three months prior to the payment of that bill. The JCC also found it unlikely that a prescription payment would be made three years after the last DOS. The claim was therefore barred by the statute of limitations.


Carlos Rodas Davila v. Crown Max Decor

JCC Almeyda: Miami District                              Order Date: May 5, 2017

OJCC Case: 16-024700                                           Date of Accident: 09/06/2016

Claimant’s Counsel: Jesus Ravelo                     E/C’s Counsel:  Luis Perez

JCC Order: Click Here  

Briefly: Compensability (Employer/Employee Relationship) It is uncontroverted that the Claimant sustained a compensable accident when a nail went through the Claimant’s eye. The Employer/Carrier defended the case claiming that there was no Employer/Employee relationship. The JCC found that the Claimant was not an independent contractor based on his testimony and that the Employer exerted sufficient dominion and control exerted over the Claimant.

Summary: The Claimant argued that he was an employee of the Employer and hired to work as a carpenter. The Employer maintained he was an independent contractor. The JCC found the claimant to be credible in his testimony and determined that he met the statutory definition of an employee. The JCC found that the evidence supported: (1) the Claimant did not have his own business; (2) checks were written from the Employer directly to the Claimant; (3) the Employer supplied the labor and materials for each job; (4) Claimant was paid a flat daily rate; (5) the Employer exercised direction and control over the work; (6) the Employer furnished transportation to and from the jobsite; and (7) there was no independent contractor agreement.