Blog

Briefly Speaking – FL Case Law Summaries (6/2/17)

TUMBNAIL - Briefly Speaking 150

By:                    Ryan M. Knight – Miami

Contributor:   Tara Said – Pensacola

To receive daily e-mails with case law summaries, please email esantos@eralcides.com

JCC ORDERS

 Ronald Smith v. City of Jacksonville

JCC Holley: Jacksonville District                        Order Date: May 25, 2017

OJCC Case: 16-024506                                         Date of Accident: 03/19/2016

Claimant’s Counsel: John Schickel                   E/C’s Counsel: Michael Crumpler          

JCC Order: Click Here  

Briefly: Major Contributing Cause The Claimant had two prior knee surgeries due to work related accidents in 2002 and 2006. Claimant alleged that his 2016 workplace accident aggravated or exacerbated his condition. Based on the Employer/Carrier’s objections, the JCC did not allow the Claimant’s IME report to come in as it was not properly noticed as required by law. The JCC ultimately accepted the testimony of the PCP and E/C’s IME that the MCC of the need for the knee replacement surgery was 100% due to the pre-existing osteoarthritis and denied compensability.

Summary: The PCP, Dr. Loveless, initially stated during deposition that the MCC of the need for knee replacement surgery was “much more than 51%” related to the Claimant’s pre-existing condition. On cross examination, Counsel for the E/C was able to clarify the doctor’s opinion and Dr. Loveless eventually testified that 100% of the need for surgery was the pre-existing condition. The E/C’s IME opined that the MCC of the need for surgery was 100% the Claimant’s pre-existing osteoarthritis. The JCC noted that even if the Claimant’s IME testimony was taken into consideration, the testimony of the PCP and E/C’s IME, were far more credible, reasonable, and logical. It should be noted that this case was defended on the grounds of MCC, rather than apportionment because the Claimant’s pre-existing osteoarthritis predated the two prior work related accidents. Had the Employer/Carrier argued that the two prior workplace accidents were the cause of the need for treatment, apportionment would have applied.


Teresa Russell v. Residence Inn

JCC Holley: Jacksonville District                          Order Date: May 26, 2017

OJCC Case: 16-009566                                           Date of Accident: 02/24/2015

Claimant’s Counsel: Michael Rudolph                E/C’s Counsel: David Drill         

JCC Order: Click Here  

Briefly: Major Contributing Cause The Claimant sustained a compensable left knee injury but her subsequent claim for right knee treatment was denied. Claimant alleged she was forced to overcompensate on her right knee due to the compensable left knee injury. As neither authorized treating physician could definitively state within a reasonable degree of medical certainty that the left knee injury was the MCC of the need for right knee treatment, authorization of treatment was denied.

Summary: During deposition, the Claimant stated that as a result of a prior work related injury, her right knee “slowed her down a bit” and “was not quite right” but advised that it was not hurting at the time she injured her left knee in 2015. Her authorized treating orthopedist testified that the Claimant had been experiencing right knee pain prior to the present workplace accident. He also testified that while it was possible that her current right knee complaints resulted from overcompensation, he could not definitively state that the left knee injury was 51% or more responsible for the need for treatment. The Claimant therefore failed to meet her burden of proving compensability.


Wade Cooper v. Cooper Land & Timber

JCC Weiss: Ft. Myers District                              Order Date: May 22, 2017

OJCC Case: 16-024032                                          Date of Accident: 03/20/2016

Claimant’s Counsel: Brian Sutter                      E/C’s Counsel:  Dana Andres

JCC Order: Click Here  

Briefly: Compensability; Going and Coming Rule; Idiopathic Conditions The Claimant was an employee of the Employer as well as the owner of the company. He owned a company F150 pickup truck which also served as his personal vehicle. He was involved in a single car accident while operating the vehicle. Claimant testified that he was traveling from his shop which was located just one block from his house to a gas station to get fuel for his equipment. The Employer/Carrier argued that the accident did not arise out of the employment because the accident was caused by a pre-existing seizure condition. The JCC determined the accident was compensable because there was no medical evidence evincing prior occurrences of seizures and because the Claimant was traveling for a work related purpose at the time of the accident.

Summary: The Employer/Carrier contended that the trip to the Circle K gas station was a personal errand because there was at least one gas station closer to his shop. The Claimant’s testified that he was traveling to this Circle K rather than the closer station because he had a gas card for the Circle K and the fuel was cheaper. This testimony was supported by the Employer/Carrier’s own surveillance which showed the fuel was in fact cheaper at the Circle K. The fact that the accident occurred on a Sunday was also not dispositive because the Claimant typically worked Saturdays and Sundays. The court noted that he was on a special errand and thus the going and coming rule did not apply.

The JCC also rejected the Employer/Carrier’s argument that the accident was caused by an apparent seizure because there was no medical evidence that definitively diagnosed the Claimant with a seizure. While he did appear to have seizure-like episodes in the past, it is the Employer/Carrier’s burden to prove with direct medical evidence, the existence of pre-existing idiopathic condition. Even if the seizure was determined to be the cause of the accident, Florida Workers’ Compensation has long held that motor vehicles constitute dangerous instrumentalities. Any accident which occurs while operating a dangerous instrumentality cannot be denied on the basis of a pre-existing condition.


Nancy Gonzalez v. The Kent Hotel

JCC Medina-Shore: Miami District                     Order Date: May 23, 2017

OJCC Case: 15-016028                                              Date of Accident: 03/18/2015

Claimant’s Counsel: Michael Goldstein              E/C’s Counsel:  Kip Lassner

JCC Order: Click Here  

Briefly: Permanent Total Disability Claimant is a 54 year old Spanish speaking woman who emigrated from Cuba in 2014. She had a portion of right ring finger amputated during the course and scope of employment. The Claimant eventually developed Complex Regional Pain Syndrome (CRPS) in the right arm/hand. The JCC determined that her vocational background coupled with her permanent restrictions entitled the Claimant to PTD benefits.

Summary: Claimant’s authorized treating physician, Dr. Easterling, diagnosed her with CRPS and ultimately assigned a 22% PIR and permanent restrictions of no use of the right hand. The Employer/Carrier’s IME, Dr. Gilbert, opined that the Claimant was no longer suffering from CRPS and assigned an 11% PIR with a 10 pound lifting restriction. Dr. Hodor was appointed as an EMA and opined that the Claimant did have CRPS and it could be improved with stellate ganglion blocks before placing the Claimant at MMI. It should be noted that the claimant has an underlying heart condition. The EMA opined that if the Claimant could not get cardiac clearance to undergo the blocks, a 22% PIR would be appropriate. Permanent restrictions of no repetitive pushing, puling or lifting greater than 5 pounds using the thumb and index finger of the right hand would be appropriate.

The Claimant worked in various administrative and managerial positions while in Cuba. Her work history in the US was far more limited due to inability to speak English. The Claimant’s vocational expert, James Sullivan, opined that due to her restrictions, her inability to speak English, and her lack of transferrable skills, she was prevented from obtaining any job within a 50 mile radius. The Employer/Carrier’s vocational expert, Theodore Bilski, testified that numerous employers in Miami hire employees who only speak Spanish. Mr. Bilski, however, failed to specifically identify any such employers.

The JCC ultimately found that the Claimant proved entitlement to PTD benefits with the third prong of the Blake v. Merck & Company case,permanent work-related restrictions that, while not alone totally disabling, preclude claimant from engaging in at least sedentary employment when combined with vocational factors.” The Employer/Carrier failed to prove the availability of any jobs within a 50 mile radius within her physical and vocational limitations.