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Briefly Speaking – FL Case Law Update (4/23/18)

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FIRST DCA ORDERS

Joseph Ryals v. Escambia County BOCC

JCC Winn: Pensacola District                            Opinion Date: March 27, 2018

OJCC Case: 15-006425                                       Date of Accident: April 30, 2014

Claimant’s Counsel: Brian Carter                      E/C’s Counsel: Patrick Luna

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

Summary: Major Contributing Cause – Claimant suffered a compensable low back accident. Claimant’s uncontested pre-existing back injury was asymptomatic at the time of injury. The Employer/Carrier eventually denied continuing treatment based on major contributing cause because the Claimant had returned to her pre-accident condition. The two authorized treating physicians disagreed as to the major contributing cause of the need for further treatment. However the judge determined that the claimant’s low back injury had returned to its pre-accident condition and denied further treatment. The 1st district Court of Appeal affirmed this decision per curium.


JCC ORDERS

Dwayne Lee Crouch v. Jacksonville Sheriff’s Department

JCC Holley: Jacksonville District                        Order Date:  April 4, 2018

OJCC Case:  16-030707                                         Date of Accident:  October 7, 2015

Claimant’s Counsel: John Rahaim & Arnie DeGuzman               

E/C’s Counsel:  Thomas G. Portuallo

JCC Order: Click Here  

Summary: Major Contributing Cause – Claimant worked as a patrolman for the Jacksonville Sheriff’s office and injured his knee during a training exercise. He was placed at MMI with a 1% PIR but was advised he needed a total knee replacement due to his pre-existing arthritis. Both the authorized treating orthopedist, Dr. Kevin Kaplan and consensus IME, Dr. Ortiguera, opined that the MCC of the need for the knee replacement was the Claimant’s degenerative arthritis. The JCC determined that the arthritis constituted a “break” in the chain of causation and denied the compensability of the knee replacement surgery.


Jack Barker v. Schear Construction

JCC Clark: Ft. Myers District                             Order Date: April 12, 2018

OJCC Case:  17-003374                                          Date of Accident: September 23, 2014

Claimant’s Counsel: D. Robert Wells                 E/C’s Counsel:  David Hamilton Roos

JCC Order: Click Here  

Summary: Fraud/Misrepresentation – Claimant sustained injuries to his head, neck, and back on September 23, 2014 when he was struck from the rear while driving a company vehicle in the course and scope of his employment. The Employer/Carrier authorized all treatment but two years after the date of accident, denied all benefits based on the Claimant’s alleged misrepresentations.

Claimant had also been involved in a prior 2002 motor vehicle accident while at work in which he sustained injuries to his head, neck, and back. Claimant received treatment as a result of that accident for approximately six years. His treatment included a cervical MRI, treatment with a pain management physician for at least three years, and treatment with the neurosurgeon who recommended neck surgery. The claimant either outright denied or failed to mention this motor vehicle accident to all three of his authorized treating physicians. When asked about this accident during deposition the claimant reported that his only symptoms following that accident were headaches. When asked specifically about his neck pain he responded, “They really didn’t do much. They sent me to a nurse and that was it.”

The judge determined that the claimant did intentionally provide false, incomplete, or misleading information to his authorized treating providers and to the Employer/Carrier during deposition. All petitions for benefits were dismissed with prejudice.


Librada Gonzalez Izaguirre v. Beach Walk Resort

JCC Hogan: Ft. Lauderdale District                     Order Date: April 12, 2018

OJCC Case:  16-015391                                           Date of Accident:  April 30, 2016

Claimant’s Counsel:  Michael Goldstein         E/C’s Counsel:  Jason Selwood

JCC Order: Click Here  

Summary: IME Admissibility – Claimant underwent an independent medical examination with Dr. Aparicio on February 17, 2017. Claimant then petitioned for TPD benefits, authorization of an MRI, and surgical authorization based on the IME’s opinions. Twenty-four days later, claimant filed a Notice designating Dr. Aparicio as Claimant’s IME. The Employer/Carrier filed a motion to strike the IME due to Claimant’s failure to designate the IME within 15 days of the independent medical examination. Claimant’s counsel contended that the failure to timely designate the IME should be overlooked because it was only the result of an “inadvertent error.” The judge did not allow the IME report to be entered into evidence. All of the claimant’s requested benefits were therefore denied.


Nicole Simpson v. Pho Tan, Inc.

JCC Arthur: Lakeland District                             Order Date: April 10, 2018

OJCC Case:  17-024702                         Date of Accident:  October 2, 2017

Claimant’s Counsel:  Todd Parrish                    E/C’s Counsel:  Chris Hoeg

JCC Order: Click Here  

Summary: Indemnity Benefits (TPD) – The claimant suffered a compensable accident on October 2, 2017 when she fell in the parking lot and injured her right foot and ankle. Claimant was paid indemnity benefits up until February 12, 2018 when the claimant’s authorized treating physician opined that the claimant had no functional limitations. However, at that visit, the claimant was instructed to wear a walking boot. Claimant had previously been terminated by the employer.  The judge opined that the use of a durable medical device such as a brace or boot does constitute a restriction and does entitle the claimant to indemnity benefits. The Employer/Carrier was therefore ordered to pay TPD benefits from February 12, 2018 through the present and continuing.