Briefly Speaking – FL Case Law Updates (11/7/18)

Osvaldo Reyes v. Eagle Doors, Inc.

JCC Kerr: Miami District                                                           Order Date: 10/3/18

OJCC Case: # 18-008725MGK                                                   Date of Accident: 11/7/2017

Claimant’s Counsel:     Ricardo Morales                                  E/C’s Counsel:  Andrew Borah

JCC Order: Click Here  

BrieflyOne time Change

Summary:  Claimant suffered a compensable work injury and was receiving medical treatment. The Adjuster testified that through the initial stages of the case, the adjuster and claimant communicated in English, both verbally and in writing.  The claimant testified he spoke very little English and his son had assisted with the written communications with the adjuster. On 2/28/18, the claimant sent a letter to the adjuster entirely in Spanish, listing multiple concerns and included a sentence which was translated later to state; “I want my treatment with a different doctor with whom I can speak my own language because these treatments are invasive and I want to understand them well.”  On 3/14/18, the claimant sent a similar letter again entirely in Spanish with the same complaints, and also included language requesting a Spanish speaking doctor. 

On 4/02/18, Claimant’s counsel contacted the adjuster and demanded the adjuster to authorize the claimant’s choice of doctor due the failure to timely respond to the request for a one-time change.  The adjuster refused and indicated that she had not received a clear one-time change request as the claimant’s letters  appeared to only request to have someone who spoke Spanish be present at his appointments. As a result, a PFB for a one time change was filed by the claimant. The JCC found that because requests for a one time change in physician should be clear on its face and not subject to interpretation, the claimant’s two letters did not constitute a valid request for a one time change. Two certified translators gave different translations for the claimant’s letters, and the claimant testified in deposition that his request was mainly for a second opinion. 

The JCC ruled that the first clear request for a one time change was the PFB, and because the Carrier responded to the PFB within two days, the claimant’s request for authorization of his choice of physician was denied. 

 Linda L. Ferrante v. Palm Beach County School Board

JCC Johnson: West Palm District                                             Order Date: 10/5/18

OJCC Case: #96-020429GJJ                                                      Date of Accident: 9/26/1996

Claimant’s Counsel:     Brian Vassallo                                     E/C’s Counsel:  Michele T. Bachoon  

JCC Order: Click Here  

Briefly: Failure to raise affirmative defenses leads to waiver.

Summary:  The claimant suffered compensable work injuries to her knees, low back, and right shoulder as a result of three separate work accidents.  At the time of final hearing, the only pending PFB requested authorization and payment of regenerative prolotherapy injections to claimant’s knees.   In the pre-trial stipulation, the parties agreed that the claimant had reached Maximum Medical Improvement for her knees and back. In the pre-trial, the E/C failed to raise any affirmative defenses.  

The Claimant’s authorized treating pain management physician was only authorized to treat the claimant’s back. He recommended that the claimant could benefit from regenerative prolotherapy injections to her knees as an alternative to the current corticosteroid injections she was receiving from her knee physician.  While the pain management doctor deferred medical necessity of these new injections to her knee physician, he opined that these knee injections could help treat her back pain due to her altered gait. The JCC concurred and ordered the E/C to provide the knee injections as they would treat her back pain as well. The court noted that while the claimant had reached MMI, these injections were medically necessary as they were palliative in nature.  The JCC also found that the E/C failed to raise the defense of major contributing cause and medical necessity and thus waived that defense.

Omar Hernandez v. Leland Enterprises, Inc.,

JCC Owens: Port St. Lucie District                                           Order Date: 10/8/18

OJCC Case: # 18-005955KFO                                                    Date of Accident: 2/26/18

Claimant’s Counsel:     Lissa Dorsey                                        E/C’s Counsel:  Marissa Hoffman

JCC Order: Click Here  

Briefly: Failure to raise defenses in the Pre-trial Stipulation leads to waiver.

Summary:  The Claimant was injured in a compensable work accident on 2/26/18.  At the time of the final hearing there was only one pending petition for benefits requesting indemnity.  As a defense, the E/C stated in their pre-trial stipulation that all temporary indemnity benefits due were properly paid.  Additionally, the E/C sought an offset of indemnity benefits for any unemployment benefits the claimant had received.  In its trial memorandum, the E/C added the defense of voluntary limitation of income and argued that the claimant refused suitable employment as the employer had work available within the claimant’s restrictions. 

During the final hearing, the claimant objected to the introduction of this new defense and argued that the E/C waived the defense of voluntary limitation of income and refusal of suitable employment as these defenses were not included in the pre-trial stipulation.  The JCC agreed with the claimant, and found that a defense that is not asserted in the pre-trial stipulation is waived.  Accordingly, the JCC awarded indemnity benefits.

Eduardo Miguel Rives Soto v. Southeast Personnel Leasing, Inc.,

JCC Weiss: Ft. Myers District                                        Order Date: 10/9/18

OJCC Case: # 18-007328JAW                                                    Date of Accident: 2/12/18

Claimant’s Counsel:     Bram Gechtman & Darien McMillan    E/C’s Counsel:  Robert Bennett

JCC Order: Click Here  

Briefly: Fraud/Misrepresentation.

Summary:  The claimant injured his shoulder in a work related motor vehicle accident as a truck driver.  The claimant contended that another vehicle cut him off, causing him to lose control of his truck, resulting in it rolling over. The claimant provided numerous statements both orally and in writing maintaining that he was cut off by another vehicle.  Additionally, the claimant denied using his cell phone to read a text message at the time of his accident and maintained that his cell phone was put away in his lunch box.

Based on the above representations, the E/C alleged a misrepresentation defense and argued that the claimant made false or misleading statement for the purpose of obtaining workers compensation benefits.  The misrepresentation defense was primarily based on dashcam video in the truck the claimant was driving which clearly showed that no vehicle cut the claimant off, and that corroborating evidence showed that the claimant may have been reading text messages while driving. 

Over the claimant’s hearsay objections, the JCC admitted all of the claimant’s statements into evidence and ruled that the claimant made false or misleading statements for the purpose of obtaining workers compensation benefits and denied the requested benefits.