Briefly Speaking – FL Case Law Summaries (12/7/18)

Robert W. Caszatt v. Polk Air Conditioning Inc. and Bridgefield, Retailfirst

JCC Rosen: St. Petersburg District                     Order Date: 11/5/2018

OJCC Case: 12-001739SLR                               Date of Accident: 5/6/2011

Claimant’s Counsel: Bradley Smith                   E/C’s Counsel:  Bruno DeZayas

JCC Order: Click Here  

Briefly: Medical Benefits

Summary:  The claimant suffered a compensable workplace accident in which he claimed an injury to his left hip. The claimant was receiving medical treatment for his left hip and had already undergone left hip surgery as a result of this accident. Due to the retirement of the claimants authorized treating provider, the carrier authorized a second orthopedic surgeon to continue the claimant’s treatment. However, the claimant refused to treat with the new doctor as he has previously treated with this physician for an unrelated matter and was unhappy with prior results.  Instead, the claimant obtained an evaluation by a separate physician who opined that the claimant was in need of additional hip surgery and a hip replacement as a result of the industrial accident. The E/C also obtained an IME who had a conflicting opinion regarding the need for the additional hip surgery and replacement.

Based on the conflict between the physicians, an EMA was appointed by the court who agreed with the claimant’s IME and opined that the major contributing cause of the claimant’s need for additional hip treatment was the industrial accident and that the claimant requires a left hip replacement. The JCC found nothing in the EMA’s deposition or testimony which would eviscerate the presumption of correctness. However, the E/C argued that because this case was governed by a managed care arrangement, the claimant created his own problem by failing to report to the physician who was within the managed care network, and thus the EMA’s opinion should not be cloaked with the presumption of correctness as an EMA should not have been appointed in the first place. Although the JCC entertained the E/C’s argument, ultimately the JCC refused to accept the E/C’s argument and stated that this case followed the progress of many workers compensation cases where each party retains an IME, and then an EMA is appointed to resolve a conflict. As such, the JCC ordered the E/C to provide the hip replacement.  

Thomas M. Pastor v. The Old Fish House and Zenith Insurance Company

JCC Dietz: Melbourne District                             Order Date: 11/6/2018

OJCC Case: 18-002557RLD                               Date of Accident: 5/1/2017

Claimant’s Counsel: Edward Combs                  E/C’s Counsel:  Marissa Hoffman

JCC Order: Click Here  

Briefly: Compensability & Misconduct  

Summary:  In his PFB, the injured worker claimed to have been hurt in a workplace accident when he was struck in the elbow by a pan being carried by another employee while working as a line cook for the employer. The E/C denied compensability of the accident based on testimony of the claimant’s supervisor and the general manager who could not identify anyone else who was working where the claimant alleges his accident occurred. Additionally, the claimant continued working for several months following the accident without any apparent difficulty and without seeking any medical treatment.  The E/C also denied compensability based on the affirmative defense of misconduct because the claimant was terminated for not clocking out at the end of the shift, fishing behind the restaurant instead of cleaning the kitchen while on the clock, and obtaining seven to nine beers from the tap without paying for them which all occurred on the same day. 

The JCC denied the E/C affirmative defense of misconduct reasoning that although the claimant was terminated for cause, his actions did not rise to the level of misconduct. However, based on review of the evidence, the JCC denied compensability of the claimant’s alleged elbow injury as there were no objective relevant medical findings to support the claimant’s allegations that he suffered a compensable work injury.

Vanessa Roman v. CVS Pharmacy and Sedgwick CMS, Gallagher Bassett Services, Inc

JCC Medina-Shore: Miami District                     Order Date: 11/13/2018

OJCC Case: 11-026194                          Date of Accident: 8/25/2011

Claimant’s Counsel: Toni Villaverde                   E/C’s Counsel:  Jennifer Armstrong  

JCC Order: Click Here  

Briefly: Medical Benefits

Summary:  The claimant suffered a compensable back injury and received authorized medical treatment for several years with an orthopedic surgeon.  Due to the retirement of the claimant’s authorized treating physician, the carrier authorized an alternative physician and sent appointment letters to the claimant and claimant’s counsel advising of said authorization.  The claimant filed a PFB requesting authorization and payment of treatment with the claimant’s original authorized treating provider, and the E/C defended that due to the retirement, the E/C timely authorized an alternative physician. 

Due to an address change and claimant counsel’s failure to properly advise the claimant of the authorization and appointment with the new authorized provider, the claimant never appeared for any of the appointments. The claimant argued that because the E/C paid the medical group specifically for the services provided by the initial authorized treating provider, the medical group was the authorized treating provider and not the specific doctor. The claimant wished to continue treatment with the same medical group. 

The JCC disagreed with the claimant’s position reasoning that the argument was not supported by the law and the facts of the instant case. It is well-established that the E/C has the right to select the treating physician in Worker’s Compensation cases. Accordingly, the JCC denied the claimant’s request for authorization of the initial treating provider’s medical group.

Karen Kovar v. United Airlines and Sedgwick CMS/Gallagher Bassett Services, Inc.

JCC Lewis: Ft. Lauderdale District                      Order Date: 11/9/18

OJCC Case: 17-012508DAL                               Date of Accident: 5/3/2017

Claimant’s Counsel: Frank Angione                   E/C’s Counsel:  Jacqueline Gregory  

JCC Order: Click Here  

Briefly: Permanent Total Disability

Summary: The claimant sustained a compensable Worker’s Compensation injury to her lower back after lifting heavy luggage for a customer.   The claimant also had pre-existing injuries and prior treatment to her lower back as a result of a MVA which occurred prior to the work accident.   The claimant received medical treatment for her on the job accident from an orthopedic spine specialist who ordered a repeat MRI, administered epidural steroid injections, and referred her to pain management. According to the authorized treating provider, the claimant did not require any surgical intervention and placed the claimant at MMI with a 5% permanent impairment rating and a ten pound lifting restriction.

As a result of the permanent restrictions given, the claimant filed a PFB seeking PTD benefits. The claimant obtained an IME who agreed with the authorized treating provider and opined that the claimant could work under the restrictions given to her by the authorized treating provider. E/C argued that the claimant was not entitled to PTD benefits as the claimant is able to engage in at least sedentary employment within 50 miles of her home. The claimant submitted the testimony of a vocational expert who opined that the claimant could not engage in even sedentary work within 50 miles of her home and that although the claimant had 31 years of experience as a customer service agent, she had no transferable skills. The E/C submitted testimony and the opinions of two vocational experts who opined that the claimant’s restrictions are within the sedentary duty work level and there were available jobs the claimant could perform within her restrictions. Ultimately, based on all the medical evidence and all of the testimony of the witnesses, the JCC agreed with the E/C’s vocational experts and found that the claimant was indeed able to engage in at least sedentary work within 50 miles of her home. Accordingly, the JCC denied the claimant’s petition for PTD benefits.