Briefly Speaking – FL Case Law Updates (3/27/18)


Damita Sanders v. Adecco

JCC Arthur: Lakeland District                             Order Date: March 12, 2018

OJCC Case: 17-006692                                        Date of Accident: December 8, 2016

Claimant’s Counsel: Joshua C. Nelson              E/C’s Counsel: Nisha D. Waranch         

JCC Order: Click Here

Briefly: Compensability (Repetitive Trauma) – Claimant alleged a repetitive trauma carpal tunnel injury as a result of her job as a “production line assembler” which required her to repeatedly place frozen cakes in boxes. Claimant also sustained a prior work related carpal tunnel injury in 2012. That case settled before the recommended surgery could take place. The JCC in the present case accepted the medical testimony that the Claimant’s current complaints were a natural progression of her prior carpal tunnel injury and denied the claim.

Summary: Claimant was alleging a new repetitive trauma carpal tunnel injury just three years after settling her prior carpal tunnel claim. The authorized treating Neurologist in her prior claim recommended surgery for the carpal tunnel but the claim settled prior to the surgery. The Claimant was alleging that her previous symptoms had completely resolved and that her current complaints were entirely the result of the new alleged accident. Despite this allegation the Claimant testified that she had pain in her hand/wrist in both 2014 and 2015. The JCC found the Claimant’s allegations were completely unreliable and found that her current complaints were related to her prior claim. The Petitions for Benefits were denied with prejudice.

Skylar Tomek v. Progressive Employer Management Co. Inc.

JCC Owens: Port St. Lucie District                     Order Date: March 12, 2018

OJCC Case: 17-021386                                       Date of Accident: January 2, 2017

Claimant’s Counsel: Michael G. Srebnick & Glenys Domingo

E/C’s Counsel:  Andrew R. Borah & Evan Heffner

JCC Order: Click Here

Briefly: One-time change– The Claimant suffered a compensable accident when he was climbing into an excavator and he felt a pop in his right knee. The Carrier did not respond to the Claimant’s one-time change until six days after receipt. Despite the untimely response, the Claimant acquiesced to the newly authorized physician. However, because the Employer/Carrier failed to specifically list acquiescence as a defense on the pretrial stipulation, the JCC found the Employer/Carrier waived the defense and granted the Claimant’s request for another one-time change.

Summary: On March 22, 2017, the claimant, then unrepresented, faxed a handwritten note which stated: “To Whom It May Concern: I Skylar M. Tomak case #284025701 is requesting a change of ortho Dr. as of this date March 22nd 2017.” It is signed by the claimant. According to the adjuster’s testimony, it was received on March 22, 2017. A letter was sent by the carrier to the claimant on March 28, 2017, acknowledging his request for one-time change and advising him of an appointment with Dr. Theodore Evans to take place on March 30, 2017. Claimant treated with Dr. Evans on multiple occasions but Claimant’s Counsel later filed a PFB for another one-time change based on the Employer/Carrier’s failure to timely respond to the initial request. The JCC acknowledged that the Claimant acquiesced to Dr. Evans. However, on the pretrial stipulation the Employer/Carrier merely stated as their defense that, “Claimant already exhausted one time change.” The JCC found this was not specific enough and ruled that the Employer/Carrier waived the acquiescence defense. The specific factual scenario was appealed in McFarlane v. Miami-Dade Transit Authority and the DCA determined the acquiescence defense must be specifically pled.

Frank Garofalo v. City of Fort Lauderdale

JCC Forte: Ft. Lauderdale District                       Order Date: March 13, 2018

OJCC Case: 16-023857                                        Date of Accident: October 1, 2015

Claimant’s Counsel: Anthony Forte                   E/C’s Counsel:  Darrel T. King

JCC Order: Click Here

Briefly: Indemnity Benefits & Voluntary Limitation of Income – Claimant sustained a compensable injury in 2015 when he tripped on a pile of yard debris. While the Claimant was still on restrictions and working light duty, he retired at the age of 66. The Employer/Carrier denied any continuing indemnity based on the Claimant’s voluntary retirement. The Claimant alleged entitlement to ongoing indemnity benefits based on the fact that the Employer/Carrier failed to offer any continuing employment within his restrictions. The JCC felt this was a factually specific scenario and denied the Claimant any continuing indemnity benefits.

Summary: The JCC acknowledged that generally an Employer/Carrier has a duty to continually furnish light duty work within the Claimant’s restrictions to maintain a voluntary limitation defense. However, the JCC found based on the Claimant’s testimony that the employer had been consistently accommodating his restrictions and that he was not forced to retire because of the accident. The JCC also specifically rejected four other JCC opinions which awarded indemnity benefits in similar scenarios and ruled that the Claimant was not entitled to any continuing indemnity benefits.

Sherry Ludwick v. Honey Transport

JCC Sculco: Orlando District                              Order Date: March 16, 2018

OJCC Case: 17-020046                                      Date of Accident: October 7, 2016

Claimant’s Counsel: Charles H. Leo                 

E/C’s Counsel:  Brittany Bell Turner & Shayda Kayhani

JCC Order: Click Here

Briefly: Average Weekly Wage – Claimant worked as a tractor-trailer driver and was injured on October 7, 2016 when he injured his left knee. Claimant was paid $0.32 per mile but was also given a per diem of $59 which covered meals and other expenses incurred while on the road. This issue arose out of whether the $59 per diem should be included in the average weekly wage. The JCC found it persuasive that the employer testified that the claimant’s per diem was non-taxable and not included in the gross pay reported for federal income tax purposes. The JCC ruled that this per diem should not be included in the AWW because when an expense allowance constitutes a “make-whole reimbursement” for work-related expenses created solely by the employment, it does not constitute a portion of the employee’s wages.