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Briefly Speaking – FL Case Law Updates (5/24/17)

TUMBNAIL - Briefly Speaking 150

By:                    Ryan M. Knight – Miami

Contributor:   Tara Said – Pensacola

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First DCA Opinions

Elsa Dominguez v. Compass Group

JCC Sojourner: Lakeland District                             Opinion Date: May 16, 2017

OJCC Case: 14-012224                                                 Date of Accident: 04/01/2012

Claimant’s Trial Counsel: Alejandro Zaldivar       E/C’s Trial Counsel: Brandon Silve

Claimant’s Appellate Counsel: Mark Zeintz         E/C’s Appellate Counsel: Mary Frances Nelson

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

Briefly: One Time Change The Claimant was placed at MMI by Dr. Arango, the Claimant’s authorized orthopedic hand specialist in October 2013. The Claimant’s subsequent request for a primary care physician was denied by the JCC. Then in February 2016, the Claimant requested a one time change in physicians. The First DCA reversed the JCC’s order denying the request for a one time change. The First DCA determined that once a Claimant treats with any authorized treating physician – Dr. Arango in this case – a Claimant has an absolute right to a one time change.


JCC ORDERS

Rena Cruz Baldo v. Stud Farm

JCC Hill: Gainesville District                                  Order Date: May 16, 2017

OJCC Case: 16-016334                                             Date of Accident: 3/21/07

Claimant’s Counsel: Barbara Richard                E/C’s Counsel:  Sean O’Connor

JCC Order: Click Here  

Briefly: One Time Change The Employer/Carrier authorized a one time change in physician located two hours away from Claimant’s home. Claimant argued this was unreasonable despite the fact that two other neurologists in the Claimant’s area had refused to treat the Claimant. The JCC found the travel time was unreasonable because no evidence was presented that the pool of neurologists in the Claimant’s area had been exhausted.

Summary: The Claimant resided in Williston, Florida (near Gainesville). Claimant requested a one time change from his authorized treating neurologist. Two neurologists in Gainesville refused to treat the Claimant so the Employer/Carrier authorized a Neurologist in Jacksonville. The Employer/Carrier admitted that this physician was two hours away but agreed to provide transportation. The JCC cited Florida Administrative Code Rule 59A-23.003(6) governing managed care treatment which states that travel time to a specialist should not exceed 60 minutes. the JCC admitted that this case was not governed by managed care by found this rule instructive. The Employer/Carrier was ordered to authorize a Neurologist within the 60 minute radius of the Claimant’s residence.


Gina Yaeger v. Orange County Fire & Rescue

JCC Sculco: Orlando District                                                                      Order Date: May 16, 2017

OJCC Case: 16-023250                                                                                 Date of Accident: 09/17/2016

Claimant’s Counsel: Monte Shoemaker & Daniel DeCiccio                E/C’s Counsel:  Karen Cullen & Michael Broussard

JCC Order: Click Here  

Briefly: Temporary Partial Benefits & Voluntary Limitation of Income Claimant was offered a light duty position which she refused. She requested TPD benefits which the Employer/Carrier denied as there was suitable work within her restrictions. The JCC found that the light duty job would have required her to increase her 127 mile commute from 10 days per month to 5 days per week. This coupled with the fact that she was assigned limited sitting restrictions by her authorized treating physician meant that the Claimant’s refusal was justified.

Summary: Claimant sustained a compensable back injury while working as a paramedic. Prior to the injury, the Claimant had relocated to Jensen Beach – 127 miles from the jobsite – to be closer to her ailing parents. As a result of her injuries the Claimant was assigned various sitting restrictions (between 30 minutes and 3 hours per day). The Claimant testified that the frequency and length of the drive coupled with her prescription narcotic medication rendered her incapable of commuting to the light duty job five days per week. The JCC agreed and awarded all back due TPD benefits plus P&I.


Daniel Roy v. Haag Management

JCC Johnson: West Palm Beach District            Order Date: May 18, 2017

OJCC Case: 16-026270                                            Date of Accident: 10/15/2016

Claimant’s Counsel: Bram Gechtman                E/C’s Counsel:  John Brooks

JCC Order: Click Here  

Briefly: Compensability & Employer/Employee Relationship The Claimant sustained traumatic brain injuries after falling off a roof during his employment. The Employer/Carrier defended the claim on the grounds that the Claimant was an independent contractor and no employer/employee relationship existed at the time of accident. The JCC found that the Claimant met five out of the six criteria of Florida Statute 440.02(15)(d) and therefore meets the definition of an independent contractor. Compensability was denied.

Summary: To be considered an independent contractor at least four out of the six independent contractor criteria must be met. The JCC found that the claimant met the following five criteria that established that he was not an employee but an independent contractor. As such, benefits were denied.

  1. The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials or similar accommodations.
    1. Claimant owned his own sole proprietorship, DGMG Services.
  2. The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number.
    1. Claimant is a sole proprietor who is not required to obtain a federal employer identification number.
  3. The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual.
    1. All of the payments were made to the Claimant’s business, DGMG Services, and not directly to the Claimant.
  4. The independent contractor holds one or more bank accounts in the name of the business entity.
    1. Claimant maintained a business bank account for DGMG Services wherein he deposited checks payable to DGMG Services.
  5. The independent contractor performs work or is able to perform work for any entity without the necessity of completing an employment application or process.
    1. Claimant through his business also performed work for Addison Court and Medplex. There is no evidence that the Claimant had to complete an employment application or process to work at these other locations.

Alice Brockman v. Sarasota County School Board

JCC Beck: Sarasota District                                      Order Date: May 15, 2017

OJCC Case: 16-013511                                               Date of Accident: 05/19/2016

Claimant’s Counsel: Eric Christiansen               E/C’s Counsel:  Ben Cristal & Deidre Aretini

JCC Order: Click Here  

Briefly: Temporary Partial Benefits & Voluntary Limitation of Income Employer/Carrier denied TPD benefits after the Claimant voluntarily limited her income when she retired from her position. The Claimant’s position was that she was forced to retire as a result of her compensable accident. The JCC determined that Claimant’s loss of earnings was due to the workplace accident and she had not limited her income by electing to retire early under the circumstances. All back due TPD benefits plus P&I were granted.

Summary: Claimant injured her shoulder and neck in a compensable accident while working as a custodian for Sarasota County School Board. Claimant testified that she only retired because she was given the “choice” of being terminated and having to wait until age 62 for retirement benefits or retire immediately. The Employer/Carrier contended that the threatened termination was due Claimant’s substandard performance of her light duty work. The Claimant’s authorized treating physician, however, testified that the Claimant was incapable of performing the light duty job offered to her. Although Claimant did elect the option to retire earlier than she had planned, she did so to avoid the alternative of being terminated and not being able to obtain retirement benefits until age 62. The evidence established that had Claimant opted to stay instead of retire, she would not have been permitted to do so and would have been terminated.