Briefly Speaking – FL Case Law Updates (7/31/18)

Lawrence P. Levin v. Spencer Gifts Holdings

JCC Sojourner: Lakeland District                                   Opinion Date: July 5, 2018

OJCC Case: 11-029044                                                      Date of Accident: January 1, 2011

Claimant’s Trial Counsel: Matthew Valdes                    E/C’s Trial Counsel: Sean Crosby

Claimant’s Appellate Counsel: Matthew Valdes            E/C’s Appellate Counsel: William Rogner

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

Summary: Discovery – Pursuant to an earlier Final Order, the JCC determined the recommendations made by the EMA, including but not limited to, attendance at the FCE were reasonable and medically necessary. The Employer/Carrier subsequently filed a motion to compel attendance at the FCE. Claimant objected due to the fact the Claimant had already undergone one FCE. The EMA opined a new FCE was necessary based on the Claimant’s treatment subsequent to the original FCE and his improved condition. The JCC granted the motion to compel and Claimant appealed via Petition for Writ of Certiorari. The First DCA affirmed the decision of the JCC per curium. 

Jennifer Ferrer v. Palm Beach County School District

JCC Hedler: West Palm Beach District               Order Date: July 10, 2018

OJCC Case: 17-013874                                           Date of Accident: March 16, 2016

Claimant’s Counsel: Linette Waterman              E/C’s Counsel:  Scott Andrew Silver

JCC Order: Click Here  

Summary: Notice & Compensability (Repetitive Trauma) – The Employer/Carrier contended that the claimant failed to give notice within 30 days of the accident. The claimant testified that she reported the claim to her supervisor and sought medical care shortly after the onset of her pain.  The Employer/Carrier offered no testimony disputing the claimant’s version of events. Therefore, the JCC accepted the claimant’s testimony and denied the Employer/Carrier’s notice defense.

For a claimant to recover under the exposure theory of accident, he/she must show: (1) prolonged exposure, (2) the cumulative effect of which is injury or aggravation of a pre-existing condition; and (3) that she has been subject to a hazard greater than that to which the general public is exposed. Alternatively, he/she must demonstrate a series of occurrences, the cumulative effect of which is injury. Once the claimant establishes a claim for repetitive trauma, she then has to prove the repetitive trauma condition is the major contributing cause of her need for treatment. Further, the claimant bears the burden to prove causation and sufficient exposure to support causation by clear and convincing evidence.

The JCC concluded that the claimant satisfied her burden of proving the existence of a repetitive trauma injury. However, claimant failed to establish by clear and convincing evidence that such repetitive trauma was the major contributing cause of her injury and need for treatment. The only admissible medical evidence in this case was each party’s IME report. The JCC concluded that the claimant’s IME report did not rise to the level of clear and convincing evidence. Crucially, the IME report did not clearly and convincingly conclude that the work related claimed injury of lifting and bending was the major contributing cause of her injury versus the pre-existing scoliosis or any other episode of frequent bending or lifting. Compensability denied. 

Jose Acanda v. Chebere Appetite, Inc.

JCC Kerr: Miami District                                    Order Date:  July 11, 2018

OJCC Case:  18-001525                                        Date of Accident: February 17, 2017

Claimant’s Counsel: Ricardo Morales                E/C’s Counsel:  Leticia G. Coleman

JCC Order: Click Here  

Summary: Compensability & Notice – According to the claimant’s testimony, he was at work in the kitchen when he sustained a small cut to his right thumb. He only noticed a small amount of bleeding so he continued to work. The accident was allegedly witnessed by his supervisor, Rafael Sanjo. The claimant was not sure of the exact date because he said he was in a “bad state of mind” due to the recent death of his daughter. He was unsure whether the injury occurred a few days prior to or a few days after the death of his daughter. The claimant was eventually admitted to Kendall Regional Hospital and diagnosed with MRSA. 

The Employer/Carrier argued that according to one medical record, the claimant injured himself while doing housework rather than at work. The Employer/Carrier failed to call Mr. Sanjo as a witness or submit his deposition testimony.  Therefore, the claimant’s testimony regarding the mechanics of the injury and notice of the injury were uncontroverted. The JCC found that while the claimant was not the best historian, he was nonetheless a credible witness. The Employer/Carrier’s notice defense was denied and compensability was granted. 

Dustin Holmes v. Hill’s Tree & Crane Services

JCC Walker: Panama City District                      Order Date: July 12, 2018

OJCC Case:  17-028141                                          Date of Accident: August 24, 2017

Claimant’s Counsel: Maureen C. Proctor           E/C’s Counsel:  Robert B. Bennett

JCC Order: Click Here  

Summary: Compensability (Intoxication) – The claimant was using a chainsaw to cut down a tree when the chainsaw kicked back and hit the claimant in the right knee. The laceration went down to the bone and the claimant was taken to the emergency room. The Claimant’s post-accident drug screening resulted in a positive test for marijuana. The Claimant’s mother accompanied him to the hospital and was with him in the restroom while he provided a urine sample. Once the Claimant produced the sample, the mother gave the sample to the nurse who waited outside the restroom. The Employer/Carrier subsequently denied compensability based on the alleged intoxication. The claimant admitted to using marijuana at home with his friends. He denied, however, that he was under the influence of marijuana at the time of the incident.

The JCC determined the drug test failed to comply with the Florida Administrative Code. The medical officer canceled the test because of two factors, because the specimen temperature was out of range, and because the Claimant’s mother collected the urine sample and provided it to the collector. Based on these factors, the medical officer testified that the sample “just doesn’t meet the criteria from a chain of custody perspective that this was a reviewable test.” The medical officer also failed to notify the Claimant of the positive test within 3 days of the test. Compensability was ultimately granted due to the Employer/Carrier’s failure to comply with the Florida Administrative Code’s requirements regarding drug screening.