Briefly Speaking – FL Case Law Updates (7/3/18)

Robert Williams v. Wells Fargo

JCC Dietz: Melbourne District                                         Opinion Date: June 5, 2018

OJCC Case: 17-005854                                                  Date of Accident: November 23, 2016

Claimant’s Trial Counsel: Daniel DeCiccio                    E/C’s Trial Counsel: Sean Callahan

Claimant’s Appellate Counsel: Wayne Johnson            E/C’s Appellate Counsel: Tara Said

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

Summary: Attorney’s Fees – At the trial level, Claimant’s first Petition for Benefits was filed on March 10, 2017 requesting, among other things, authorization of left knee surgery and authorization of an orthopedist. Employer/Carrier authorized Dr. Hurbanis as the Claimant’s Orthopedist but denied the surgery because there was no pending surgical prescription. Claimant then filed another Petition for Benefits on June 6, 2017 requesting left knee surgery pursuant to Dr. Hurbanis’ recommendation. This surgery was authorized within the 30 day timeframe on June 29, 2017. Claimant argued entitlement to attorney’s fees because the Employer/Carrier authorized surgery beyond 30 days from the initial March 10, 2017 Petition for Benefits. Employer/Carrier contended that authorization of the surgery was not ripe at the time of the first Petition because no prescription had been written. The JCC agreed with this argument and denied entitlement to attorney’s fees related to the surgical authorization.

The First District Court of Appeal affirmed this decision per curium.

Sharon Fulton v. Student Transportation of America

JCC Humphries: Jacksonville District                 Opinion Date: June 20, 2018

OJCC Case: 17-022890                                          Date of Accident: May 23, 2017

Claimant’s Trial Counsel: James Parris            E/C’s Trial Counsel: Mark Gelman & Thomas Portuallo

Claimant’s Appellate Counsel: James Parris    E/C’s Appellate Counsel: Thomas Portuallo

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

Summary: Discovery – The Employer/Carrier sought to issue subpoenas related to Claimant’s prior motor vehicle accident. The Claimant argued no subpoenas could be issued because no Petitions for Benefits had been filed. The Employer/Carrier relied primarily upon Rule 60Q-6.114, which states, “Any party may commence with discovery methods specifically authorized by statute, including depositions, issuance of subpoenas (emphasis added) and requests for production, prior to or after invoking the jurisdiction of the judge (emphasis added).” The JCC granted the Employer/Carrier’s motion to compel and found the Court did have jurisdiction prior to the filing of a Petition for Benefits.

The First District Court of Appeal affirmed this decision per curium.

Bonita Brinson v. Hospital Housekeeping Services, Inc.

JCC Lazzara: Tallahassee District                      Opinion Date: June 22, 2018

OJCC Case: 15-027649                                          Date of Accident: June 29, 2015

Claimant’s Counsel: Paul M. Anderson              E/C’s Counsel: Gwen Jacobs

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

Summary: Compensability & Intoxication – The Employer/Carrier denied compensability because the Claimant tested positive for marijuana following the accident. When the Claimant was hired, she signed a stipulation acknowledging, “All employees that are injured are subject to a drug test.” The claimant attempted to rebut the statutory presumption through the testimony of two expert witnesses. However, her strategy did not include establishing any other possible external cause for her injury. Her litigation strategy focused primarily on the fact that the drug tests used detect only the presence of the drugs metabolites, but do not conclusively indicate the level of impairment in the claimant. Because the claimant failed to establish any other cause sufficient to rebut the statutory presumption the denial of compensability was affirmed.

Judge Makar dissented primarily based on the lack of scientific standards establishing impairment as a result of marijuana consumption. He found the Claimant’s expert testimony and scientific evidence at trial debunked the widespread misconception that testing positive for marijuana use necessarily correlates with intoxication or influence at the time of the accident. Judge Makar also added this statement regarding the contradiction in current laws regarding medical marijuana, “All this said, marijuana intoxication is a serious matter of public health and a workplace safety concern that employers face daily. The confluence of lawful marijuana use (medical in Florida, medical/recreational elsewhere), the lack of scientific standards or chemical tests for marijuana impairment, and the interplay of federal enforcement policy make the future application of workplace drug tests challenging, to say the least.” 

Marcos Garcia-Molina aka Moises Lezcamo v. Stabil Concrete Pavers

JCC Beck: Sarasota District                             Order Date: June 19, 2018

OJCC Case: 17-001223                                  Date of Accident: December 19, 2016

Claimant’s Counsel: Manual Franco                E/C’s Counsel:  Tiffany Hawks

JCC Order: Click Here  

Summary: Indemnity Benefits – Claimant’s initial authorized treating Orthopedist, Dr. Lonstein, placed the Claimant at MMI on July 6, 2017 and assigned a 0% PIR. Claimant requested a one-time change and was authorized to treat with Dr. Ashvin Patel. After Dr. Patel’s initial consultation on March 8, 2018, Dr. Patel recommended an L5 nerve block, swimming, a trunk stabilization program, as well as a weight loss program. Dr. Patel testified the nerve block was both remedial and palliative in nature. Dr. Patel assigned a 20 lb. lifting restriction. Dr. Patel deferred to Dr. Lonstein’s opinions regarding restrictions prior to Dr. Patel’s initial consultation on March 8, 2018. However, Dr. Patel did not believe the Claimant was at MMI as of July 6, 2017. The JCC ordered the Employer/Carrier to pay TPD benefits from the date of the original MMI, July 6, 2017, through the present and continuing because the Claimant was not at MMI as of July 6, 2017.