Briefly Speaking – FL Case Law Updates (7/31/17)

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By:                    Ryan M. Knight – Miami

Contributor:   Tara Said – Pensacola

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JCC Orders

Willis Burton v. Meyer’s Warehouse and Nationwide Agribusiness Insurance

JCC Stephenson: West Palm Beach District      Order Date: July 12, 2017

OJCC Case: 16-005790                                         Date of Accident: 11/05/2015

Claimant’s Counsel: Michael Celeste                 E/C’s Counsel:  Esther Zapata

JCC Order: Click Here  

Briefly: Arising out of Employment & Compensability The Claimant was involved in an unwitnessed, unexplained fall while in the course and scope of his employment. The JCC noted that when an unexplained fall occurs within the course and scope of employment and the cause of the fall cannot be determined, the fall should be deemed compensable. The JCC, however, determined the Employer/Carrier met their burden of showing the accident was caused by an idiopathic condition by establishing that the Claimant suffered from HBP and high cholesterol. Compensability of the accident was denied.

Summary: The Claimant was delivering products to a local Publix when he suffered an unexplained fall resulting in injuries to his face and nose. The hospital made no determination as to the cause of the fall. Claimant’s IME, Dr. Amarnath Vedere, testified that he could not determine the cause of the fall. The Employer/Carrier’s IME, Dr. Alexander Chernobelsky, stated that the fall was likely caused by the Claimant’s pre-existing high cholesterol and high blood pressure. Because the Employer/Carrier’s IME was the only was to opine as to the cause of the fall, the JCC accepted that testimony and denied compensability.

Edward Cruce (Deceased) v. School District of Indian River County

JCC Dietz: Melbourne District                             Order Date: July 21, 2017

OJCC Case: 16-021568                                        Date of Accident: 1/1/15

Claimant’s Counsel: Jason Goldstone               E/C’s Counsel:  Gary Schloss

JCC Order: Click Here  

Briefly: Death Benefits & Major Contributing Cause The Claimant developed and ultimately died from cryptococcal meningitis after being exposed to bat and pigeon droppings while working. The JCC determined that based on the testimony of Claimant’s IME and the infectious disease specialist, there was clear and convincing evidence that the Claimant was subjected to a hazard greater than that to which the general public is exposed. Compensability and death benefits were granted.

Summary: The Claimant, now deceased, worked as a groundskeeper for the school district for over 25 years. He developed severe headaches and was eventually diagnosed with cryptococcal meningitis. Claimant ultimately died as a result of the condition. The cryptococcal fungus which infected the Claimant is mainly found in pigeon, bat, bird, and rat droppings. The Claimant indicated that he had to chase out bats from a shed on the school’s premises 2-3 weeks prior to the symptom manifestation. He also reported clearing out a storage room that had been “taken over by pigeons.” Both the infectious disease specialist at the hospital and Claimant’s IME opined that the Claimant contracted the disease when he was exposed to the droppings at work. The JCC determined this evidence was sufficient for the Claimant to establish the compensability of the claim.

Adam Hayward v. Tampa Bay Buccaneers

JCC Lorenzen: Tampa District                           Order Date: July 21, 2017

OJCC Case: 17-000947                                       Date of Accident: 12/26/2010

Claimant’s Counsel: Neal Falk                          E/C’s Counsel:  Ben Cristal

JCC Order: Click Here  

Briefly: Statute of Limitations This claim involved five consolidated dates of accident, all of which the Employer/Carrier asserted the statute of limitations defense on. The Employer/Carrier was estopped from asserting the statute of limitations defense on two of the dates of accident because the Claimant was not provided information regarding the statute of limitations and because he was not placed at MMI pursuant to Gauthier v. Florida International University, 38 So.3d 221 (Fla. 1st DCA 2010).

Summary: The Employer/Carrier unsuccessfully argued that because the Claimant had actual knowledge of the statute of limitations with regards to three of the dates of accident, he should be presumed to have actual knowledge of the statute of limitations with regards to the other two dates of accident. The Claimant asserted that because he had never been provided with an initial claim packet and never received any MMI information regarding the statute of limitations he could not be deemed to have actual knowledge of the statute of limitations. In addition, the Claimant was not placed at MMI for either of those dates of accident as required by Gauthier. The JCC agreed with the Claimant and ruled that the Employer/Carrier was estopped from asserting the statute of limitations defense on the two dates of accident in which the Claimant had not been properly informed of the statute of limitations and not been placed at MMI.

Ross Emery v. Tyco Integrated Security

JCC Hogan: Ft. Lauderdale District                     Order Date: July 21, 2017

OJCC Case: 16-026253                                         Date of Accident: 7/5/16

Claimant’s Counsel: Julia Ann Farkas               E/C’s Counsel:  Karen Gilmartin

JCC Order: Click Here  

Briefly: Major Contributing Cause On the way home from work, the Claimant was involved in a motor vehicle accident and was ultimately diagnosed with a stroke. The Claimant alleged this incident was related to the stress he experienced on the day of the accident as a result of oversleeping and being late for work. The JCC denied compensability as the only medical evidence that specifically addressed MCC established that the stroke was caused by hypertension, diabetes, high cholesterol and a blood clot.

Summary: The Claimant admitted to having headaches in the days leading up to the accident and stroke but stated the headaches on the date of accident were the worst thing he had ever experienced. The Claimant clocked out from the job site at 4:00 pm but did not leave the job site until 11:00 pm. He could not recall what happened during that time period. The Claimant’s IME, Dr. Kishner, opined that the Claimant’s work on the day of the stroke created an increased risk of a stroke occurring. He also believed that the Claimant’s work was a precipitating and contributing cause of the stroke. The Employer/Carrier’s IME, Dr. Thaker, opined that the Claimant’s stroke was not causally related to any stress that he might have been undergoing on the job. He testified that the Claimant had multiple pre-existing factors which were the MCC of the stroke. As Dr. Kishner did not specifically address the MCC of the incident, the JCC rejected his opinion and denied compensability. Of interest, neither party, nor the court addressed the possibility of an EMA.