FL Case Law Summaries – 3/1/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
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JCC ORDERS
David Dove v. Bennett Auto Supply and Travelers Insurance
JCC Owens: Port St. Lucie District Order Date: February 3, 2017
OJCC Case: 15-021286 Date of Accident: 3/26/15
Claimant’s Counsel: Michael Horowitz Employer/Carrier’s Counsel: Justin Crum
JCC Order: Click Here
Briefly: Major Contributing Cause; Expert Opinion – The Claimant sustained two compensable low back injuries and entered into a settlement agreement regarding the first injury. The Claimant argued that pursuant to Pearson v. Paradise Ford, 951 So. 2d 12 (Fla. 1st DCA 2007), the Employer/Carrier is responsible for the current surgery because the MCC defense does not apply where the pre-existing condition is the result of a prior work-related accident. The JCC rejected this argument noting that the facts of this case, involving a settlement of the first compensable injury, are distinguished form Pearson and that the Claimant’s argument would result in the absurd situation where an Employer/Carrier would be liable to pay for a claim for which the claimant already received a settlement.
Summary: The Claimant injured his low back in a compensable accident in March, 2015. The Claimant was also involved in a prior work related accident resulting in low back injuries in 2010. That claim later settled for $80,000. Due to conflicting medical testimony regarding the MCC of the need for the current surgery, an EMA, Dr. G. Clay Baynham, was appointed. The EMA ruled that while the surgery was medically necessary, he opined that the MCC of the need for surgery was the prior work accident. The JCC accepted Dr. Baynham’s opinion and denied surgical authorization.
The Claimant’s 2010 work-related low back injury was significant and required surgical intervention. Dr. Baynham concluded that the first workplace injury was significant enough and degenerative enough in nature that the surgery now in question would have become necessary at some point in the future regardless of any subsequent accident. The Claimant argued that the Employer/Carrier was nevertheless responsible for the current surgery because the MCC defense does not apply where the pre-existing condition is the result of a prior work-related accident. The JCC rejected this argument noting that this argument would result in the absurd situation where an Employer/Carrier would be liable to pay for 100% a surgical procedure for which they are only 1% responsible and for which the claimant already received a settlement. .
Molleen Morgan v. The Home Depot USA, Inc.
JCC Lewis: Fort Lauderdale District Order Date: January 31, 2017
OJCC Case: 13-016793 Date of Accident: 11/25/2012
Claimant’s Counsel: Paul Suss Employer/Carrier’s Counsel: Sal Richardson
JCC Order: Click Here
Briefly: Major Contributing Cause; Medical Benefits – The Claimant’s two workplace accidents from 2012 and 2013 respectively, were consolidated for trial. The Employer/Carrier denied all continuing palliative care because the Claimant was placed at MMI by all authorized treating physicians for her left ankle, left hip, left shoulder and left knee injuries. Claimant’s IME, Dr. Hodor, opined that the Claimant was at MMI for all injuries except the left knee and recommended a total knee replacement. The JCC rejected the claimant’s testimony as incredible, rejected Dr. Hodor’s IME opinion, and denied all continued palliative care.
Summary: The JCC ultimately denied the continuing medical treatment for two reasons. First, he found the Claimant to be a particularly untrustworthy witness. The Claimant misled multiple authorized treating physicians about the nature and extent of her prior motor vehicle accidents. The Claimant’s own IME, Dr. Hodor, also noted the claimant’s complaints were out of proportion to any objective medical findings
Secondly, the JCC felt the Claimant’s authorized treating orthopedic physician, Dr. Diaz, was better suited to analyze the Claimant’s ongoing knee complaints than Dr. Hodor. Dr. Diaz testified that the Claimant’s continued knee complaints were the result of her significant degenerative arthritis, not the workplace accident. It was therefore determined that the Claimant remained at MMI and all continued medical care was denied.
Harvey Fair v. Sourtherlin Nissan and Sentry Select Insurance
JCC Sculco: Orlando District Order Date: January 31, 2017
OJCC Case: 16-00057 Date of Accident: 10/26/2015
Claimant’s Counsel: Bradley Smith Employer/Carrier’s Counsel: Sean Crosby
JCC Order: Click Here
Briefly: Compensability (Aggressor Doctrine) – The Claimant was a salesman at the car dealership when he was involved in a physical altercation in his manager’s office. The sole issue at the bifurcated hearing was whether or not the Claimant was the initial aggressor in the altercation. The JCC ultimately determined that the Employer/Carrier failed to meet its burden that the Claimant was the initial aggressor, and denied the Employer/Carrier’s defense that the claimant’s injury was occasioned primarily by his willful intention to injury another under F.S. 440.09(3).
Summary: A customer came to the dealership to purchase a car from the Claimant after lengthy negotiation. The manager called the Claimant into his office to discuss a component of the sale the manager claimed he had not been informed about. It was uncontested that only the Claimant and the manager were in the office at the time of the altercation. Each party alleged the other threw the first punch. The customer testified overhearing multiple employees state that the manager threw the first punch. While the JCC readily admitted he did not know for sure who started the fight, he determined that the Employer/Carrier failed to meet its burden to prove the Claimant was the initial aggressor.
Stephanie Rome v. Automotive Parts Supply and Federated Insurance
JCC Spangler: Tampa District Order Date: February 1, 2017
OJCC Case: 16-014037 Date of Accident: 05/28/2015
Claimant’s Counsel: Douglas Bond Employer/Carrier’s Counsel: Gina Jacobs
JCC Order: Click Here
Briefly: Medical Benefits; Indemnity Benefits – The Claimant was involved in a compensable motor vehicle accident while driving the company vehicle. She later underwent unauthorized neck surgery and sought TPD benefits for the three months following the procedure. The indemnity benefits along with “compensability” were both denied because the disability that caused to the Claimant to miss work was solely related to the unauthorized surgery.
Summary: The Claimant’s motor vehicle accident occurred in May of 2015 and resulted in only $200 of damage to the vehicle. The Claimant was authorized to treat with an Orthopedic Physician, Dr. Toumbis. The Claimant was put at MMI by Dr. Toumbis in June of 2015 with a 0% PIR. Claimant did not attempt to return to Dr. Toumbis until March 15, 2016 when she called adjuster to advise that she was scheduled for surgery and wanted to see a doctor before the surgery occurred.
The JCC noted that the claimant was not seeking a determination of the compensability and medical necessity of the cervical surgery. If this is what was intended by the inclusion of a general demand for a determination of “compensability” as stated in the PFB, then the claimant failed to properly present that issue for determination. The JCC found the disability was a direct result of the surgery performed outside the worker’s compensation system, the compensability of which was waived because the compensability of that surgery was not specifically at issue for determination at the hearing.