FL Case Law Summaries – 1/27/16
BY:
1ST DCA ORDERS
Nick Panebianco, Esq., the former attorney for the Employee/Claimant/Elizabeth Vasquez v. Jackson Health System and Cannon Cochran Management Services, Inc., and Elizabeth Vasquez
Appeal of the Order from JCC Rosen
DCA Order Date: January 25, 2016
Case: 1D14-5501; D/A: 11/3/2007
Appellant’s Counsel: Nick Panebianco and Wendy S. Loquasto
Appellee’s Counsel: Richard S. Powers
Briefly: DUE PROCESS RIGHTS TO CROSS-EXAMINE WITNESSES– The 1st DCA held that the attorney Panebianco was not afforded meaningful due process and remanded for a new evidentiary hearing at which time he shall be heard and shall have the right to cross-examine the witnesses.
Summary: The DCA opinion does not set forth the facts of the case and it is difficult to determine from the OJCC docket the issue on appeal. However, the 1st DCA cited a string of case law authority that requires a party to have the opportunity to be heard and to call witnesses.
The DCA also cited authority that no attorney-client privilege exists as to communications relevant to “an issue of breach of duty by a lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship”. Additionally, the DCA cited Florida Bar Rule 4-1.6(c)(2) that a lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary “to establish a claim or defense on behalf of the lawyer in controversy between the lawyer and client”.
JCC ORDERS
Donelda Etling v. School Board of Broward County
JCC Lewis; Ft. Lauderdale District; Order Date: January 25, 2016
OJCC Case: 09-019825DAL; D/A: 7/11/2008
Claimant’s Counsel: Nick Panebianco
Employer/Carrier’s Counsel: Raymond Grant
Briefly: GOOD FAITH EFFORT TO RESOLVE MATTER PRIOR TO PETITION – JCC Lewis denied the Employer/Carrier’s Motion to Dismiss Petition for Benefits and found that the alleged lack of a good faith effort to resolve the issues claimed in the Petition prior to filing is not a basis to dismiss where the Petition includes on its face the requisite certification.
Summary: The JCC found that under the case law, where a Petition for Benefits includes on its face the requisite certification of a good faith effort, a Petition may not be dismissed because F.S. §440.192 does not give a JCC the authority to “go behind” counsel’s representation of a good faith effort to resolve the dispute in the Petition. The JCC relied on the four corners of the Petition which included on its face the requisite certification of a good faith effort.
Carl Ledin v. Salemi’s Body Shop/Travelers Insurance
JCC Massey; Tampa District; Order Date: January 22, 2016
OJCC Case: 15-012826MAM; D/A: 5/11/2015
Claimant’s Counsel: Jeffrey Appel
Employer/Carrier’s Counsel: Anne Dinan
Briefly: ATTENDANT CARE – JCC Massey granted the claim for attendant care benefits without a written prescription and found that, upon discharge from the hospital, the claimant needed a significant amount of assistance with his activities of daily living due to leg weakness, inability to stand, and balance issues.
Summary: The JCC found the fact there was no written prescription for attendant care was not dispositive as the Employer/Carrier has an affirmative duty to monitor a claimant’s injuries, medical treatment, and provide needed benefits.
The JCC rejected the Employer/Carrier’s argument that they properly and adequately monitored claimant’s condition by reviewing the medical records when they came in, as there is nothing in the records to indicate the claimant was in need of attendant care or to even trigger an investigation for the need for attendant care. The JCC found this argument focuses solely on whether there is an actual recommendation for “attendant care.” Instead, the JCC found there were other indications of the potential need for attendant care in this case.
For instance, the claimant was sent home from the VA Hospital with a walker to assist him with ambulation due to severe leg weakness, balance issues, and his inability to walk without an assistive device. Most significantly, the JCC noted that the claimant was prescribed a wheelchair. Under these circumstances, the JCC found the Employer/Carrier was on notice that the claimant was most likely in need of some kind of assistance, yet took no affirmative steps to advise or inform the doctor, or the claimant, of the statutory requirements or to further investigate the need for assistance.
Felicia Hudson v. Mount Sinai Medical Center/OptaComp
JCC Hill; Miami District; Order Date: January 22, 2016
OJCC Case: 10-020474CMH; D/A: 6/8/2010
Claimant’s Counsel: Michael S. Elstein
Employer/Carrier’s Counsel: Bernard Probst
Briefly: ATTORNEY FEES; 104-WEEKS; PTD –The JCC found the claimant is permanently and totally disabled and that she exhausted her entitlement to 104 weeks of temporary disability benefits and remains totally disabled on a medical basis. Attorney fees were awarded due to a more than thirty day delay in acceptance of the claimant as PTD following the filing of the Petition for Benefits.
Summary: The JCC found the claimant is at maximum medical improvement by operation of law and is eligible to prove her entitlement to permanent total disability benefits. The JCC found the claimant satisfied her burden of proof that she is unable to engage in at least sedentary employment within a 50-mile radius of her residence due to physical and psychiatric restrictions and limitations.
The JCC noted that permanent total disability status was administratively accepted by the Employer/Carrier and payments were issued under the decision in Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla 1st DCA 2013). The Employer/Carrier asserted that its administrative acceptance of “Westphal PTD” must be considered timely, defeating any entitlement to attorney’s fees and costs. However, the claim for Employer/Carrier-paid attorney’s fees and prevailing party costs was granted on the grounds that the Employer/Carrier did not administratively accept that the claimant as permanent total disabled until well beyond the thirty-day window.
Marjorie Baisley v. Darden Restaurants d/b/a Olive Garden/Liberty Insurance Corporation
JCC McAliley; Port St. Lucie District; Order Date: January 22, 2016
OJCC Case: 13-017877RDM; D/A: 2/9/2012
Claimant’s Counsel: Michael K. Horowitz
Employer/Carrier’s Counsel: Henry J. Roman
Briefly: ONE-TIME CHANGE – JCC McAliley granted the request for a one-time change in physicians and authorized Dr. Omar Hussamy to provide the claimant with orthopedic care. The JCC rejected the Employer/Carrier’s argument that the claimant exercised her right to a one-time change previously via a telephone call with the adjuster.
Summary: The JCC accepted the testimony of the claimant as believable. The claimant testified that she called the adjuster and requested a second opinion. The JCC found that the conversation with the adjuster did not constitute a “written request of the employee” for a one-time change pursuant to F.S. §440.13(2)(f).
The JCC emphasized that a “written request” facilitates the efficient resolution of the claim under the statute.
James Chirco v. Daytona Beach Police Dept./City of Daytona Beach-Risk Management
JCC Anderson; Daytona Beach District; Order Date: January 22, 2016
OJCC Case: 15-008455WWA; D/A: 3/21/2015
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Gregory McDole
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Anderson determined claimant’s heart disease is compensable and noted that the Expert Medical Advisor did not opine that the cause of the claimant’s disabling heart disease was due to any particular risk factor or combination of risk factors.
Summary: The JCC rejected the Employer/Carrier’s argument that the Expert Medical Advisor’s testimony amounts to an opinion that the major contributing cause or causes of claimant’s heart condition are not work-related. The JCC found that the Expert Medical Advisor, Dr. Perloff, could not opine that the claimant’s heart condition was “definitely” due to non-work related factors. Based upon the totality of evidence, the JCC concluded the major contributing cause or causes of claimant’s disabling heart disease are unknown.