Briefly Speaking (5/9/2022)

Michael Keogh v. Haifa Limestone and Amerisure Insurance

JCC Stephenson:   West Palm Beach District                           Order date:   3/29/2022

OJCC Case:   19-018823CJS                                                             Date of Accident:    2/12/2016

Victorious Attorney: Ryan Knight- Miami Office

Order:   Click Here

Briefly:  Permanent Total Disability

Summary:    The claimant was involved in a work-related accident when he fell from the top of a 40-foot container and lost consciousness. He woke up at the ER, where he was diagnosed with a closed head injury and laceration to the scalp. The Claimant subsequently returned to light duty work for the insured for some time and worked for another company, despite being on a “no work” status by authorized providers, until he voluntarily resigned following a non-work related MVA. During this time, the claimant was receiving treatment from a psychiatrist, and outside of some unsteadiness, dizziness, hearing loss, and cognitive issues, the claimant had recovered from his physical injuries.  After obtaining MMI from an ENT perspective, the claimant filed for PTD benefits. The ENT opined that the injured worker could return to work as tolerated. E/C denied PTD benefits, arguing that the claimant was not presumptively PTD, and that a PTD claim was not ripe because the claimant had not reached overall MMI.   After reviewing all of the medical evidence, the JCC agreed with the E/C and found that there was no competent substantial evidence that the claimant was entitled to PTD benefits, as Claimant failed to prove that based on the physical limitation of the ENT conditions alone, he was permanently incapable of performing at least sedentary employment. Also, as Claimant had not looked for work since resigning after an MVA, he also failed to perform an exhaustive work search.


Kirk Hysell v. Keller’s Automotive Services, Inc. and USIS

JCC Young:   St. Pete District                                                        Order date:   4/21/2022

OJCC Case:   21-009440RLY                                                          Date of Accident:    1/5/2021

Order:   Click Here

Briefly:  Temporary Partial Disability

Summary:   The Claimant suffered a work-related accident to the lower back while lifting. The accident was deemed compensable and the claimant was authorized to treat with an orthopedic specialist.  Claimant was placed on work restrictions and the employer offered light-duty work to the claimant within these restrictions. Claimant declined the position and requested a one-time change in physician. Accordingly, the E/C denied indemnity benefits during the period in which the claimant declined light-duty work.  However, following a one-time change in physician, the doctor increased the severity of the claimant’s restrictions, and it was unclear from the testimony as to whether the new restrictions were being accommodated by the employer. The E/C argued that the claimant voluntarily limited his income by declining the light duty work.  Ultimately, the JCC ruled that when the one-time change increased restrictions, there was no specific evidence of a light-duty job offer that included the more severe restrictions, so the judge awarded indemnity benefits for the gap period following the change in restrictions, but denied indemnity for the period between the increase in restrictions and the offer of light duty on the basis of voluntary limitation of income. 


Cristian Mejia v. Southeast Concrete Construction LLC and Gallagher Bassett Services, Inc.

JCC Ring:   Ft. Lauderdale District                                              Order date:   4/26/2022

OJCC Case:   20-012411                                                                    Date of Accident:    5/19/2020

Order:   Click Here

Briefly:  Fraud/Misrepresentation and MCC

Summary:   The claimant was injured in a work-related accident and was treating for same when the E/C denied the claim for fraud/misrepresentation. E/C alleged two statements as misrepresentation: DWC-19s alleging no work for a period that Claimant admitted in his deposition he had worked and a statement to his IME provider that he had not worked since the accident. The JCC found the injured worker to be credible and pointed to the language barrier, the carrier sending DWC-19s to the injured worker in English and without a cover letter explaining completion of the forms despite knowing the Claimant required a translator for his deposition, and the fact that the Claimant’s IME provider testified that obtaining a history from the injured worker was difficult due to the language barrier as insufficient evidence of false statements by the injured worker. In the alternative, the E/C also denied continuing medical benefits arguing that the MCC of the need for additional treatment and restrictions was not the work accident based on the authorized physician’s opinions that the claimant had reached MMI with a 0% rating. The JCC determined that the claimant failed to meet his burden of proving that the work accident was the MCC of the need for additional medical and indemnity benefits and the claimant’s requests for benefits were ultimately denied.


DSK Group, Inc. and Zurich American Insurance Company v. Jorge Zayas Hernandez

First DCA Judges: Tannenbaum, Bilbery, and Winokur      Order date:  4/27/2022

JCC Rosen:   St. Pete District                                                         Order date:   4/17/2019

OJCC Case:   18-025413RLY                                                           Date of Accident:    8/9/2018

Appellate Order:   Click Here

Briefly:  Going and Coming

Summary:    Claimant worked as a laborer mainly doing remodeling jobs at homes where he was an hourly wage earner, paid once he clocked in at the job site and ending after he clocked out when leaving the job site. Claimant was not paid during the times of travel but was provided a gas credit card to offset some of the fuel expenses that were related to work. The accident at issue occurred while the Claimant was driving from his home to a job site. He was involved in a collision with a drunk driver. In arguing for compensability of his claim, Claimant argued that he was a traveling employee within the exception of the going and comping rule.  At the JCC level the judge ruled that the accident was compensable based on the findings that the claimant was a field employee for the insured, was transporting materials and tools in his vehicle, and was given a gas allowance. The E/C appealed the decision and the First DCA reversed, holding that the JCC was mistakenly finding that the going and coming rule only applies to worker’s commute between home and the employers’ owned premises. The First DCA distinguished prior traveling employee cases and ruled that those cases were different because the traveling employee was traveling between two compensated portions of their job and the travel itself was part of the work. In the instant case, the claimant was a typical commuting employee whose compensation started only upon his arrival at work and ended upon his departure for home at the end of the day and the travel was not part of the work to be performed.