Briefly Speaking (6/7/2022)

Leonard Vassell v. Reyes Fleet Management, LLC and Indemnity Insurance Co. of North America, Sedgwick CMS

JCC Lewis:   Ft. Lauderdale District                            Order date:   5/5/2022    

OJCC Case:   21-015297DAL                                            Date of Accident:    5/25/2021

JCC Order:  Click Here

Briefly:  Arising out of/Course & Scope, Major Contributing Cause, Witness Credibility 

Summary:    The Claimant, a mechanic, had to use a large jack to raise a truck. When he pulled the jack out from under the truck, it malfunctioned and caused him to pull his right arm and right shoulder. Compensability was denied on the basis that the Claimant did not sustain an injury by accident arising out of the and in the course and scope of his employment. The Claimant provided several different accounts of his accident. At Final Hearing, he testified that he pulled the jack out from under the truck; however, in his deposition, he pushed the jack away from the truck when it “took off” and it lifted him off the ground and into the air. The post-accident medical reports indicated that the jack lifted up quickly and swung the Claimant’s arm around. Video footage of the accident revealed that the Claimant was pulling a jack away from the truck when it suddenly fell over. When the jack began to fall, the Claimant ran off. He was not lifted off the ground at all. These various accounts of the Claimant’s accident coupled with the fact that he could not recall receiving a written warning on the date of accident for poor job performance casted doubt on his credibility. In addition to that, the Claimant failed to provide any medical evidence demonstrating that the major contributing cause of his injuries and need for treatment was this incident involving the jack. The JCC found that the Claimant’s own lay testimony was insufficient and not competent. Therefore, compensability was denied.


Francois Guerlande v. Delray Beach Fairfield Inn & Suites

First DCA Judges: Thomas, Kelsey, Nordby             Order date:  5/4/2022

JCC Johnsen:   West Palm Beach District                  Order date:   3/31/2021   

E/C’s Counsel:   David Halpern

OJCC Case:   18-027166GJJ                                         Date of Accident:    9/11/2018

Appellate Order:   Click Here                                        

JCC Order:   Click Here

Briefly:  Permanent and Total Disability  

Summary:   The Claimant sustained compensable injuries to her right wrist/hand and right shoulder and she saw two different orthopedic specialists, respectively. Upon being placed at overall MMI, the authorized hand surgeon assigned permanent sedentary work restrictions, with which the shoulder specialist disagreed. This led to a claim for PTD benefits. An EMA was appointed and vocational experts were secured by each side. The EMA assigned permanent lifting restrictions and deferred to the FCE for the remainder of the work restrictions. The parties agreed that the Claimant is not presumptively PTD as she does not meet the enumerated conditions set forth in the statute; so, in determining whether the Claimant proved entitlement to PTD, the JCC looked at the Claimant’s job search and vocational factors. They found that the Claimant’s job search was not reasonable and her testimony with regards to conducting one was self-serving as she had reported to the vocational experts, prior to trial, that she had not been looking for work. At trial she testified that her son helped her look for work, but she could not provide the names of any alleged prospective employers that she had contacted about work. As for the Claimant’s vocational factors, the JCC accepted the opinions of the E/C’s vocational expert as they were local, had a better understanding of the South Florida job market, searched for jobs for the Claimant in accordance with the EMA’s restrictions, and actually met with the Claimant in person. The JCC found that the Claimant did not meet her burden of proof to demonstrate entitlement to PTD benefits and that her statements and actions were incredible. She exhibited behavior consistent with symptom magnification and over-dramatization, which brought her credibility into question.  The order was appealed and the First DCA issued a per curiam affirmed.


LFI Ft. Pierce and ESIS WC Claims v. Dewayne Holmes, Blue Goose Growers LLC/FFVA Mutual Insurance Company

First DCA Judges: Roberts, Makar, Rowe                 Order date:  5/6/2022

JCC Johnsen:   West Palm Beach District                  Order date:   9/5/2018     

OJCC Case:   18-004578GJJ                                       Date of Accident:    4/16/2015

Appellate Order:   Click Here

Briefly:  Immunity, Going and Coming

Summary:    The Claimant was a passenger in a single-vehicle motor vehicle accident, which rendered him tetraplegic. At the time of his accident, he was a leased employee and was riding home from work with a co-worker when the co-worker passed out due to dehydration and crashed. The Claimant pursued a tort claim in circuit court against both the general employer, Labor Finders, and his special employer, Blue Goose Growers. Blue Goose asserted workers’ compensation immunity and argued that the special hazard exception to the going and coming rule would apply and create a compensable claim for the Claimant. In light of this, the Claimant voluntarily dismissed his tort claims against both employers and pursued benefits under workers’ compensation. At the JCC level, Labor Finders argued that the claim was barred by the going and coming rule and no exception applies; however, the JCC found that they were estopped from making that argument because Blue Goose argued the contrary in circuit court and, as such, they had benefitted from that argument. In addition to that, the JCC found that the co-worker’s dehydration was a special hazard and compensability of the accident was awarded and Labor Finders was deemed to be responsible for providing benefits. The DCA reversed.  They found that estoppel did not apply because both employers have adverse interests and the arguments made by Blue Goose in circuit court did not benefit Labor Finders. The DCA also found that the Claimant did not establish the elements for special hazard.


Shanika Jones v. Publix Super Markets Inc and Publix Risk Management

JCC Arthur:   Lakeland District                                    Order date:   5/11/2022

OJCC Case:   21-022337RAA                                           Date of Accident:   9/6/2020

JCC Order:   Click Here

Briefly:  Temporary Partial Disability

Summary:   The Claimant sustained an injury to her right shoulder when she was lifting rolls of labels. Following the injury, she was placed on work restrictions and her employer provided work within the restrictions at preinjury hours and preinjury wages. About ten months after her work accident, she was terminated as she had progressed through the employer’s disciplinary system until she exceeded a level four, which results in termination. She filed a claim requesting payment of temporary indemnity benefits from the date of accident to present and continuing and testified that she had no income following her termination. The employer has a progressive disciplinary policy in place, where each violation of company rules results in an increase in the level of discipline from level one through level four, and then to termination of employment. Prior to her termination, the Claimant was late to work on multiple occasions and she failed to follow company procedures in product labeling. The act that led to her termination was her failure to make mandated equipment checks on the packaging/labeling system, despite reporting that she had done so. The JCC found that the claimant failed to show a causal connection between her reduction in income and her work injury; thus, she had not established a prima facie case for TPD entitlement following her termination of employment. Benefits were denied.