Briefly Speaking – Case Law Summaries (1/21/19)

William R. Kogler v. City of Palm Coast and FL League of Cities/Work Comp Claims Department

JCC Anderson: Daytona Beach District                                    Order Date: 12/27/18 

OJCC Case: # 18-005944                                                           Date of Accident: 6/5/17

Claimant’s Counsel:     Darren Coleman & Roman Diveev       E/C’s Counsel:  Sean S. O’Connor

JCC Order: Click Here  

Briefly: 120 Day pay and investigate, Surgery, TPD  

Summary:  The claimant was injured in a compensable workplace accident when he injured his left wrist and low back. The claimant received treatment for his left wrist and was placed at MMI with a 0% PIR. The claimant was authorized to treat with an urgent care clinic for his low back. The E/C sent a 120 letter on the back injury. Throughout the claimant’s treatment for his lower back with the authorized treating providers, there were reports of significant pre-existing conditions in his lower spine including a prior MRI showing a herniated disc at the same level as the post-accident MRI. The claimant then treated with a spine surgeon. Based on the pre-existing conditions, he placed the claimant at MMI with no impairment. The claimant obtained a one-time change in physician who recommended an L4 – L5 laminectomy, but agreed with the prior physician that the herniation pre-existed the industrial accident and opined that the major contributing cause (MCC) of the need for the surgery was the pre-existing condition. The claimant filed a PFB for the surgery and indemnity benefits. The E/C contested the authorization of the surgery defending that the MCC of the need for the surgery was the pre-existing condition and not the work accident.

Claimant’s counsel argued that the E/C waived their right to contest the MCC of the need for the surgery by not denying treatment of the herniated disc within 120-days. The JCC agreed with the claimant, reasoning that the E/C provided treatment specifically for the herniated disc with knowledge of the pre-existing condition and failed to deny it within 120 days. The JCC ordered the surgery and continuing TPD benefits.  

Kenworth M. Henry v. FSIGA for Payroll Management, Inc. and Commercial Risk Management, Inc.

JCC Lewis: Ft. Lauderdale District                                           Order Date: 12/26/18

OJCC Case: # 13-019204                                                           Date of Accident: 6/17/13

Claimant’s Counsel:     Pro Se                                                 E/C’s Counsel:  Robert Rodriguez  

JCC Order: Click Here  

Briefly: Unrepresented Claimant, Statute of Limitations  

Summary:  The claimant was injured in a compensable workplace accident on 6/17/13 where he sustained a laceration to his right hand due to a broken window on a truck.  The claimant testified that he continued to work after the accident, but his hand became infected and did not heal properly. The claimant filed a PFB requesting an AWW adjustment, authorization of medical treatment, authorization of the orthopedic doctor, compensability, and PICA. The E/C defended that the statute of limitations had run because the claimant’s prior PFB’s were either filed against the incorrect employer or previously dismissed. Additionally, the E/C argued that the 1/19/18 PFB was barred by the statute of limitations (SOL) against the proper employer and insurer. The JCC disagreed with the E/C and indicated that a prior attorney filed a notice of appearance back in 2017 and the proper E/C was entered as substituted parties on 12/28/17. Prior to that, the claimant filed a notice of voluntary dismissal on 4/6/17, but reserved jurisdiction on attorney’s fees and costs.  According to case law, the fee reservation tolled the SOL.  Ultimately, although the JCC ruled that the claims were not barred by the SOL and that the claim was compensable, the JCC denied the claimant’s request for an upward adjustment of average weekly wage and continued authorization of a medical doctor. The JCC reasoned that the claimant did not provide any medical evidence to substantiate the medical necessity of continued care and did not meet his burden in proving the affirmative defenses plead in the pretrial stipulation. 

Mark Robeson v. City of Cape Coral and Commercial Risk Management, Inc.

JCC Clark: Ft. Myers District                                                     Order Date: 1/4/19

OJCC Case: # 18-015087                                                           Date of Accident: 12/16/14

Claimant’s Counsel:     Douglas Mohney & Michael Sexton     E/C’s Counsel:  Russell Whittle  

JCC Order: Click Here  

Briefly: Permanent Total Disability  

Summary:   The claimant sustained a compensable workplace injury as result of an electrical shock injury while working on a submerged well pump motor. Following the accident, the claimant had complaints of severe headaches, uncontrolled crying, and head and neck pain. The claimant was diagnosed with pseudobulbar affect which was related to the electrical injury. The claimant received treatment from an authorized psychologist and was treated primarily for stress, anxiety, and depression. The doctor opined that the claimant was suffering from a neurological disorder and not a psychological disorder. Eventually, the claimant’s authorized treating neurologist placed the claimant at MMI with a 21% PIR

The claimant filed a PFB seeking PTD benefits.  During his testimony, the claimant indicated that he had returned to work following his accident and all of his job duties were lighter and scaled-back. Claimant admitted that he could return to his old job duties if his only problems were headaches and neck pain, but he could no longer work through his pseudobulbar symptoms. At trial, the claimant testified that he had not performed any job searches since he stopped working for the insured employer, and did not put forth any evidence of any physical restriction that would prevent him from performing sedentary work, nor did he provide any evidence from a an expert indicating that the claimant could not find work based on his physical restrictions coupled with any vocational limitations.  However, the claimant argued that he was entitled to PTD benefits based on 440.15(1)(b) which states a claimant is presumed to be PTD if he can prove up a severe brain injury which causes communication disturbances and neurological disorders. The JCC found that based on the neurologist’s unrefuted medical opinion regarding the claimant’s condition, his injury fell squarely within the presumption. The JCC ruled that the E/C failed to provide sufficient evidence to overcome the presumption and as such, awarded PTD benefits.