Briefly Speaking – Case Law Summaries (1/30/19)

James, Christopher Kyle vs. Elite Signs & Graphics, O Town Graphix, LLC

JCC Anderson: Daytona Beach District      Order Date: 1/7/2019

OJCC Case:   18-015445WWA                     Date of Accident: 5/15/2018

Claimant’s Counsel:  Michael MacDonald  E/C’s Counsel:  Shari Hall

JCC Order: Click Here

Briefly: Compensability (course and scope)  

Summary:  Claimant worked for the insured as a sign installer/fabricator, both on the insured’s premises and at Claimant’s home with the insured’s permission. Claimant was given permission to work from home on three large signs for the insured. Two of the three signs were left in Claimant’s yard for some time. Claimant testified that he and the insured agreed that Claimant would dispose of the signs which were in his yard. As he was lifting one of the signs, Claimant injured his back. The insured testified that he was not aware Claimant would be disposing of the signs on company time, but did not tell Claimant not to do so. E/C denied compensability of the injury, arguing that the incident did not occur within the course and scope of Claimant’s employment. The JCC found the injury to have occurred within the “space limits” of Claimant’s employment, as the insured gave permission for the signs to be fabricated/remain at Claimant’s home and knew Claimant would be disposing of them, as well as the “time limits” of the employment, as the injury occurred while Claimant was signed in and receiving payment from the insured. As such, the accident was found to occur in the course and scope of employment. 

Gomez-Medero, Yoel vs. ABM Aviation, Inc.

JCC Massey: Tampa District                       Order Date: 1/4/2019

OJCC Case:   18-012670MAM                    Date of Accident: 2/10/2018

Claimant’s Counsel:  Charles W. Smith       E/C’s Counsel:  Mary Frances Nelson

JCC Order: Click Here

Briefly:  Indemnity & medical benefits   

Summary:  Claimant, a bus driver, injured his back lifting luggage onto the bus. The injury was accepted as compensable and Claimant was authorized to treat with an authorized provider. This provider put Claimant at MMI with a 0% PIR after several visits, noting symptom magnification, inconsistent physical findings, and negative diagnostics. In the interim, Claimant had gone to the hospital for emergency treatment on two occasions regarding his back. This care was not authorized and the carrier did not pay for it. Claimant obtained an IME who opined that the Claimant was not at MMI and should be on light duty restrictions. Claimant then sought TPD benefits. The JCC found Claimant to be at MMI based on the opinions of the authorized providers treating Claimant immediately after the alleged accident, which were supported by negative diagnostics and lack of objective findings, and not the subjective complaints presented to the IME provider. The JCC did order the E/C to pay for the ER hospital visits, however, noting that the care received was “emergency services and care” under F.S. 440.13(l)(e), as evaluation/care was provided by a licensed provider to determine if an emergency medical condition (back pain radiating to the lower extremity) was present. 

Pattison, Darlene T. vs. City of Tampa

Judge Newman: Tampa District                   Order Date: 1/7/2019

OJCC Case:   17-030059JLN                       Date of Accident: 12/31/2007

Claimant’s Counsel:  Michael J. Winer       E/C’s Counsel:  Stephen M. Barbas        

JCC Order: Click Here

Briefly:  One time change   

Summary:  Claimant was injured as a result of a work-related motor vehicle accident and authorized to treat with an orthopedic surgeon. Claimant became dissatisfied with her care and contacted the carrier to discuss it, at which time Claimant was referred to a different orthopedic surgeon. This second provider evaluated the claimant once and did not provide follow up care. E/C then referred Claimant to a third orthopedic surgeon that has treated Claimant ongoing. E/C contends either of these instances exhausted Claimant’s one-time change in physician. Claimant argues that she did not exercise her one-time change until she did so in writing. She requested the surgery recommended by her current authorized provider. E/C did not respond to this request. At trial, the E/C pointed to a previous letter from the Claimant that had resulted in her referral to the second provider. They could not produce the letter, instead referencing “log notes” that documented the alleged letter. The previous correspondence from Claimant specifically asked for a second opinion, not a one-time change. There is no evidence that a written request for a one-time change was made. As such, Claimant was found entitled to exercise her one-time change and, because the carrier failed to respond within 5 days of the request, Claimant was allowed to select the provider within the same area of practice. Claimant also sought indemnity benefits on the basis of her provider rescinding MMI for surgery, but because Claimant canceled the surgery due to anxiety over it, the provider retracted this change. Claimant was found to remain at MMI, and no indemnity benefits were due or owing.

Reynolds, Karen vs. Anixter Power Solutions

JCC Sculco: Orlando District                        Order Date: 1/8/2019

OJCC Case:   18-013229TWS                      Date of Accident: 4/18/2018

Claimant’s Counsel:  David I. Rickey          E/C’s Counsel:  Eric R. Eide

JCC Order: Click Here

Briefly:  Compensability (course and scope)   

Summary:  Claimant was participating in a non-mandatory, team-building bowling event when she slipped and injured her ankle.  This team/morale building event was held off-premises, but during regular work hours and participating employees were paid by the insured. E/C denied compensability of the injury as a recreational/social activity not expressly required by the employer. The JCC found the bowling event to be a recreational activity where Claimant’s attendance was not required and which did not “produce a substantial direct benefit to the employer beyond improvement in employee health and morale” under Whitehead. It was not enough that Claimant was paid to be present at same. Denial of the ankle injury was upheld.