Editor: Felicia Wymer, Partner, Pensacola Office
Author: Travis Coleman, Junior Partner, Tampa Office
Author: Katie Valley, Associate, Jacksonville Office
Robert J. Bashore v. Dunbar Armored, Inc. and Twin City Fire Insurance Company
JCC Pitts: Orlando District Order date: 3/7/2025
OJCC Case: 17-006033NPP Date of Accident: 1/13/2015
JCC Order: Click Here
Briefly: PTD
Summary: The claimant, an 86-year-old man, was working as a driver/guard of an armored car when he sustained a compensable low back injury lifting a bag of coins. On September 13, 2017, he was voluntarily accepted as PTD as of January 31, 2017, and a retroactive lump sum payment was issued to bring his PTD up to date. Pursuant to Fla. Stat. 440.15, the claimant was paid PTD benefits for 5 years/261 weeks and 1 day, which was statutorily exhausted on February 1, 2022. On October 3, 2022, a Petition for Benefits was filed requesting PTD from February 1, 2022, and continuing, as well as for medical and PICA. The claimant contended that he was entitled to 5 years of benefits payable from the date of the determination of permanent total disability, which was made on September 14, 2017. Therefore, he would be entitled to PTD through September 14, 2022, not February 1, 2022. The E/C argued that the claimant’s entitlement to PTD benefits was limited to a five-year period regardless of when the date of the determination was made. The JCC stated that, had the legislature intended for the period of PTD benefits to be limited to a defined and precise period not to exceed 5 years, it would have chosen different wording when it defined the limitation period. Further, the JCC held that the five-year limit for PTD benefits began from the date the claimant was recognized as PTD, which was administratively accepted on September 14, 2017, not January 31, 2017.
__________________________________________________________________
Brennan Smith v. Dick Smith Air Conditioning & Refrigeration, Inc. and Zenith Insurance Company
JCC Forte: Ft. Lauderdale District Order date: 3/7/2025
OJCC Case: 23-022673IF Date of Accident: 8/17/2023
JCC Order: Click Here
Briefly: Course & Scope
Summary: On August 17, 2023, the claimant was injured when he fell off a roof at a Marathon gas station. The claimant was an on-call A/C technician. After leaving a job, the claimant had obtained permission from his employer to repair his broken phone. After leaving the phone repair store, the claimant stopped at a Marathon gas station to get a soda. When he walked inside the store, he noticed that it was very hot. When the Claimant was paying for his soda at the counter, he spoke to the store clerk who told him the A/C was broken. The Claimant testified that the clerk spoke broken English, but he understood the clerk to ask him to service the A/C and gave him permission to get on the roof where the A/C handler is located. The claimant was a frequent patron of this gas station. He was also wearing his uniform with the company logo. After getting on the roof, the claimant fell, sustaining severe injuries to his head, wrist, ribs, and jaw. The claimant acknowledged that the gas station was not one of the company’s clients, nor was he dispatched to service this business. He admitted that no estimate for the work was given and there was no guarantee of payment. The employer testified that, while it is within the employee’s authority to go out and get business, they are not to enter property when they’ve been told not to. The gas station clerk later testified that he unequivocally told the claimant not to get on the roof, as the A/C had been serviced earlier that day, and the technician was in Boca Raton getting a part to complete the job. He also stated that he did not believe that there were any language barriers or communication issues between the two of them. Also, there was no evidence that the claimant had done any work at all on the A/C handler. The JCC determined that the claimant’s testimony was not credible and therefore held that the claimant had not established a compensable accident. The petition for benefits was therefore denied and dismissed with prejudice.
__________________________________________________________________
Jeffrey Parrott v. Winn Dixie/Sedgwick CMS
JCC Massey: Tampa District Order date: 3/13/2025
OJCC Case: 24-020543MAM Date of Accident: 5/19/2023
JCC Order: Click Here
Briefly: One Time Change
Summary: On 12/23/2024, the carrier received, via email, a written request for a one time change. On 12/24/2024, the adjuster emailed The Orthopedic Institute and claimant’s counsel regarding attempting to schedule with Dr. Troy Lowell. After being advised Dr. Lowell recently retired, the adjuster authorized Dr. Trimble with the same practice. The adjuster did not follow-up again until 1/6/2025, and continued following up on 1/13 and 1/16. On 1/23 the adjuster was notified that Dr. Trimble declined to treat the Claimant. On the same day, the adjuster authorized Dr. Paul Pagano, and an appointment was set for 2/27/2025. The issue at Final Hearing was whether authorization of Dr. Pagano was timely. In making its determination, the JCC opined there was unreasonable delay in the provision of an alternate physician. The alternate physician was not provided until 36 days after the request and the appointment was scheduled for 66 days after the request. The JCC weighed the adjuster’s quick pivots to other doctors upon learning that Dr. Lowell retired, and Dr. Trimble declined to treat the Claimant against the lackof follow-up between 12/24 and 1/6. Additionally, the adjuster was made aware that Dr. Trimble was scheduled out through March, and made no other attempts to find another doctor to see if they could treat the Claimant sooner. The JCC ultimately ruled that the E/C forfeited their right to choose an alternate physician and awarded that right to the Claimant.
__________________________________________________________________
Dorothy Simmons v. Paychex PEO Holdings, LLC/ESIS
JCC Humphries: Jacksonville District Order date: 3/20/2025
OJCC Case: 23-029883RJH Date of Accident: 11/20/2023
JCC Order: Click Here
Briefly: Fraud/Misrepresentation
Summary: The Claimant was involved in a compensable accident on November 20, 2023, injuring her neck, shoulders, and lower back. After the accident, the Claimant treated with an orthopedic doctor, Dr. Rogozinski. She disclosed a prior motor vehicle accident and told the doctor the symptoms from that accident had resolved a couple weeks later. She later testified that she saw a pain management doctor several years later because of that accident. She also failed to inform the doctor of an ER visit for neck treatment (Claimant alleged a stroke) just prior to her work accident, could not recall if the doctor asked about prior injuries, and did not recall being asked to disclose her pain management treatment. On cross, the Claimant was able to recall a respiratory infection, UTI, being on leave in December 2024, a nerve test that was authorized but did not occur, passing her med tech certification, and obtaining her CNA certification. Additionally, the Claimant did not tell Carespot about the 2018 MVA. She denied that the pain management treatment was for injuries sustained in the MVA, but could not explain why she was treating with pain management otherwise. The Claimant testified at the Hearing regarding memory issues and learning disabilities without any medical or lay testimony supporting this. The JCC found that the Claimant to have capable memory without significant impediment except when she blamed the memory or disability for any shortcomings in her testimony or statements to medical professionals. Ultimately, the JCC found that the Claimant was not a credible witness. Based on the Claimant’s evasive testimony, medical reports, and fraudulent representations to the medical providers, the JCC found that the E/C met their burden of proof for misrepresentation and that the Claimant made those false and misleading statements for the purpose of securing further and additional benefits.
__________________________________________________________________
Michael Depold v. City of Cape Coral/Commercial Risk Mgmt
JCC Clark: Ft. Myers District Order date: 4/2/2025
OJCC Case: 24-020651FJC Date of Accident: 3/19/2024
JCC Order: Click Here
Briefly: Fraud/Misrepresentation
Summary: The Claimant was involved in a compensable MVA resulting in injury to his cervical, lumbar, right shoulder, wrist, and trapezius. Care was authorized during the life of the claim with Lee Convenient Care, Dr. Paul Fuchs, and Dr. Jeffrey Richards. The Claimant brought a PFB for TPD benefits, which the E/C denied via fraud defense. The E/C alleged the claimant withheld facts and misrepresented the frequency, recency, and purpose of his visits to Southwest Florida Spinal Care and a chiropractor, all in furtherance of securing workers compensation benefits. During deposition, the Claimant admitted to having degenerative disc disease, could not recall how long he had it, and testified he did not undergo any treatment. The Claimant admitted to treating with a chiropractor but could not recall the doctor’s name and testified that he had treated a couple of years prior. When asked specifically about the chiropractor during the deposition, the Claimant testified that he went for a massage, and no specific event spurred the visit, and he could not recall when he last saw the chiropractor. Based on the medical records, the Claimant first sought chiropractic treatment between September and December 2021. He then returned in July 2023 through November 2023, and then again in June-July 2024. On the intake forms, the Claimant listed his lower back, neck pain, DDD, but was evasive when asked if he received treatment for those body parts. The E/C also included radiology reports showing multiple x-rays and MRIs on the Claimant’s left hip, left leg, neck, and back. Finding that the Claimant made misleading, inaccurate, and incomplete statements, concealed and denied past relevant history regarding injuries, pain, treatment, and diagnostic testing involving compensable body parts, and did so intentionally in furtherance of securing benefits, the JCC found in favor of the E/C and denied ongoing benefits.
__________________________________________________________________