Briefly Speaking – Case Law Updates (11/13/20)

Bruce Lieske v. Airco Aviation Services, LLC and Gallagher Bassett Services, Inc.

JCC Owens: Port St. Lucie District                               Order Date: 10/12/2020

OJCC Case: # 20-008054                                               Date of Accident: 11/11/2019

Claimant’s Counsel:     Richard Robbins                       E/C Counsel: Scott B. Miller

JCC Order: Click Here  

Briefly: Major Contributing Cause

Summary:  The claimant sustained a heart attack, alleging it was the result of his work-related activities. The E/C denied the claim in its entirety arguing that the injury did not arise out of the employment. The claimant was employed with the insured and part of his job duties included loading and unloading bags from airplanes and estimated that in an average day, he lifted about 300 to 400 bags. The claimant testified that on the date of the accident, he worked by himself which caused him to overexert himself in the Florida heat and lift nearly double the amount of bags he would on a normal basis. The claimant testified that he was exhausted, and began having chest pains. The claimant suffered a heart attack and was transported to the hospital and then airlifted to a nearby hospital.

Both parties retained an IME and each expert had a different explanation as to what caused the claimant’s heart attack. The JCC reviewed the IME opinions as to major contributing cause and found the claimant’s IME’s opinion to be more credible and in accord with logic and reasoning. Based on that finding, the JCC deemed the accident and corresponding heart attack compensable, and awarded medical and indemnity benefits, and required the E/C to pay all of the medical bills stemming from the work-related heart attack.

Roberto Hernandez-Regalado v. Suncoast Painting LLC and Florida Citrus, Business & Industries Fund

JCC Grindal: Sarasota District                                                  Order Date: 10/15/2020

OJCC Case: #20-002188                                                            Date of Accident: 11/11/2019

Claimant’s Counsel:     Michael Winer                                        E/C’s Counsel: Allyson Mcinvale

JCC Order: Click Here  

Briefly: Arising out of/course & Scope

Summary:  The E/C disputed that there was an accident or injury in the course and scope of the employment, and argued that the claimant entered into an implied contract for hire with another employer on the job site which led to the claimant’s accident and injuries. While on the job site, the claimant was approached by an employee of a different company to help with unloading of furniture from a semi-truck. The JCC heard testimony from multiple witnesses who were present on the date of accident,  There was some dispute as to whether the insured employer acquiesced to his employees working for the other employer or not and what that understanding was.

In support of their claim, the claimant attempted to argue that there is a general course of conduct among tradesmen from different companies working on the same job site establishing an expectation that they will assist each other should, additional labor be required. The JCC specifically rejected this assertion by the claimant and found that the claimant’s agreement to move furniture was a deviation from his employment, such that it did not fall within the course and scope of his employment as a painter for the insured employer. Accordingly, the JCC denied and dismissed all requests for indemnity and medical benefits with prejudice.

Abigail Bonifacio Itzep Poroy v. Essential HR, Inc. d/b/a First Star HR and Sunz Insurance

JCC Newman: Sarasota District                                                Order Date: 10/15/2020

OJCC Case: # 19-022185                                                           Date of Accident: 8/20/2019

Claimant’s Counsel:     Christopher L. Petruccelli                    E/C’s Counsel: Louis Stern

JCC Order: Click Here  

Briefly: Authorization of Medical Care

Summary:   The claimant was injured in a compensable workplace accident in which he fell off of a roof, fracturing his right femur, his right arm, and suffering multiple facial fractures and fractured teeth. The claimant received emergency medical care from a hospital where he underwent surgery for the leg and arm, and then was subsequently released by the authorized physician for full duty work and placed at MMI with a 2% impairment rating. The claimant continued to seek treatment for his facial fractures and tooth fractures and was recommended for final restoration with fixed prosthetics and dental implants.

The E/C denied the recommended treatment and argued that the permanent prosthetics was not medically necessary, and that removable prosthetics would be satisfactory. The JCC analyzed the medical necessity test and considered whether the E/C waived their right to challenge medical necessity under the 10 day response rule. The JCC found in favor of the claimant, reasoning that the claimant met his burden in establishing the medical necessity of the more permanent treatment recommended.

Jeffrey A. Coker v. Mosaic Fertilizer, LLC and Gallagher Bassett Services, Inc.

JCC Young: Tampa District                                                      Order Date: 10/16/2020

OJCC Case: # 19-029380                                                           Date of Accident: 5/15/2019

Claimant’s Counsel:     Nicolette Tsambis                                  E/C’s Counsel: Gwen Jacobs

JCC Order: Click Here  

Briefly: Misconduct, Repetitive Trauma, Fraud/Misrepresentation, Notice

Summary:  The E/C defended the compensability of this claim and denied the corresponding benefits requested for multiple reasons including misconduct, fraud/misrepresentation, and failure to provide proper notice. The claimant had worked for this insured employer for more than 25 years and worked a variety of different types of jobs within the company, including heavy mechanical work, and lifting and moving items. The claimant pursued a repetitive trauma claim and argued that he sustained an injury to the left shoulder indicating that his pain became progressively worse over time. Of note, during his time with the insured employer, the claimant had a plethora of disciplinary actions taken against him for unexcused absences, failure to observe safety rules, and including warnings and suspensions for disrespecting supervisors and using inappropriate language, which eventually led to the claimant being directed to leave the premises and was escorted off the property by security. The claimant continued to have the same type of behavior even after he was brought back and given one more chance to correct his ways.

With respect to the notice defense, The JCC reviewed the claimant’s testimony at his deposition and at the trial, and found that the claimant had knowledge that his shoulder problems could have been stemming from his work activities as far back as two years prior to the work accident. For repetitive trauma cases, the claimant must provide notice within 30 days of the time a reasonable person should recognize the nature, seriousness, and probable compensable character of his injury or disease; the court found that the claimant failed to provide proper notice.   Additionally, the JCC also reviewed all of the medical evidence presented, and found that the claimant did not meet his burden in proving by clear and convincing evidence that the work accident and repetitive injury alleged was the MCC of the shoulder condition and need for treatment.

 Accordingly, the JCC denied compensability of the left shoulder injury and condition, and denied all corresponding request for benefits with prejudice.