Briefly Speaking – Case Law Updates (11/25/20)

Adriana Santiago v. SBA Communication Corp.

JCC Hedler:   West Palm Beach District                            Order date:   11/4/2020 

OJCC Case:   20-001834TAH                                          Date of Accident:   11/25/2019

Claimant’s Counsel:   Brian Vassallo                           E/C’s Counsel:   Sal Richardson & Anya Francis

JCC Order:   Click Here

Briefly:  Arising out of”/Course and Scope   

Summary:   The Claimant suffered an injury to her shoulder when she threw her arm out to prevent herself from falling when she tripped while walking to her work station at the beginning of the day.  After an EMA provider agreed that the accident at work, and not a prior yoga injury, was the major contributing cause of the work accident, the E/C argued that the accident was not compensable because it did not “arise out of” the employment. The court analyzed whether the injured worker was in the “course and scope” and found that because she was on the employer’s premises on the way to her desk to clock in, she was in the “course and scope” of her employment. The JCC discussed the holding in Valcourt-Williams, noting that it was not in-line with prior precedent, and stated that the decision, which is law, requires that a compensable injury must arise out of the employment. Accordingly, because nothing related to the Claimant’s work caused her to fall and, as the Claimant noted in her own deposition, the injury could have happened anywhere, there was nothing about her employment that contributed to the risk of the injury. The JCC found no “occupational causation” under Valcourt-Williams, deeming the accident not to arise out of the Claimant’s employment. Accordingly, the Claimant did not meet her burden of establishing compensability of her injury.

Jessica Schultz  v. Nike, Inc.

JCC Clark:   Ft. Myers District                                       Order date: 10/23/2020

OJCC Case:   19-010105FJC                                             Date of Accident:   10/5/2018

Claimant’s Counsel:   Mark Touby                                E/C’s Counsel:   Sal Richardson

JCC Order:   Click Here

Briefly:  MCC/EMA & Authorization of Care

Summary:   The Claimant was hit on the head by a mannequin at work. The carrier accepted as compensable post-concussive syndrome and cervical sprain superimposed on Claimant’s pre-existing stenosis, only. Claimant’s authorized provider recommended the injured worker see an osteopathic physician for “gentle traction” and recommended wrist and back braces. The E/C denied these referrals. IMEs were obtained and the court appointed an EMA. The court-appointed EMA found that the osteopathic referrals and wrist/back braces were all medically necessary and related to the work accident as a cervical/head injury could misalign the spine and refer pain to the lower back, and wrist pain could result from the injury to the cervical spine. Accordingly, the JCC agreed with the EMA and approved the referrals for wrist splints, back brace, and osteopathic treatment.

Tom Columbano v. City of Miami Beach

JCC Medina-Shore:   Miami District                            Order date: 11/19/2020

OJCC Case:   19-012728SMS                                            Date of Accident:   8/3/2004

Claimant’s Counsel:   James Spears                            E/C’s Counsel:   Luis F. Estrada

JCC Order:   Click Here

Briefly:  Permanent Impairment Benefits  

Summary:   The Claimant has compensable hypertension under the “heart bill” with a date of disablement/injury of 8/3/2004. The Claimant continues to treat with an authorized cardiologist. The Claimant’s authorized provider assigned MMI with a 0% PIR on 12/1/2005. The Claimant obtained underwent IME evaluations on 3/22/2019 and 2/4/2020 and was assigned an impairment rating of 31%. E/C also obtained an IME that assigned a 5% PIR for Claimant’s hypertension. A Motion in Limine was filed requesting the opinion of the IME assigning the 31% PIR be rejected. The JCC agreed, as the requirements under the Florida Uniform Permanent Impairment rating for a 31% or more impairment rating for hypertension would require the injured worker to consistently have high blood pressure readings, which the IME provider admitted the Claimant did not. The Claimant’s PFB sought payment of IBs using the 31% PIR. The JCC denied this benefit and that any conflict existed, as the opinion of the IME provider was disregarded by way of granting E/C’s Motion in Limine.

Ronald McKenzie v. Hi Rise Crane, Inc.

JCC Forte:   Ft. Lauderdale District                              Order date: 10/30/2020

OJCC Case: 18-004070IF                                               Date of Accident:   1/26/2018

Claimant’s Counsel:   Edward Busch                           E/C’s Counsel:   Gil Godfrey

JCC Order:   Click Here

Briefly:  Standing / Guardianship/Estate

Summary:   The injured worker passed away in 2018. His attorney filed a Petition naming the injured worker’s sister as personal representative of the estate. The E/C deposed the injured worker’s sister and found that at the time of the filing of the PFB, the injured worker’s sister had not been appointment as the personal representative of her brother’s estate. The C/A admitted that he filed the PFB knowing that the sister was not yet assigned as personal representative because the SOL was about to expire, stating that the sister has since been appointed personal representative so the deficit has been cured. The JCC found that the C/A did not have legal authority to file his PFB, as he used a certificate of good faith signed by the deceased when filing the PFB. The JCC stated that death terminates the attorney-client relationship, and the attorney’s authority to act on the client’s behalf is likewise extinguished. As such, the sister was required to sign the Fraud Attestation required when filing a PFB. The C/A argued that he could not have the sister sign the attestation due to time constraints, but the JCC felt it more likely that the C/A knew that having the sister allege she was a personal representative and sign off the fraud statement would be insurance fraud. Accordingly, the PFB was dismissed as null and void.

Hector A. Delgado v. Atlas Carpet Center Inc., Aiden Construction, LLC

JCC Jacobs:   Miami District                                          Order date: 10/29/2020

OJCC Case:   20-002924JIJ                                            Date of Accident:   12/16/2019

Claimant’s Counsel:   Roberto Ramirez                      E/C’s Counsel – Atlas:   Cristina Linares-Obeso &

                                             Joshua Day                                 E/C’s Counsel – Aiden: Ana Maria Gonzalez-Garcia

JCC Order:   Click Here

Briefly:  Fraud/Misrepresentation

Summary:   The Claimant was installing tile at a construction project when he allegedly injured his back. He filed a PFB against Atlas and Aiden for medical and indemnity benefits. Atlas was a subcontractor who hired Aiden to install tile. The purported employers both denied the claims. Aiden alleged that the Claimant made oral and written misrepresentations to the IME provider as one of the bases of denial. The injured worker obtained an IME and the intake paperwork, which was in Spanish, inquired about prior back injuries, to which the injured worker answered in the negative. The E/C also obtained an IME and the intake, in English but translated to Spanish for the injured worker, asked about prior hospitalizations for back pain or similar problems, to which the injured worker again answered in the negative. The Claimant was found to have a prior work accident in 2012 for low back pain. Accordingly, the JCC found that the injured worker made written misrepresentations in the questionnaires completed for the IME providers. Accordingly, the PFBs were dismissed with prejudice.