Briefly Speaking – Case Law Updates (3/11/21)

Edgardo Rossy v. W.S. Badcock Corporation and Commercial Risk Management, Inc.

JCC Arthur: Lakeland District                                       Order Date: 2/12/2021

OJCC Case: # 20-012782                                               Date of Accident: 5/24/2020 , 6/29/2020

Claimant’s Counsel:     Pat T. DiCesare                         E/C Counsel: Juliana L. Curtis

JCC Order: Click Here  

Briefly: Intervening Accident, Arising out of/Course & Scope

Summary:  The claimant in this case was injured in a compensable work related accident involving his right shoulder in the initial date of accident. This litigation revolves around a motor vehicle accident allegedly occurring while returning from an authorized medical appointment. Generally, injuries sustained in an accident while claimant travels to and from authorized medical care is compensable, however the E/C in this case argued that there was a deviation from the route of that medical care which was significant. At that time, a private investigator was actually following the claimant and attempted to re-create the route after losing sight of the claimant. The claimant testified at the hearing that he was actually headed back to work and was following the GPS device on his cell phone.

The E/C attempted to cut off all further benefits for the previously compensable work accident arguing that the substantial deviation by not taking the most direct route back to work caused a non-work related intervening accident which now became the MCC of the claimant’s current condition and need for treatment. The JCC ultimately accepted the testimony of the claimant, and his friend who was in the vehicle with him as well, and found that there was no substantial deviation from the route. As such, the judge found that the subsequent motor vehicle accident arose out of the course and scope of his employment and was compensable.

Ben E. Near v. K Corp Management Inc, G&A Restaurant Management, Inc., Gyarmathy & Associates dba KFC and Employers Assurance Company

JCC Clark: Ft. Myers District                                                     Order Date: 10/15/2020

OJCC Case: #20-003024                                                            Date of Accident: 11/11/2019

Claimant’s Counsel:     Steven Goddard                                    E/C’s Counsel: Daniel T. Jaffe

JCC Order: Click Here  

Briefly: Authorization of Medical Care

Summary:  Claimant sustained a compensable low back on the job injury. The only pending petition for benefits at the time of final hearing was a request for a primary care physician (PCP), as the claimant voluntarily dismissed the indemnity portion of his petitions prior to final hearing. The claimant was timely provided with an orthopedic surgeon but he argued that he had not been provided with a PCP as per the request in his PFB. He argued that he did not have to show that a PCP was medically necessary as the claim was accepted as compensable.

The E/C denied the authorization of the PCP and reasoned that the claimant did not provide any evidence to support his position that he is entitled to another physician in addition to the orthopedic surgeon that was already properly authorized by the E/C. The JCC noted that the E/C had not denied any specific course of treatment recommended by any authorized physician, and had not denied any specific request for care. Based on the fact that the claimant did not provide any competent substantial evidence to show that it was medically necessary to have a PCP in addition to an orthopedic surgeon, the JCC denied the claimant’s request, and dismissed the pending petition for same. 

Lorenzo Gonzalez v. Labor Finders and ESIS WC Claims

JCC Stephenson: West Palm Beach District                             Order Date: 10/15/2020

OJCC Case: # 19-027339                                                           Date of Accident: 8/20/2019

Claimant’s Counsel:     Grethel San Miguel Callejas                    E/C’s Counsel: Jeffrey M. Novell

JCC Order: Click Here  

Briefly: 120 Day Pay & Investigate, Major Contributing Cause, Temporary Partial Disability, Authorization of Medical Care

Summary:    Following an alleged work-related accident, The E/C authorized an urgent care facility to treat the claimant’s back, right leg, head, and chest and was initially diagnosed with low back strain, muscle spasm of back, midline low back pain, and right arm pain, among other things. The claimant was referred to a neurosurgeon, who requested an MRI. After a couple of follow-up visits and an additional MRI, the claimant was recommended for an L3 – L4 laminectomy/microdiscectomy and referred to pain management. The claimant elected to try the injections and pain management instead of the surgery.  At deposition, the neurosurgeon opined that the herniated disc and the need for the pain management specialist was the work accident. However, by the time of the doctor’s deposition, the E/C had denied ongoing treatment reasoning that the MCC of the claimant’s condition was no longer the workplace accident, but authorized a pain management doctor after the deposition.

The E/C obtained a neurosurgical IME who opined that the claimant was not a surgical candidate nor did he need any additional treatment as the only work-related diagnoses were only strains that could be treated with over the counter medications and strengthening exercises. He placed the claimant at MMI for the lower back. Based on their IME opinion, the E/C once again filed a notice of denial for the lumbar spine treatment. Due to the disagreement between the physicians, the judge ordered an EMA to address the MCC of the claimant’s condition and need for further treatment. The EMA opined that while the claimant had congenital stenosis and an overlapping degenerative component, it did not warrant any surgical intervention. He did opine that pain management was reasonable and medically necessary but indicated that only physical therapy would be the extent of any further treatment for the claimant as a result of the industrial accident.

The court also addressed the 120 day pay and investigate provision. There was a prior stipulation in which the E/C agreed to provide treatment to the claimant’s lumbar spine but in the stipulation, the E/C failed to limit the authorization, thus the E/C was now held to the provisions they had stipulated to. Despite the 120 day provision, the court held that the EMA opinion was appropriate and determined that ongoing medical treatment with a neurosurgeon was not medically necessary, but treatment with a pain management doctor was reasonable and medically necessary. Accordingly, the JCC partially granted the claimant’s request for benefits.  

Jose F. Caba v. PeopLease, LLC and Next Level Administrators, LLC

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

OJCC Case: # 20-001208                                                           Date of Accident: 5/15/2019

Claimant’s Counsel:     Leo D. Gomez                                       E/C’s Counsel: Chris Arie Thorne

Sean Butler

JCC Order: Click Here  

Briefly: Arising out of/Course & Scope

Summary:  The E/C denied compensability of this case for multiple reasons, including the fact that the accident occurred outside the course and scope of the claimant’s employment when the claimant suffered from an idiopathic fall. With respect to the course and scope argument, the judge found that the claimant was injured at a place where he reasonably would be while fulfilling his job duties, and the fact that he was headed to the restroom for a personal comfort break of a short duration did not change the fact that he was within the course and scope of his employment. The main focus of the litigation was whether the claimant’s accident arose out of the employment.  The E/C argued that the claimant’s employment did not expose him to conditions that substantially contributed to the risk of injury to which the claimant would normally be exposed during his non employment life. The judge disagreed with that assertion, and outlined several different cases which refuted the E/C’s narrow reading of the case law, and found that there was no idiopathic condition that caused the fall and there was occupational causation demonstrated by the claimant. Accordingly, the accident was deemed compensable and medical and indemnity benefits were granted.