Briefly Speaking – Case Law Updates (7/17/19)

Addison Drywall/Bridgefield Employers Ins. v. Salvador Torres and CRB Contractors/Normandy Ins.

JCC Owens: St. Lucie District                                                  Order Date: 5/13/2019

DCA#:1D18-2901                                                                      Date of Accident: 9/1/2017

E/C #1’s Counsel: William Rogner                                      Claimant’s Cousel: David Wiitala &

E/C #2’s Counsel: George Kagan                                                                                   Wendy Loquasto                                       

JCC Order: Click Here  

1st DCA Order: Click Here                               

Briefly: Temporary Total Disability   

Summary:  Claimant was injured in a compensable workplace accident when he fell from a height of 17 feet onto the cement floor injuring his back, head, ribs, spine, and shoulders.  In the underlying JCC trial, the claimant sought several benefits in his PFB, including  TTD from the date of accident ongoing with penalties and interest.  Based on the testimony including the claimant’s IME, the JCC ordered the E/C to pay TTD benefits to the claimant from the date of accident through the date of the hearing.  The JCC also granted several other benefits and denied other benefits as well.

The E/C appealed portions of the JCC’s order granting benefits and the claimant cross-appealed for the denied medical bills as well as the JCC’s failure to award TTD benefits beyond the date of the hearing. The first DCA affirmed the entirety of the JCC’s order, but wrote an opinion to specifically address the claimant’s argument regarding continuing TTD benefits.  The claimant argued that the JCC erroneously only awarded benefits through the date of the hearing indicating that there was no record evidence to support the fact that the benefits should have terminated. More specifically, the claimant wanted the first DCA to modify the JCC’s order and include a phrase indicating that TTD benefits should be awarded for so long as benefits were proper. The DCA declined to modify the order and reasoned that the language was unnecessary as the claimant still had the ability to file a PFB seeking TTD benefits following the hearing date if he believed they were due.

 Telfer, Faherty & Anderson v. Kelly Caplick, Southeastern Grocers/Sedgwick CMS

JCC Dietz: Melbourne District                                      Order Date: 5/16/2019

DCA#: 1D18-2901                                                             Date of Accident: 12/15/2015

Appellant’s Counsel:    Robert Telfer                           Appellee’s Counsel: Wendy Loquasto &

                                                                                                                                                Brigitta Hawkins

JCC Order: Click Here  

1st DCA Order: Click Here

Briefly: Attorney Fee Lien

Summary:  The claimant filed a workers compensation claim against the E/C alleging that he was involved in a workplace accident on 12/15/15. The claimant hired a partner at law firm #1 to handle her claim from inception to resolution. During the course of representation, the attorney chose to leave her current law firm and joined law firm #2. Although claimant’s counsel moved to a new firm, she continued to represent the claimant. As a part of the settlement, the claimant agreed to pay an attorney fee based on the Miles case, and a dispute arose between the law firms as to what portion of the attorney fee should be allocated to each firm.  Law firm #1 argued that they were entitled to 91% of the attorneys’ fees based on claimant counsel’s 9% equity interest in the firm at the time she left based on an “unfinished business doctrine” legal theory.  Despite the arguments, the JCC determined that quantum meruit was the proper method to calculate the fee and awarded 10% of the fee to Law Firm #1, and 90% of the fee to Law Firm #2.

On appeal, law firm #1 argued that the JCC erred by failing to consider the partnership agreement between law firm #1 and claimant’s counsel and that there was no substantive evidence to allocate the fee the way the court did. The first DCA affirmed the JCC’s order reasoning that quantum meruit was indeed the correct method to utilize in these circumstances and held that the JCC correctly allocated the fee based on the record evidence of the efforts expended by claimant’s counsel and the benefits claimants received during the time claimants’ counsel was with law firm #2.

Librada Gonzalez Izaguirre v. Beach Walk Resort/Travelers Insurance

JCC Walker: Panama City District                          Order Date: 5/16/2019

DCA#:1D18-1990                                                         Date of Accident: 4/30/2016

Appellant’s Counsel:    Kim Hill                              Appellee’s Counsel: Steven Preston

JCC Order: Click Here  

1st DCA Order: Click Here

Briefly: IME, Evidence Admissibility  

Summary:  The claimant in this case alleged a workplace accident on April 30, 2016, asserting that she was injured after moving equipment and felt pain on the right side of her body. Claimant’s accident was deemed compensable for injuries to her wrists, right shoulder, and right knee.  Among other things, claimant requested indemnity benefits from date of accident ongoing. After a final hearing, the JCC denied the requested benefits. In the Order, the JCC struck testimony and reports from the claimant’s IME physician finding that the claimant did not timely identify the IME within 15 days of the IME, pursuant to the requirements outlined in Fla. Stat. §440.13 (5). 

On appeal, the claimant argued that the JCC erred in denying the requested benefits, and more specifically erred when the court struck the IME report and testimony, arguing that the exclusionary language in the statute is merely directory and not mandatory.  The first DCA disagreed and affirmed the JCC’s order to exclude claimant’s IME reasoning that the word “shall” in the statute denotes a mandatory decree and the JCC was required to strike the IME report and testimony, thus the JCC did not err.

Rebecca Ortiz v. Chapters Health System and Travelers Insurance

JCC Young: Tampa District                                          Order Date: 5/15/2019

OJCC Case: # 15-006523                                                    Date of Accident: 2/5/2014

Claimant’s Counsel:  Kelly Barcia Nunez;                    E/C’s Counsel:  Denise P. Murray

JCC Order: Click Here  

Briefly: Fraud/Misrepresentation   

Summary:  The claimant had a compensable lumbar spine injury stemming from a work related accident while working as a CNA and attempting to maneuver a patient. The claimant was receiving medical treatment since inception of the claim, and also underwent a hemilaminectomy surgery. During the course of treatment, the claimant relocated to another state to care for her father, and then returned to Florida, resumed treatment, and was later recommended for a lumbar fusion.  A couple months after the surgery recommendation, the E/C denied the entire claim based on video surveillance received.  Based on the surveillance, the E/C argued the claimant made false or misleading oral statements in her deposition, to her doctors, and to the vocational expert for the purpose of obtaining worker’s compensation benefits.

More specifically, the claimant told her physicians and testified in deposition that she has trouble completing even the simplest tasks of daily living including caring for family, helping with groceries, or lifting and playing with her grandchildren. Despite her statements, claimant was seen on surveillance video at Adventure Island Water Park where she was observed climbing up and down staircases for the water slides without any outward sign of pain or discomfort. The claimant was also observed playing in the swimming pool with her grandchildren and lifting and carrying her grandchildren at the water park.  Claimant’s authorized treating orthopedist and pain management physicians both reviewed the video and opined that the claimant’s activities on the surveillance video were inconsistent with the presentation and oral complaints she made at her office visits. Based on the claimant’s misrepresentations, the JCC found that both prongs of the misrepresentation defense were proven by the E/C, and denied continuing Worker’s Compensation benefits in their entirety.

Michael Delrossi v. Palm Beach County Fire Rescue and Palm Beach County Risk Management

JCC Johnson: West Palm District                                  Order Date: 5/14/2019

OJCC Case: # 18-012547                                                  Date of Accident: 12/13/2013

Claimant’s Counsel:     Alan Aronson                           E/C’s Counsel:  Stephanie Gary Kaufer

JCC Order: Click Here  

Briefly: Authorization of Medical Care, MCC   

Summary:   The claimant was injured in a work-related accident on 12/13/13 while working as a paramedic firefighter. While on the job, the claimant began feeling unwell and was diagnosed with high blood pressure. Following that date, the claimant began seeing a cardiologist that was authorized by the E/C. The claimant was treated with a regimen of medications and was prescribed multiple medications in order to find the correct combination to control his high blood pressure. Claimant was taking a combination of two medications, and the claimant began experiencing erectile dysfunction. Claimant testified in deposition that he was not experiencing any erectile dysfunction prior to taking the medications prescribed by the authorized physician, and testified that his sexual relationship with his wife was previously above average. At the time of final hearing, the only pending petition for benefits requested authorization of Cialis due to the claimant’s erectile dysfunction.

On cross-examination at the hearing, the claimant admitted to several other medical conditions including hypogonadism, low testosterone which required testosterone replacement therapy, decreased libido, obesity, alcohol abuse, depression, PTSD, attention deficit disorder, high cholesterol, hemorrhoids, and diverticulosis. The E/C denied continuing authorization of Cialis claiming that the MCC of the need for Cialis was not the workplace accident as the workplace accident includes hypertension and Cialis does not treat hypertension. The JCC concluded that the claimant had the burden of proof to establish that the compensable injury is the MCC of the need for the treatment, and after weighing all of the evidence and the testimony by all the physicians, the JCC ruled that the claimant did not meet his burden and denied authorization of Cialis.