Briefly Speaking – Case Law Updates (8/31/20)

Mary Thompson v. Escambia County School Board

First DCA Judges: Lewis, Roberts, and Makar         Order date:  8/17/2020

JCC Winn:   Pensacola District                                     Order date:   10/11/2019  

OJCC Case:   18-008411NSW                                           Date of Accident:    12/7/2017

Appellant’s Counsel:   Michael J. Winer                     Appellee’s Counsel:   Joseph L. Hammons

Appellate Order:  Click Here

Briefly:  IME/authorization of medical benefits 

Summary:    The Claimant appealed an order of the JCC that denied her claim for surgery as premature. The Claimant fell at work and was diagnosed with bruising, swelling, chondromalacia, and a meniscal tear of the knee. The authorized treating provider determined that the Claimant was not a surgical candidate and attributed the chondromalacia and meniscal tear to pre-existing conditions. The Claimant obtained an IME, the provider for which opined that she was a surgical candidate and attributed the meniscal tear and aggravation of chondromalacia to the work accident. The JCC ruled that the claim for surgery was premature because no authorized treating provider had recommended it. On appeal, the DCA found that the E/C had waived objections of ripeness and specificity by not asserting them, and noted that an IME opinion is admissible and can support claims for specific medical benefits. The JCC’s decision as to the surgery was reversed.

Gary Herman v. Healthsouth Sunrise Rehabilitation Hospital

JCC Forte:   Ft. Lauderdale District                              Order date:   8/13/2020   

OJCC Case:   19-006323IF                                               Date of Accident:   12/13/2016

Claimant’s Counsel:   Mitchell S. Shea                        E/C’s Counsel:   Gerald McKim

JCC Order:   Click Here

Briefly:  Fraud/Misrepresentation  

Summary:   The Claimant sustained a compensable eye injury while employed with the insured that resulted in his retina detaching, requiring emergency surgery. The Claimant was deemed legally blind in the affected eye and the treating provider recommended home attendant care at the request of the Claimant. The Claimant testified during his deposition regarding his impairments based on his diminished vision, including termination from a subsequent employer due to his inability to perform duties and inability to perform activities of daily living without his wife’s supervision. A representative of Claimant’s subsequent employer noted that the injured worker was laid off due to reduction in workforce, not diminished vision. Surveillance obtained by the Employer/Carrier contradicted the injured worker’s testimony and statements to medical providers regarding his impairment and ability to perform daily activities, showing him going about his daily activities with no supervision and no apparent disability. The JCC found that the Claimant fraudulently made misleading statements about his disability and visual acuity in furtherance of claims for indemnity benefits and home attendant care and barred all further benefits.

Elvis Morales v. Brunswick Corporation

JCC Forte:   Ft. Lauderdale District                              Order date:   8/14/2020   

OJCC Case:   18-024691IF                                                Date of Accident:   6/8/2018

Claimant’s Counsel:   Stephen B. Wilson                    E/C’s Counsel:   Michael F. Wilkes

JCC Order:   Click Here

Briefly:  No accident/injury; witness credibility  

Summary:    The Claimant alleged that he injured his back while in the course and scope of his employment, but sought treatment on his own outside of the workers’ compensation system, including surgery, and during that time never reported the injury as work-related. The Claimant spoke to a claims adjuster a few days after the alleged work accident and testified that his accident was explained in detail, but that he choose not to proceed under workers’ compensation and refused medical care, stating that he did not want his employer to be mad at him. The Claimant sought treatment under his wife’s health insurance and noted that he could no longer afford the co-pays and deductibles for treatment. The Claimant never reported to any medical providers that his back pain was work-related and failed to provide any evidence to lend credibility to his fears of experiencing retaliation from his employer for filing a claim. The JCC did not find the Claimant credible and determined that the Claimant had not established his burden of proof that he had sustained a compensable accident.

Trevor Ditzler v. Achieve Miami, Inc.

JCC Havers:   Miami District                                          Order date:   8/14/2020

OJCC Case:   20-002831WJH                                         Date of Accident:   1/20/2020

Claimant’s Counsel:   Mitchell S. Shea                        E/C’s Counsel:   Patricia E. Perez

JCC Order:   Click Here

Briefly:  Recreational Activities/Compensability

Summary:   The Claimant was injured while volunteering with his employer at a school beautification project on MLK day and sought compensability of his resulting injuries. The Employer/Carrier denied the claim on the basis that the Claimant was involved in recreational/social activities at the time of his injury, and that the volunteer project was not required by the employer. The Claimant testified that MLK day was a normal work day, that he showed up to the project for his normally scheduled work day in employer-specified clothing, and would have been fearful for his job had he not attended. The JCC found that the Claimant performed grounds work in exchange for his regular pay on MLK day, that he was directed to perform the work that was not recreational or social in nature, and that the work he performed at the MLK volunteer project was part of his employment. Accordingly, the accident was found compensable.

Rose G. St. Jean v. Claridge House aka Regents Park at Aventura

JCC Medina-Shore:   Miami District                            Order date:   8/20/2020

OJCC Case:   17-010081SMS                                            Date of Accident:   6/7/2016

Claimant’s Counsel:   Frank Cerino                             E/C’s Counsel:   Sal Richardson

JCC Order:   Click Here

Briefly:  Misrepresentation & MCC

Summary:   The Claimant suffered a work-related injury to the neck and sought treatment for same. The E/C alleged misrepresentation/fraud on the basis of PCP records showing prior treatment for the neck which the injured worker failed to report to her authorized providers. The JCC reviewed the records and determined that lack of recollection of a single PCP visit for neck pain 4 years prior to the date of accident was an excusable memory lapse. The E/C also defended denial on the basis of MCC, arguing that the provider had opined that no further care was needed. The JCC found this opinion to be based on the Claimant’s failure to show up for a scheduled injection and the provider’s desire to no longer provide treatment, but that the injection being scheduled was proof that the injured worker was not at MMI and needed further care. The Employer/Carrier was ordered to authorize an alternate pain management provider, accordingly.