Briefly Speaking – Case Law Updates (February 2022)

Michael Pendrotti v. Circle K and Constitution State Services
JCC Young: St. Pete District
Order Date: 1/18/2022
OJCC Case No: 21-014083RLY
Date of Accident: 6/8/021
Claimant’s Counsel: Joe Rooth
E/C Counsel: Ya’Sheaka C. Williams
JCC Order: Click Here

Briefly: Specialist Referral

Summary: The claimant was involved in a compensable workplace accident resulting in injury to her wrist, back, and head. The only true issue in this case was an alleged referral to a neurosurgeon that was mentioned in ER discharge notes from the initial hospital visit following the accident, which included a note to follow up with a specific provider but failed to indicate the provider’s specialty or treatment to be obtained. The Claimant argued that because the Carrier initially responded to the PFB that the claimant was authorized to see a Neurosurgeon and an appointment date/time would be provided under separate cover, they were barred from later denying the request. The E/C argued that the Carrier acted properly and requested an opinion from the authorized orthopedic surgeon as to whether a neurosurgeon was medically necessary, to wit the Orthopedist responded that it was not. The E/C subsequently timely denied the request for a neurosurgeon as the denial was within ten days of the request. Ultimately, the JCC agreed with the E/C on the basis that the claimant did not rely on the initial approval of the neurosurgeon by the E/C and failed to meet his burden of establishing that treatment with a neurosurgeon was reasonable and medical necessary. Further, the JCC opined that an adjuster is not bound by a response to a Petition, unlike a pretrial stipulation, where medical documentation later establishes that the response is not supported by major contributing cause or reasonable medical necessity. Accordingly, the JCC denied the petition for a neurosurgeon.

Rita Noa v. City of Aventura and Florida League of Cities
JCC Medina-Shore: Miami District
Order Date: 1/26/2022
OJCC Case No: 20-006509SMS
Date of Accident: 2/27/2020
DCA No: 21-0549
Judges: Lewis, Bilbrey, B.L. Thomas
Appellant’s Counsel: Amie E. DeGuzman
Appellee’s Counsel: David Schweiger
JCC Order: Click Here
1st DCA Order: Click Here

Briefly: Average Weekly Wage & Bonuses

Summary: Claimant’s counsel filed a PFB requesting an AWW increase based on a merit bonus which Claimant alleged was partially earned during the 13 weeks prior to the accident but was not paid out until after the accident. The settled case law on bonuses is that, although the bonus may be paid out after the 13 weeks prior to the accident, if it is deemed to have been earned during the 13 weeks, then it can and should be included in the AWW. At the JCC level, the JCC agreed with the E/C’s argument that because the claimant was not eligible to receive the bonus until she reached her anniversary with the company which occurred after the accident, the bonus is not includable in the AWW. The first DCA reversed and remanded the case after taking a closer look at the merit bonus’s parameters and requirements. The First DCA reasoned that because the merit bonus was based on the Claimant’s performance over the course of the preceding 52 weeks of employment which encompassed the 13 weeks prior to the accident as well, the bonus was partially earned during those weeks and was includable in the AWW.

Mindy Blanco v. City of Miami Beach
JCC Jacobs: Miami District
Order date: 1/12/2022
OJCC Case: 21-015908JIJ
Date of Accident: 1/1/2021
Claimant’s Counsel: Lindsey Koppelman
E/C’s Counsel: T. Peter Nguyen
JCC Order: Click Here

Briefly: Major Contributing Cause and 120 Waiver

Summary: The Claimant was involved in a motor vehicle accident in the course and scope of employment and sustained injuries to her neck and low back. Compensability was accepted and the Claimant began treating with an orthopedic spine specialist. Diagnostic studies revealed degenerative changes throughout the cervical and lumbar spine and the Claimant admitted to having at least two prior motor vehicle accidents. The orthopedic surgeon acknowledged that the Claimant has a preexisting condition, but the work accident aggravated that condition. The authorized provider ultimately recommended a basivertebral nerve (BVN) root ablation of L5 and S1, or a fusion of L5-S1. The E/C denied authorization of the BVN ablation. The E/C asserted that it accepted compensability of a temporary exacerbation of a preexisting personal lumbar condition and the MCC of the Claimant’s lumbar disc herniations are from automobile accidents that occurred prior to the industrial accident. The E/C further contended that the requested procedure is not medically necessary or causally related to the work accident, among other things. The Claimant rebutted with the contention that the E/C failed to deny compensability within 120 days of the first provision of benefits, thus waiving the right to contest MCC, and it failed to establish a break in the chain of causation. The E/C IME opined that the lumbar disc herniations existed before the compensable accident and that the Claimant’s preexisting condition is the MCC of the need for the BVN root ablation. The JCC, upon reviewing the MRIs, noted that comparison of the Claimant’s lumbar MRI scans from 2017 and 2021 failed to depict a significant difference, new findings, or an aggravation. The JCC accepted the opinions of the E/C IME over that of the authorized treating doctor and stated that the E/C’s IME’s opinions are more logical, factually supported, and persuasive than those of the authorized treating doctor. The Claimant raised waiver of compensability in the pretrial stipulation, which was rejected by the JCC as the Claimant failed to establish a need to timely deny compensability because the E/C accepted compensability of the temporary exacerbation and Claimant failed to establish evidence that the E/C had an obligation to investigate and deny an unrelated injury or condition. In accepting the opinions of the E/C IME over that of the authorized treating provider, the request for authorization of the BVN root ablation was denied.

Craig Markle v. Wood Bee Cabinetry
JCC Young: St. Petersburg District
Order date: 12/8/2021
OJCC Case: 21-011656RLY
Date of Accident: 11/2/2018
Claimant’s Counsel: Jeffrey Kerley
E/C’s Counsel: Sabrina Persaud
JCC Order: Click Here

Briefly: AWW and Fraud/Misrepresentation

Summary: The Claimant, a sole proprietor and owner of a cabinetry business, suffered an amputation of approximately one inch of his right middle finger while using a table saw. Based on his work status, he was paid temporary indemnity benefits from the date of accident until January 10, 2021. Indemnity benefits were suspended for failure to return DWC-19s. When the Claimant contacted the adjuster about his suspension of benefits, he disclosed that he had been working since the accident, but all of his money is put back into the business. The DWC-19s completed by the Claimant and returned to the carrier reflected no earnings. This led to an investigation into the Claimant’s earnings, and it was discovered that the wage statement included several items which appeared to be nontaxable income. It was also discovered that the Claimant had substantial sums of money via checks being deposited into his personal checking account after the accident. The E/C raised the affirmative defense of fraud/misrepresentation and asserted that the Claimant failed to disclose income on the DWC-19s and did so for the purpose of obtaining workers’ compensation benefits. The JCC carefully observed the Claimant during Final Hearing and noted several inconsistencies between his testimony at trial, his deposition testimony, and conversations that he had with the adjuster. He made statements at trial that made no rational sense and even contradicted himself when describing his physical limitations. From review of post-accident check deposits, he was paid extremely well for consulting work, but he did not consider that to be income and did not report it on DWC-19s because it had nothing to do with his cabinetry business. The JCC found that the Claimant’s testimony that he was working but earning no income and was putting all of the income from his work into the business was misleading at best and fraudulent at worst. Additionally, the Claimant intentionally included items on the wage statement that were not earnings or income, but loans from the company, and this was done with the intent to obtain workers’ compensation benefits at a higher rate than is allowed by the Statute. Considering the finding of fraud/misrepresentation, all workers’ compensation benefits were denied.