Editor: Felicia Wymer, Partner, Pensacola Office
Author: Travis Coleman, Junior Partner, Tampa Office
Author: Katie Valley, Associate, Jacksonville Office
Alma Tongen, surviving spouse of Alexander Tongen v. Cemex Construction Materials of Florida, LLC and Gallagher Bassett Services, Inc.
JCC Massey: Tampa District Order date: 04/14/2025
OJCC Case: 23-023848MAM Date of Accident: 09/07/2023
JCC Order: Click Here
Briefly: Death Benefits, Arising out of/Course & Scope, Unexplained/Idiopathic Fall
Summary: On September 7, 2023, the claimant died after collapsing and hitting his head on the pavement at work while taking a smoke break in the parking lot. The Petition sought payment of spousal death benefits and funeral expenses under section 440.16, Florida Statutes (2023). The E/C denied the claim and asserted that the claimant’s death did not arise out of or in the course and scope of his employment. Dr. Conley, the attending physician at the hospital, testified in deposition that the diagnosis was cardiopulmonary arrest, along with acute respiratory failure. The medical examiner who performed the autopsy testified that the claimant’s cause of death was a basilar skull fracture caused by the claimant’s head striking the pavement. However, she also acknowledged that the claimant suffered from heart disease, and that it was significant enough to be a cause of death or a contributing cause of death. Further, she stated that she would agree that it was likely that a cardiac event caused the collapse, but she could not state whether the claimant would have survived the event had he not fractured his skull. Dr. Leonard Cosmo, the claimant’s IME physician, concluded that the traumatic brain injury resulting from the fall was the cause of death, but the cardiac arrest is what caused the claimant to fall. The E/C’s IME physician, Dr. David Perloff, testified in his deposition that it was difficult to determine whether the claimant died of cardiac arrest leading to death with subsequent head trauma; cardiac arrest leading to head trauma as the cause of death; or primary subarachnoid hemorrhage leading to syncope with head trauma and subsequent cardiac arrest. However, he stated that regardless of whether the cardiac arrest or the head injury was the cause of death, the cause of the fall would have been an internal failure (either cardiac arrest or subarachnoid hemorrhage).The E/C argued that the claimant’s fall did not occur in the course and scope of his employment because he was on a smoke break which was unauthorized and in violation of the employer’s no-smoking policy. The JCC rejected this defense, stating that the smoke break during which the incident occurred falls under the personal comfort doctrine, and therefore was not a deviation. However, based on the opinion of Dr. Cosmo, the JCC found the fall to be idiopathic, and that his employment did not create an increased hazard of the fall. Therefore, the claimant’s death did not arise out of his employment. Ultimately, the claims for spousal death benefits, funeral expense reimbursement, and any associated penalties or fees were denied.
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Diana Carolina Figueroa Lozano v. Temple Stone LLC, and Siriuspoint America Insurance Company
JCC Weiss: Ft. Myers District Order date: 04/17/2025
OJCC Case: 24-022757JAW Date of Accident: 09/05/2024
JCC Order: Click Here
Briefly: MCC, Witness Credibility
Summary: This victorious outcome was handled by our very own Kris Vander Pyl! The claimant contended she injured her right shoulder when stopping a granite slab that fell toward her on 9/5/2024. She sought TTD/TPD benefits from the date of accident and continuing; authorization of a PCP; authorization for transportation and interpreter for all medical needs; payment of medical bills for 9/5/24 and 9/23/24 dates of service, and PICA. The E/C denied the claim, stating that the injuries stemmed from her pre-existing condition. Following the accident, the claimant was taken to the emergency room, where two different descriptions of the accident were taken. The triage nurse noted that she had whole left side body pain and worse left arm pain, and the physician noted that she had left side neck pain that radiated down her left upper extremity, with associated symptoms of headache and cramping in her left lower extremity. All imaging taken at the emergency room was unremarkable. One day prior to the accident, the claimant treated with her own chiropractor, where she complained of a history of neck pain, middle back pain, lumbar pain, shoulder pain, hip pain, sciatic pain, and leg pain. On 3/5/25, the claimant underwent an IME by the E/C’s physician, Dr. Beretta. On examination, Dr. Beretta noted no evidence of atrophy or obvious dislocation in either her right or left shoulder. She had a full range of motion of both knees. There was no swelling or instability noted. Dr. Beretta opined that the claimant’s description of the accident was inconsistent with her mechanism of injury, and that based on her history and medical records, it was highly unlikely that her work accident was the cause of her symptomology. She was placed at MMI 0%. On 3/25/25, the claimant obtained an IME with Dr. Thompson. Dr. Thompson noted that while the existing imaging is negative, that did not mean there was nothing wrong and suggested additional imaging. The JCC noted that the claimant failed to disclose to Dr. Thompson her treatment with her chiropractor one day prior to the accident. Additionally, she did not provide complete, truthful answers during her deposition regarding her prior complaints of pain and chiropractic treatment. She also failed to disclose $3,000.00 of monthly income that she was making doing on-line marketing on her DWC-19s. The claims sought in both petitions were denied and dismissed, as the JCC found that the claimant failed to meet her burden of proof to establish entitlement to medical or indemnity benefits.
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Ray J. Lane v. City of St. Pete/Commercial Risk Management, Inc.
JCC Young: St. Petersburg District Order date: 5/7/2025
OJCC Case: 22-017014RLY Date of Accident: 2/21/2022
JCC Order: Click Here
Briefly: Deviation from Employment & Emergency Situations
Summary: The Claimant worked as a garbage truck driver and was involved in an accident on February 21, 2022, when the truck had mechanical issues causing a loss of control. The truck flipped over while the Claimant was maneuvering a curve in the highway. During the Claimant’s deposition, he testified that as he was starting his route, he realized he left his iron on at home with his kids in the house. He decided to go check on his children instead of starting the route. While en route to his house, the accident occurred. Of note, there was no mention of the iron issue at the time of the accident. The supervisor seemed to believe the Claimant was going home to get his work boots, which the Claimant refuted. The Claimant testified that there was some flexibility with leaving a route to perform an errand if you notify the supervisor, which coworkers denied, however the Claimant did not notify the supervisor at all. Initially, the Employer/Carrier accepted compensability of the claim, and maintained compensability until they issued the denial in July 2024. Due to some miscommunication, the Carrier was not made aware of the Claimant not being on his route until July 2024. However, the JCC determined that the Carrier could not have known about the deviation until July 2024, when the Employer finally reported it, and thus did not waive their right to deny as it was after the 120-day period. The JCC also found that no emergency existed that would cause the Claimant to deviate from his route. No mention of the iron being left on at his house was made until his deposition almost 3 years later. As the Claimant deviated from his route without approval, the JCC denied the requested benefits.
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Dwayne White v. Howes Trucking
JCC Humphries: Jacksonville District Order date: 5/19/2025
OJCC Case: 24-016012BKC Date of Accident: 12/21/2023
JCC Order: Click Here
Briefly: Independent Contractor vs. Employee, MCC
Summary: The Claimant was working as a truck driver when he was involved in an accident causing injuries to numerous body parts. The question for Final Hearing was whether the Claimant was an employee or an independent contractor. Based on the Claimants testimony, he did not maintain his own business, did not hold a federal identification number, compensation was paid to him and not a business entity, and Claimant did not own a bank account in the name of the business entity. Accordingly, the JCC turned to §440.02(15)(d)(1)(b) to determine whether there is a presumption that the Claimant was an independent contractor. Ultimately, the JCC ruled that the Claimant was an employee of Howes Trucking. Howes was responsible for all expenses associated with the services performed, owned/maintained/fueled/and had control over the trucks. Claimant did not realize a profit or suffer a loss with the work performed. Turning then to the medical benefits requested, the Claimant brought forward ER records from the date of accident. The question for Final Hearing was whether this was emergency services or care. In analyzing the issue, the JCC looked at three factors: (1) whether the service provider is a licensed physician (or other appropriate personnel acting under the supervision of a physician); (2) whether an evaluation, screening, or evaluation was conducted by that physician (or other authorized personnel); and (3) whether such care was undertaken by the physician with the intent of determining ”if an emergency medical condition exists.” The JCC found that the first two questions were affirmative, but there was nothing that supported a finding the care undertaken was done to determine that an emergency medical condition exists. Thus, the Claimant failed to establish the MCC that the hospitalization was related to his accident via the emergency care provision. Ultimately, the Claimant was involved in a compensable workplace accident, but failed to establish his AWW, and did not present any admissible evidence regarding indemnity benefits. Compensability accepted, all other benefits including specialists, and payment of the ER bill were denied.
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Johanna Gomez v. Aventura Finest Carwash and Service/NorGUARD Insurance Co.
JCC Clark: Ft. Myers District Order date: 5/30/2025
OJCC Case: 24-010006FJC Date of Accident: 2/6/2024
JCC Order: Click Here
Briefly: Major Contributing Cause/120-day
Summary: This successful outcome was handled by our very own Mike Kiner! The only issue at Final Hearing was the request for authorization of an appointment to treat the Claimant’s back, to which the E/C defended that no further care was required or related to the work accident. The parties stipulated that the Claimant was at MMI for the lumbar spine injury as of 10/28/24 with a 0% PIR and full duty release per the authorized physician after a slip and fall on 2/6/24, which also involved injury to the right arm, for which the claimant was continuing treatment. The claimant was seen at a post-MMI visit with her authorized physician on 11/25/24, at which there was no change to her complaints or treatment plan, and 17 days later filed the at issue PFB. While the JCC rejected E/C’s argument that MMI with a 0% PIR and full duty release means there is no longer any need for treatment of any kind, the JCC did ultimately find that the Claimant failed to meet her burden of proof to show she is entitled to the benefits she seeks based solely on the PRN instruction of the doctor. The PFB was denied and dismissed with prejudice.
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