Editor: Felicia Wymer, Partner, Pensacola Office
Author: Travis Coleman, Junior Partner, Tampa Office
Author: Katie Valley, Associate, Jacksonville Office
Mitchell Incorvaia v. City of St. Petersburg and Commercial Risk Management, Inc.
JCC Young: St. Petersburg District Order date: 01/31/2025
OJCC Case: 21-024913RLY Date of Accident: 06/07/2013
JCC Order: Click Here
Briefly: PTD
Summary: The Claimant was injured in a work-related accident during a physical assessment test while holding a plank for a reported 4.5 minutes. The E/C accepted the accident as compensable for the resulting injury to the Claimant’s L4-5 and L5-S1 and the Claimant underwent an L5-6 laminectomy with fusion on October 16, 2013. The Claimant was placed at MMI with a 9% impairment rating on November 17, 2014, with permanent lifting restrictions of no more than 30-50 pounds. The claimant sought a one-time change, which was authorized, and Dr. Cronen, the new physician, placed the claimant at MMI and deferred to the first authorized treating physician, as to MMI date and impairment rating. The claimant later treated pain management. The pain management provider testified that the claimant was at MMI before she saw him, and that all of his care had been palliative. She opined that his MMI date was November 17, 2014, with a 9% impairment rating. On October 12, 2022, the claimant underwent an SCS implantation, which had to be reimplanted on October 11, 2023, due to complications. The claimant was placed at MMI on January 5, 2024, by his neurosurgeon, who deferred to pain management for overall MMI, impairment rating, and permanent restrictions. The claimant subsequently petitioned for PTD, among other benefits. The pain management provider had noted in a May 15, 2023, medical note that the claimant was disabled and had a no work status. She later clarified in deposition that the claimant was totally disabled from being a firefighter, but that she agreed with the FCE, which outlined sedentary work restrictions. The claimant had informed his vocational expert that he did not think he could perform sedentary work due to cognitive problems caused by his medications. The claimant was also not forthcoming with details regarding his professional history. He also failed to make a good faith effort in applying for jobs, exemplified by submitting applications for roles that he knew required specialty training that he did not possess. Pursuant to Fla. Stat. § 440.15(1), a claimant must present evidence of total disability, and must not be able to physically engage in at least sedentary employment, to establish entitlement to PTD. Once the claimant establishes a prima facie case for benefits, the burden of showing that suitable work is available shifts to the E/C. The JCC found that the claimant was not entitled to PTD because 1) he was capable of working at a sedentary level within 50 miles of his residence, and 2) that the claimant did not perform a good-faith job search. The JCC also found that, based on the testimony of the claimant’s physicians, that there was no permanent work-related physical restrictions that would preclude sedentary work. All benefits were denied.
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Michael S. Crews v. Publix Super Markets Inc and Publix Risk Management
JCC Walker: Pensacola District Order date: 03/03/2025
OJCC Case: 21-007090JW Date of Accident: 12/23/2020
JCC Order: Click Here
Briefly: MCC
Summary: The claimant was a part-time meat cutter for Publix who injured his lower back and neck when he lifted a heavy ice tray. The Claimant treated conservatively with Dr. Koulisis, who assigned MMI in July of 2021, and multiple pain management providers. During the course of treatment, the Claimant declined injections despite testifying he was in “pretty constant pain” during the course of litigation. The PFB at issue was for ongoing orthopedic care, which the Employer/Carrier denied, arguing that the MCC of the ongoing need for treatment was no longer the work accident but “severe whiplash” that occurred in 2017 as a result of a motor vehicle accident. The Claimant testified the symptoms associated with the whiplash resolved prior to working with the employer. Dr. Koulisis, authorized treating provider, placed the claimant at MMI with a 0% impairment rating after indicating that the claimant’s preexisting condition was the MCC of his pain. The E/C’s IME, performed by Dr. Barry Lurate, stated that the Claimant had “pain management issues before the work accident” with a “history of back trouble.” Dr. Lurate also opined the Claimant’s pain may emanate from a “possible, underlying nonorganic source.” A litany of providers were involved, but the JCC found that the records ultimately supported the conclusion that the Claimant no longer required care as it related to the work accident. The JCC agreed with Dr. Lurate and held that the claimant returned to his baseline on July 5, 2021, resulting in a dismissal of the claims with prejudice.
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Jesus Gandi Gallegos Gonzalez v. Gargiulo Inc and Charter Oak Fire Insurance Co.
JCC Newman: Tallahassee District Order date: 03/6/2025
OJCC Case: 24-000631JLN Date of Accident: 03/16/2023
JCC Order: Click Here
Briefly: Pro Se Claimant
Summary: This claim was handled by our very own Dan Goodman! The unrepresented claimant sought TTD or TPD benefits allegedly owed from March 16, 2023, to the present, along with penalties, interest, costs, and attorney’s fees. The E/C asserted that all indemnity benefits due to the Claimant had been paid and that no other benefits were due. On March 5, 2025, a Final Hearing was held on the matter. The claimant did not appear at the hearing, even though it was properly scheduled and noticed. According to Fitzgerald v. Osceola County Sch. Bd., 974 So. 2d 1161, 1164 (Fla. 1st DCA 2008), the Claimant bears the burden to prove their entitlement to workers’ compensation benefits. However, since the claimant did not appear at the hearing, there was no presentation of evidence to establish entitlement to the benefits sought. Therefore, the JCC denied and dismissed the claim.
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Janette De Guzman v. Altranais Care Centers, LLC & Amerisure
JCC Grindal: St. Petersburg District Order date: 3/5/2025
OJCC Case: 24-018346EBG Date of Accident: 7/12/2024
JCC Order: Click Here
Briefly: Indemnity, Voluntary Limitation of Income
Summary: The Claimant was injured when she slipped and fell while carrying her laptop and nursing supplies. Initially treated with TGH Urgent Care, the Claimant then treated with Dr. Brody Henkel. During treatment, the Claimant noted swelling, light sensitivity, dizziness, and inability to move her left shoulder. She was given lifting restrictions, bending restrictions, and restrictions to reduce screen time. At some point, her dizziness and head pain resolved but she still had intermittent shooting pain in her left shoulder and the inability to lift her left arm. A light duty letter was sent to the Claimant on July 18, 2024, which was received by the Claimant on July 24, 2024. The Claimant returned to work on August 3, 2024. Upon her return, the Claimant worked for about an hour prior to reportedly experiencing dizziness, headaches, and left shoulder pain. She was sent home, and the following day told her supervisor she couldn’t function. The Claimant testified that after being sent home she was not instructed to return to work or offered additional work placements. Her employment was terminated on August 27, 2024, and she has not worked since. Finding that the Claimant was aware of light duty offered by the insured, and due to missed shifts from the light duty job offer and termination, the Claimant voluntarily limited her income from July 24, 2024 – August 27, 2024. Following termination, the Claimant was not placed on notice by the insured that light duty remained available, thus she did not knowingly refuse light duty after her termination through the Final Hearing date. TPD was granted from Jul 13, 2024 – July 23, 2024, denied from July 24, 2024 – August 27, 2024, and granted from August 28, 2024 – February 18, 2025, along with penalties and interest for the owed periods.
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Carol D. Mead v. Premier Industries, Inc. & Sentry Casualty Company
JCC Stanton: Orlando District Order date: 3/5/2025
OJCC Case: 89-002697TSS Date of Accident: 8/17/1989
JCC Order: Click Here
Briefly: Major Contributing Cause/120-day
Summary: At issue was an authorization of a neuro-ophthalmologist as recommended by the authorized provider, Dr. Klein. The Employer/Carrier denied the requested benefit, as the alleged vison issues were personal and not related to the accident. The Claimant was injured when she was exposed to chemicals, and initially experienced eye issues including depth perception and issues with 3D images. Around 1997, the Claimant was diagnosed with several eye conditions including achromatopsia, rotary nystagmus, and horizontal nystagmus. She stopped treating with the ophthalmologist, as there was nothing to be done for those conditions, and started treating with her personal optometrists. She is now treating with a toxicologist, Dr. Klein, for the work injury. She informed Dr. Klein that her eye problems have gotten much worse, and the provider referred her to the neuro-ophthalmologist. Section 440.192(8), which was not in effect at the time of the accident but was found to apply retroactively, requires that within 14 days of the receipt of the PFB, an E/C either must pay the requested benefits without prejudice to later to deny the claim within a 120- day period (if it complies with section 440.20(4)), or file a response to the PFB. As the Claimant was first treated for her eye injuries in 1998, and the first denial of the Claimant’s eye injuries was not until the adjuster’s deposition in December 2024, the denial did not occur within 120-days of the first medical treatment. Finding that the Claimant’s rotary and horizontal nystagmus were compensable, the JCC awarded the evaluation with the neuro-ophthalmologist.
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