Editor: Felicia Wymer, Partner, Pensacola Office

Author: Travis Coleman, Junior Partner, Tampa Office

Author: Katie Valley, Associate, Jacksonville Office

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Ashley v. W.W. Gay Mechanical Contractor/Commercial Risk

JCC Holley:   Jacksonville District                         Order date:   11/22/2024

OJCC Case:   23-0245143WRH                                          Date of Accident:    9/29/2021

JCC Order: Click Here

Briefly:  Notice, Course & Scope 

Summary: Handled by our very own Michael Crumpler, this claim dealt with a February 2024 PFB seeking evaluation with a pain management specialist, therapy to lumbar spine, attorney’s fees and costs for an alleged September 29, 2021 work accident. The E/C denied the requests for lack of timely notice, Statute of Limitations, no accident in the course and scope of employment, and other defenses. The claimant alleged that she injured her lower back after falling at work on September 29, 2021. She also had a separate and independent claim with a May 24, 2021, date of accident involving her neck and lower back that was ultimately accepted as compensable for the cervical spine, only. According to the Claimant, she injured her low back in both work accidents. In October 2021, the Claimant was asked to write a description of the events leading up to her alleged May 2021 accident. There was no mention of a fall, low back injury, or accident taking place in either May or September 2021. On October 6, 2021, the claimant sought treatment on her own with Dr. Martin at St. Vincent’s, at which time the claimant informed the doctors of having neck pain on and off for several years. There was no mention of a fall, lower back injury, or accident taking place in either May or September 2021 included in the medical report. The E/C denied the May 2021 accident and injuries. The claimant treated on her own with McGowan Spinal Rehab, totaling approximately 14 visits who placed her on work restrictions. A few months later, the claimant treated with Dr. Keller, but no mention of lower back pain was included. Based on the above, the claimant’s testimony, and testimony from multiple people from the employer, the JCC found that the claimant did not have an injury from an accident in September 2021. Based on her own testimony, the claimant was not aware of any back pain until potentially in October 2021. There was also preexisting degeneration in the lower back. For the Statute of Limitations defense, the claimant filed the Petition for Benefits one day prior to the Statute expiring, so this defense was rejected. As the lower back injury was found not compensable, all claims were denied.

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Eaves v. Community Hospital of NE Florida/Charter Oak Fire Insurance Company

JCC Holley:   Jacksonville District                                     Order date:   11/26/2024

OJCC Case:   19-017700WRH                                            Date of Accident:    5/17/2018

JCC Order: Click Here

Briefly:  One Time Change

Summary: The Claimant was involved in a compensable motor vehicle accident on May 17, 2018, resulting in her car being totaled. Two pieces of concrete entered through her windshield resulting in injury to her neck, back, and head. The accident also aggravated a prior thoracic spine injury. The Claimant was authorized to treat with a neurologist and a pain management doctor. The claimant also suffered from psychological trauma, including panic attacks while driving near bridges, nightmares, and waking episodes of screaming. The Claimant had treatment with Dr. Thomas Wickstrom for her psychological issues. She stopped treating with him for about six months while she was pregnant and could not take the prescribed medications. When she attempted to return, she learned that Dr. Wickstrom had retired. The E/C then authorized Dr. Edurado Sanchez as her new psychiatrist. The Claimant treated once with Dr. Sanchez but was dissatisfied leading to her one-time change request in March 2024. The E/C did not timely respond, leading to the Claimant choosing a psychiatrist at the Mayo Clinic. However, the Mayo Clinic requires that an occupational physician oversee treatment, make referrals for a psychiatrist before one can be authorized, and concurrently manage determinations such as MMI, work restrictions, and impairment rating. This, the E/C contended, conflicts with the Florida Administrative Code. The adjuster testified that he would be willing to authorize basically any psychiatrist that would accept the Claimant, and the E/C’s attorney sent a list of 31 doctors, some not in Florida, some who may not accept workers compensation. The Claimant did not bother to contact any of the doctors on the list as she was concerned that some of the out-of-state providers would not be able to prescribe medications. The JCC opined,  based upon the plain meaning of the statute and case law, that the one-time change request through the Mayo Clinic would be prohibited due to the Mayo Clinic protocols. Accordingly, the one-time change request to the Mayo Clinic was denied, and the parties were encouraged to find a psychiatrist to treat the claimant. Attorneys fees and costs were reserved as the benefit had yet to be secured.

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Zamora v. Covanta Palm Beach/Sedgwick

JCC Case:   West Palm Beach District                                Order date:   6/28/2023

OJCC Case:   22-006499                                                      Date of Accident:    1/20/2022

DCA Order: Click Here                                                       DCA Order Date: 12/6/2024

JCC Order: Click Here

Briefly:  Course and Scope, Misrepresentation, Initial Aggressor

Summary: The Claimant was attacked by a machete wielding employee (Mr. Danger) of a subcontractor to the claimant’s employer. The Claimant sustained injuries to his right hand/wrist, shoulder, and upper back. The E/C initially authorized care under the 120-day pay and investigate provision. After investigating, the E/C concluded that the Claimant was the initial aggressor during an early morning argument, which carried over into the afternoon when the machete attack occurred. They also concluded that the attack and injuries did not arise out of the Claimant’s employment. After the Claimant’s deposition, the E/C also included a misrepresentation denial. A couple of weeks prior to the attack, the Claimant met with Mr. Danger regarding selling a gold chain. Mr. Danger agreed to buy the chain for $3,000. Of note, the parties knew each other outside of work as their wives were friends, and the Claimant helped facilitate the other party’s employment. Payment was never made for the chain, instead it was returned on January 20, 2022, in the early morning. Video of this interaction was provided showing Mr. Danger handing the chain to the Claimant and the Claimant cursing and yelling at Mr. Danger in an angry manner. The Claimant shortly went off screen, but quickly returned still yelling and upset, pushing Mr. Danger in his throat. Continuing to berate Mr. Danger, the Claimant continued yelling and putting his hand in the other party’s face, even off screen. The Claimant came back on screen charging towards Mr. Danger and poked Mr. Danger multiple times in his back. A second video inside the building also showed Mr. Danger and another party walking calmly into the shop after all of this, and then the Claimant chasing after him. About four hours after these interactions, Mr. Danger informed his supervisor that he was going home, as he was still upset from the morning’s altercation. Mr. Danger later returned to the shop about three hours after this conversation, now wielding a machete. Security footage shows Mr. Danger walking through the shop with the machete to the office where the Claimant was meeting with supervisors. According to the witnesses, Mr. Danger threw hammerheads at the Claimant as he entered the office before attacking with a machete. Security footage then picked up the Claimant stumbling out of the office trying to get away from Mr. Danger. Other employees were able to disarm Mr. Danger and sit him in a golf cart. The Claimant had a severe laceration after the attack. The Claimant was eventually placed at MMI in March 2022, and prior to the next visit the E/C issued its denial.

During the Final Hearing, the Claimant testified that he was pleasant during the morning encounters, but then admitted to using foul language. He did not recall putting his hands on Mr. Danger. The E/C argued that the attack was personal in nature and unrelated to employment, and thus not arising out of the employment. Here, the Claimant and Mr. Danger were not employed by the same company, although they performed their jobs at the same location. The argument was about a gold chain and not about work, and all subsequent arguments were still about the chain. The Claimant alleges that the hammerheads came from work, but no evidence was provided as to where the hammerheads or machete came from. Accordingly, the JCC did not find that the workplace facilitated the assault or contributed to the altercation. The workplace was merely a fortuitous location of the attack which could have occurred anywhere. As for the misrepresentation defense, the Claimant provided conflicting statements about the morning altercation. He told the adjuster and employer that he did not argue with Mr. Danger, and that the encounter was pleasant. He denied using bad language or putting hands on Mr. Danger. At the Final Hearing, his testimony changed. According to the Claimant, Mr. Danger started the heated argument in the morning based on a mistaken belief that the Claimant “ratted him out” for drinking on the job. The Claimant also denied knowing Mr. Danger outside of work. However, in an interview with the employer following the incident, the Claimant reported that he knew Mr. Danger and was the one who informed him of the job opening. The Claimant made multiple false and/or misleading statements, which, taken alone, might not rise to the level of misrepresentation. However, his new version of the events provided at the Final Hearing shows that he altered the story again to downplay the evidence of his meltdown. Further, the JCC found that the Claimants story of “ratting out” Mr. Danger was created to prove the nexus to workplace stress to make this claim compensable. Accordingly, the Claimant is barred from any and all benefits pursuant to chapter 440.

Alberto Luis Ortega v. Enlightening Venture Inc and Travelers Indemnity Company of America

JCC Almeyda: Miami District                                             Order date: 12/05/2024

OJCC Case:   24-011253                                                      Date of Accident:  01/15/2024

JCC Order: Click Here

Briefly:  Arising Out Of Course/Scope

Summary: On January 15, 2024, the claimant sustained injuries after being shot by a fellow employee. The Claimant was paired with the assailant to work at different locations seeking charitable donations. The Claimant drove, as the co-worker/assailant did not have a car. The co-worker/assailant was not an employee of the Employer, but rather of a partner separate company. After 5 PM, the paired workers were told to leave a Kirkland location in Coral Gables. The paired workers’ supervisor assigned them another spot to go to, but the co-worker/assailant declined, as he did not want to continue working. Rather than leaving, the Claimant met with a girlfriend and went to Ross for about an hour. In the meantime, the assailant had been waiting for the Claimant in the car, waiting to be taken home. The Claimant had told the co-worker of his plans to meet with a friend and offered for him to find his own way home, but the co-worker decided to wait for the Claimant to drive him home, as he had no money or alternate ride home. Upon arrival at the requested location to drop off the assailant, the assailant got out of the car and proceeded to shoot the Claimant four times. The claimant was a training manager for the company. The Claimant was not paid hourly, and his pay would have been the same if they had resumed work after going to Ross. The Claimant considered the time spent at Ross to be a proper break or mealtime, as he had none on that day. The Claimant considered driving the co-worker/assailant to a safe place at the end of the work shift to be part of his responsibility. He signed a contract when hired which required that he transport co-workers. On this basis, the Claimant petitioned for compensability of the accident. The JCC rejected the Claimant’s position that the side shopping trip was part of his break, but did find that the side trip deviation terminated when he returned to take his co-worker to his chosen end destination. However, the JCC found that other than placing the Claimant together with the assailant, the employment had no basis or nexus for this assault. Further, he stated that if anything could be taken from the tidbits of evidence, such as the delay in driving the assailant home, is that the assault was as consequence of personal feelings between the parties and not a work-related dispute. Subsequently, the claim for compensability was denied.

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Isaac H. Martinez v. Caterpillar Logistics Services and Liberty Mutual Insurance

JCC Medina-Shore: Miami District                                    Order date:   12/18/2024

OJCC Case:   24-005981                                                      Date of Accident:    4/15/2019

JCC Order: Click Here

Briefly:  Medical Necessity & MCC

Summary: The claimant tripped over a mat at work and fell forward, landing on his knees, left wrist, and left shoulder. The claimant began treating with authorized board-certified orthopedic surgeon, Dr. Joseph Fernandez. After conservative treatment failed, Dr. Fernandez recommended a total right knee replacement surgery. He stated that the MCC of the need for surgery was the permanent aggravations to both knees following the industrial accident. The E/C did not respond to the recommendation from Dr. Fernandez. The Claimant returned to Dr. Fernandez on three more times complaining of his right knee locking with pain. Dr. Fernandez continued to recommend the total right knee replacement surgery at these additional visits. The Claimant did not see Dr. Fernandez again for over a year. In the interim, the E/C had Claimant undergo an IME with Dr. Robert Linn. Dr. Linn diagnosed Claimant with exacerbation of advanced osteoarthritis of the knees, in addition to other injuries. He stated that the MCC for the need for ongoing treatment, including the recommended surgery, was the preexisting degenerative conditions, as there was no apparent objective evidence of injury directly attributable to the work fall. Dr. Fernandez reviewed the IME and disagreed with Dr. Linn’s opinions. He continued to recommend the knee replacement. The JCC accepted the opinions of Dr. Fernandez over Dr. Linn because Dr. Fernandez had treated the claimant over the course of five years and had the opportunity to observe the progression of his symptoms, especially after every change in job duties. Dr. Linn evaluated the claimant twice, with his initial evaluation two years after the accident. She also stated that the E/C waived their right to assert a medical necessity defense to the total right knee replacement surgery for their failure to respond to the doctor within 10 days after receiving the initial surgical recommendation, as required by Section 440.13 (3)(i), Florida Statues. Further, the E/C also waived their right to deny compensability because they failed to deny the benefits within 120 days of the first provision of treatment as required by Section 440.20(4). Consequently, the JCC ordered the E/C to authorize the total knee replacement. 

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