Briefly Speaking – FL Case Law Summaries (6/22/17)

By:                    Ryan M. Knight – Miami

Contributor:   Tara Said – Pensacola

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Teresa Russell v. Residence Inn

JCC Holley: Jacksonville District                           Order Date: May 26, 2017

OJCC Case: 16-009566                                              Date of Accident: 02/24/2015

Claimant’s Counsel: Michael Rudolph                E/C’s Counsel:  David Drill

JCC Order: Click Here  

Briefly: Major Contributing Cause & Medical Benefits Claimant’s left knee injury was accepted as compensable but her subsequent right knee injury was denied. Claimant alleged her right knee complaints were due to overcompensating because of her left knee injury. Claimant had a prior 2014 right knee injury. The JCC accepted the testimony of the authorized treating physician and found there was no evidence supporting Claimant’s contention that the right knee injury was compensable.

Summary: Claimant sustained a compensable left knee injury when she slipped and fell at work. Approximately two years after the DOA, Claimant requested treatment for right knee pain. The Employer/Carrier contended that the MCC of the need for right knee treatment was the Claimant’s prior, 2014 work related right knee injury. The Claimant’s authorized treating physician stated that it was possible that her pain was due to overcompensation. On cross examination, the physician testified that, “he could not state within a reasonable degree of medical certainty that the left knee injury was the major contributing cause, greater than 50 percent, of the need for right knee treatment or right knee symptoms.” Because the Claimant failed to meet her burden that the workplace accident was the MCC of the need for right knee treatment, the request for authorization of right knee treatment was denied.

Ruth Hooten v. University of Florida

JCC Humphries: Jacksonville District                 Order Date: June 2, 2017

OJCC Case: 14-016673                                              Date of Accident: 07/25/2012

Claimant’s Counsel: Michael Rudolph                E/C’s Counsel:  Michael Crumpler

JCC Order: Click Here  

Briefly: Medical Benefits Claimant sought authorization of an evaluation with Dr. Kirkpatrick for ketamine IV therapy. The E/C scheduled the evaluation for the therapy with Dr. Hoffman. The JCC determined the Claimant acquiesced to the Employer/Carrier’s choice of physician and denied the authorization.

Summary: The Employer/Carrier argued that Claimant acquiesced to Dr. Hoffman, the physician the Employer/Carrier authorized to determine the medical necessity of the Ketamine therapy. The JCC found it decisive that the PFB only requested an evaluation by Dr. Kirkpatrick, rather than a referral and treatment if necessary for Ketamine therapy directly. The Claimant attended at least one appointment with Dr. Hoffman who determined the Ketamine therapy was not medically necessary. The JCC concluded the Claimant has no entitlement to select the specific physician to perform the evaluation. Authorization was therefore denied.

Joseph Shmukler v. GCM Construction

JCC Lorenzen: Tampa District                           Order Date: May 30, 2017

OJCC Case: 16-021170                                          Date of Accident: 09/24/2015

Claimant’s Counsel: Christopher Young         E/C’s Counsel:  Katherine Letzter

JCC Order: Click Here  

Briefly: Employer/Employee Relationship Claimant answered a want ad on Craigslist by a company called Tampa Aquaponics, a fish farming business for part-time work and was hired by Garrick Revels. Mr. Revels was also the President of a different company, G.C.M. Construction (GCM), the named employer in this litigation. Tampa Aquaponics had no workers’ compensation coverage and claimant filed a petition for benefits against GCM. The JCC concluded that no employer/employee relationship existed between the Claimant and GCM despite the fact they were owned by the same individual.

Summary: GCM was a masonry contractor while Tampa Aquaponics was involved in fish farming. While the two companies were run by Mr. Revels, they were not within the same industry and the JCC found a clear distinction between them. The court also made the determination that Claimant would not be considered a borrowed servant as there was no indication that the Claimant ever performed any work for GCM. As such, no employer/employee could be deemed to exist and the PFB was dismissed.

Thomas Davis v. Hall HC Farms

JCC Walker: Panama City District                      Order Date: May 30, 2017

OJCC Case: 93-001928                                          Date of Accident: 03/03/1993

Claimant’s Counsel: Brain Carter                      E/C’s Counsel:  Tracey Hyde

JCC Order: Click Here  

Briefly: Medical Necessity & Hindrance to Recovery Claimant sustained an on the job injury in 1993. He subsequently gained 114 pounds. Claimant alleged this was because of his debilitating pain and his resulting inability to exercise. Claimant’s authorized treating neurosurgeon, Dr. Johns, recommended gastric bypass surgery but stated that he did not have the expertise to say whether the Claimant is a candidate for the surgery. Dr. Johns admitted that he had no formal training in the area of bariatric medicine. The JCC determined that a referral for bariatric surgery could not be authorized when the physician is not qualified to make the referral.

Summary: Dr. Johns testified that the Claimant had repeatedly shown the inability or unwillingness to lose weight on his own. He opined that losing weight would greatly increase the Claimant’s quality of life. The JCC found it persuasive that Dr. Johns and the Claimant himself both had misgivings regarding proceeding with the surgery. Dr. Johns stated that if the Claimant was incapable of modifying his eating habits, the surgery would be ineffective. The Claimant himself was also reluctant to move forward with the surgery. The JCC ultimately concluded the record lacked competent substantial evidence to award authorization of the gastric bypass surgery.

Ronald Charles v. McRoberts Protective Agency

JCC Massey: Tampa District                                     Order Date: June 1, 2017

OJCC Case: 12-013092                                               Date of Accident: 04/13/2012

Claimant’s Counsel: Robert “Bobby” Wells         E/C’s Counsel:  Jennifer G. Bellinson

JCC Order: Click Here  

Briefly: Expert Medical Advisor There was a dispute between the Claimant’s authorized treating physician, Dr. Moises, and Claimant’s IME, Dr. Langone, regarding the MCC of the need for left shoulder treatment. The JCC appointed Dr. Richard Rozencwaig as an EMA to address the MCC of left shoulder treatment. Dr. Rozencwaig opined thatthe major contributing cause of any ongoing need for treatment of the claimant’s left shoulder is ordinary diseases of life, as opposed to the (work place accident).” The PFB was therefore dismissed with prejudice.