Briefly Speaking – FL Case Law Summaries (7/11/17)
By: Ryan M. Knight – Miami
Contributor: Tara Said – Pensacola
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First DCA Opinions
Edwin Velez v. CoAdvantage
JCC Condry: Orlando District Opinion Date: June 19, 2017
OJCC Case: 15-016212 Date of Accident: 05/21/2015
Claimant’s Trial Counsel: Basil A. Valdivia Claimant’s Appellate Counsel: Nicholas Sannin
E/C’s Trial Counsel: Bryan A. Lowe E/C’s Appellate Counsel: Bryan Lowe and Eric Nechter
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: One Time Change – The First DCA affirmed Judge Condry’s decision allowing the Employer/Carrier to authorize, as Claimant’s one time change, a physician within the same medical group as a previously de-authorized physician.
Summary: The Claimant was initially treating with Dr. Munson at Jewett Orthopedic. After Dr. Munson retired, the Employer/Carrier authorized Dr. Weber at Orlando Orthopedic. Claimant then requested a one time change and the Employer/Carrier authorized Dr. Meinhardt, also with Jewett Orthopedic. Claimant argued this authorization was improper because Dr. Munson (Ortho #1) and Dr. Meinhardt (Ortho #3) were affiliated with the same practice group. The DCA ruled that only the immediately preceding doctor (Dr. Weber with Orlando Orthopedic) is considered for the purpose of the one time change statute. Request for one time change denied.
Baycare Home Care Medical Supply v. Anibal Santiago
JCC Sojourner: Lakeland District Opinion Date: June 27, 2017
OJCC Case: 13-026822 Date of Accident: 08/30/2013
Claimant’s Trial Counsel: Craig Stewart Claimant’s Appellate Counsel: Craig Stewart and Wendy Loquasto
E/C’s Trial Counsel: Warren K. Sponsler E/C’s Appellate Counsel: Warren K. Sponsler and Janelle G. Koren
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Expert Medical Advisor – The JCC disregarded the EMA’s opinions because she found the testimony was “not the model of clarity.” The First DCA reversed the JCC’s decision as there was not clear and convincing evidence to overcome the EMA’s presumption of correctness.
Summary: Dr. Andres Vega was appointed as the Expert Medical Advisor to address whether the Claimant was at MMI as well as the MCC of the need for treatment. Because of alleged discrepancies between Dr. Vega’s report and his deposition testimony, the JCC disregarded Dr. Vega’s opinions regarding MMI and MCC. The DCA found that Dr. Vega’s opinions regarding MMI and MCC were clear. The JCC also failed to rely on any clear and convincing evidence when rejecting the presumptively correct EMA opinion.
JCC ORDERS
Dennis Murtagh v. Sunlife Stadium
JCC Kerr: Miami District Order Date: June 20, 2017
OJCC Case: 11-004227 Date of Accident: 06/20/2009
Claimant’s Counsel: William Heller E/C’s Counsel: James Price
JCC Order: Click Here
Briefly: Retroactive Temporary Total Disability – Claimant’s overall MMI was rescinded four years after originally being placed at MMI. The JCC determined that liability for indemnity benefits only restarted from the date the MMI was rescinded. TTD benefits were not owed retroactively back to the date of original MMI.
Summary: The Claimant was placed at overall MMI in 2013 by his various authorized treating physicians. On June 2, 2017, the Claimant’s subsequent orthopedic physician recommended a new course of treatment based upon “a new scientific understanding.” The doctor opined that the Claimant was not at overall MMI. The Claimant petitioned for TTD benefits from the date of original MMI to present. The JCC ruled that the Employer/Carrier was only liable for TTD benefits from the date the Claimant agreed to undergo the newly recommended treatment to present.
Clifton Smith v. Tampa Bay Buccaneers
JCC Lorenzen: Tampa District Order Date: June 19, 2017
OJCC Case: 16-029786 Date of Accident: 12/02/2009
Claimant’s Counsel: Neal Falk E/C’s Counsel: Ben Cristal
JCC Order: Click Here
Briefly: Statute of Limitations – The Employer/Carrier failed to prove the Claimant had actual notice of the statute of limitations despite producing a letter sent to the Claimant that very briefly and generally described the statute of limitations.
Summary: The Employer/Carrier argued that the statute of limitations had run despite admitting they had not provided the Claimant with the mandated informational brochure. The E/C argued that the Claimant had actual knowledge of the statute of limitations due to a letter which had been sent to the Claimant stating, “Please note the statute of limitations for medical care is 2 years from the date of accident and one year from the date of last medical treatment.” The JCC found this letter was insufficient to place the Claimant on actual notice of the statute of limitations because of various inaccuracies and omissions. Statute of limitations defense denied.
Jeffrey Rowe v. Charlie’s Coconuts
JCC Owens: Port St. Lucie District Order Date: June 23, 2017
OJCC Case: 13-021964 Date of Accident: 06/09/2011
Claimant’s Counsel: Cory Schnepper E/C’s Counsel: William Goran
JCC Order: Click Here
Briefly: Medical Benefits & Attendant Care – Claimant petitioned for his wife to be paid attendant care benefits at the Florida minimum wage, as opposed to the Federal minimum wage, along with overtime for all time worked over 40 hours. The JCC ruled that the Claimant’s wife could not be considered an employee of the Employer/Carrier. She was not, therefore, entitled to either Florida minimum wage or overtime pay.
Olivia Betancourt v. Baptist Medical Center
JCC Holley: Jacksonville District Order Date: June 27, 2017
OJCC Case: 11-001197 Date of Accident: 10/27/2008
Claimant’s Counsel: Jonathan Israel E/C’s Counsel: Richard Stoudemire
JCC Order: Click Here
Briefly: Permanent Total Disability – The JCC denied Claimant’s PTD benefits after considering the Claimant’s work restrictions, job search and vocational abilities. Although the Claimant was Spanish speaking, her inability to speak English could not be considered a detriment to her obtaining work as she had in fact obtained two separate jobs after the date of accident.
Summary: Claimant attempted to rely primarily on the third prong of the PTD test to establish that she was permanently disabled. “Permanent work-related physical restrictions that, while alone not totally disabling, preclude a claimant from engaging in at least sedentary employment when combined with vocational factors.” See Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010). The vocational expert, John Roberts, testified that there were over 80,000 Spanish speaking individuals in the area. Spanish speakers also accounted for 9.2% of the employees in the various job fields the expert identified as available for the Claimant. The JCC found that the Claimant’s vocational limitations were not such, when combined with her physical restrictions to establish entitlement to PTD.