Briefly Speaking – FL Case Law Update (1/19/18)

Edward Webb v. Quality Stone

JCC Clark: Ft. Myers District                              Order Date: January 2, 2018

OJCC Case: 16-023827                                       Date of Accident: November 4, 2013

Claimant’s Counsel: Bill B. Berke                    E/C’s Counsel: Daniel R. Goodman

JCC OrderClick Here

Briefly: Medical Benefits – Claimant obtained an IME by physiatrist Dr. Albert Ray. The IME was obtained prior to the filing of a PFB and proposed various medical treatment. None of the requested medical care was being recommended by his authorized providers and none of them were willing to provide that care as being necessary. All medical treatment recommended by Claimant’s IME was denied as no dispute existed at the time of the IME and because no authorized treating physician recommended any of the medical treatment at issue.

Summary: The Employer/Carrier authorized treating physicians to include a neurologist, psychiatrist, neurosurgeon, and physiatrist. The Employer/Carrier authorized all treatment prescribed by these approved providers. Prior to filing a PFB, or denial of any treatment, Claimant obtained a physiatrist IME who recommended various additional medical care. The JCC opined that this IME was improper as no dispute existed at the time Claimant obtained his IME. Additionally, none of the Claimant’s numerous authorized treating physicians were willing to perform any of the proposed medical care recommended by Claimant’s IME physician. The JCC denied the care deemed necessary by Claimant’s IME physician because no dispute existed at the time of the IME and because no authorized treating physician recommended any of the medical benefits at issue.

Harry Stevenson v. Novolex Holdings, Inc.

JCC Holley: Jacksonville District                        Order Date: January 8, 2018

OJCC Case: 17-011388                                           Date of Accident: February 23, 2018

Claimant’s Counsel: Cynthia L. Denker             E/C’s Counsel: Kimberly A. Fernandes

JCC Order: Click Here 

Briefly: Compensability (Repetitive Trauma) & Major Contributing Cause – Claimant sought medical treatment for a stress fracture in the right tibia. No specific trauma or incident was noted but Claimant contended it was a repetitive trauma injury. Employer/Carrier argued the stress fracture was due to Claimant’s chronic vitamin D deficiency. The JCC determined the Claimant met the burden of proof for compensability of a repetitive trauma claim.

Summary: Claimant had been complaining of bilateral knee pain for some time and approximately four months after the date of injury, it was discovered Claimant had a stress fracture in the right tibia. The authorized treating orthopedic surgeon opined this was caused by his rigorous work duties despite his lengthy history of osteoarthritis. Employer/Carrier appointed Dr. Carrisquillo as their IME but he did not examine the Claimant’s knees as his specialty was feet and ankles. Nevertheless, he testified during his deposition that the Vitamin D deficiency could contribute to the stress fracture. The JCC found this testimony unpersuasive and granted authorization for treatment of the right knee. 

Marie Lafleur v. The Arbor Holding Company, LLC d/b/a Barrington Terrace of Fort Myers

JCC Clark: Ft. Myers District                              Order Date: January 9, 2018

OJCC Case: 16-026728                                         Date of Accident: November 23, 2014

Claimant’s Counsel: Cory J. Pollack                  E/C’s Counsel: Kelley A. Richards

JCC Order: Click Here

Briefly: One Time Change – The Employer/Carrier timely responded to Claimant’s one-time change request but the named physician refused to treat the Claimant. The Employer/Carrier then authorized another physician within five days after the initial doctor notified the adjuster he would not treat the Claimant. Claimant’s Counsel argued this constituted an untimely response to the one-time change. The JCC disagreed and found the Employer/Carrier complied with Fla. Stat. § 440.13(2)(f).

Summary: Claimant’s Counsel contacted the attorney for the Employer/Carrier on May 5, 2017 requesting a one-time change in physiatrists. The Employer/Carrier responded on May 8, 2017 authorizing Dr. Preudhomme as the new physician. On May 19, 2017 Dr. Preudhomme contacted the adjuster and informed her that he refused to treat the Claimant. Five days later, on May 24, 2017 the Employer/Carrier authorized another physiatrist, Dr. Isaacson and scheduled the appointment. Claimant’s Counsel contended the Employer/Carrier intentionally authorized a physician they knew would not treat the Claimant to buy more time. The Judge found no basis for this argument and determined that the Employer/Carrier timely responded to the initial request and timely authorized a second physician after the initial doctor’s refusal.

Michael J. Craighead v. Dollar Tree

JCC Winn: Pensacola District                             Order Date: January 10, 2018

OJCC Case: 15-026500                                         Date of Accident: April 14, 2015

Claimant’s Counsel: Brett Vigodsky                 E/C’s Counsel: Benford L. Samuels

JCC Order: Click Here 

Briefly: Compensability (Exposure) & Major Contributing Cause – Claimant developed viral meningitis shortly after receiving an authorized epidural steroid injection. The Employer/Carrier argued this constituted an exposure case and subjected the Claimant to a much higher burden of proof. The JCC disagreed because the exposure did not take place in the course and scope of Claimant’s employment. As such, the Claimant only had to prove the ESI was the MCC of the viral meningitis. The JCC determined the Claimant met that burden and granted treatment for the viral meningitis.

Summary: The Claimant’s authorized treating physiatrist, Dr. Chipman, performed an ESI on 9/26/16. Two days later, the Claimant contacted the doctor complaining of headache, nausea, vomiting and increased temperature and was immediately advised to go to the ER where he was diagnosed with viral meningitis. During Dr. Chipman’s deposition he repeatedly testified that the viral meningitis was likely related to the ESI. The JCC found this evidence sufficient to prove the ESI was the MCC of the viral meningitis.

The JCC disagreed with the Employer/Carrier that the Claimant should be held to the heightened burden governing exposure claims. Fla. Stat. § 440.02(1) states “[a]n injury or disease caused by exposure to a toxic substance, including, but not limited to fungus or mold, is not an injury by accident arising out if the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.” Because this infection occurred during authorized medical treatment, as opposed to during the Claimant’s employment, the JCC dismissed this argument.