Briefly Speaking – FL Case Law Updates (10/1/19)

Corripio, Luis R. vs. Coastal Export Inc.

JCC Jacobs: Miami District                                     Order Date: 9/16/2019

OJCC Case:   18-026824JIJ, 19-002249JIJ             Date of Accident: 11/1/2016, 3/7/2017     

Claimant’s Counsel:  Richard J. Dolan, II               E/C’s Counsel:  Janetlee Garcia

JCC Order: Click Here

Briefly:  TPD/Voluntary Limitation of Income

Summary:  The Claimant injured his left arm at work on 11/1/2016, and had initial treatment at an authorized urgent care facility, where he was assigned no work restrictions. The Claimant did not follow up after his initial evaluation. Then, the Claimant had a second accident at work on 3/7/2017, in which he injured his head. The Claimant filed for TPD benefits from 3/23/2017 forward under both claims. The TPD claim was rejected under the 11/1/2016 date of accident, as there was no medical evidence placing him on a light duty work status. With regard to the 3/23/2017 head injury, providers returned the Claimant to work “as tolerated.” The JCC again denied TPD entitlement, finding that “as tolerated” restrictions without more is insufficient to meet the Claimant’s burden to prove the medical condition resulting from the accident restricted his ability to return to work.  The JCC also found that the Claimant voluntarily limited his income by refusing an offer of employment from the insured following his second date of accident.

Joiner, James L. vs. HEAVYQUIP DADE CITY

JCC Young: Tampa District                          Order Date: 9/18/2019

OJCC Case:   18-030560RLY                                   Date of Accident: 10/31/2018  

Claimant’s Counsel:  Lee Amento                            E/C’s Counsel:  Alan D. Kalinoski

JCC Order: Click Here

Briefly:  Credibility

Summary:  The Claimant alleged he injured his wrists at work, and further alleged that he had reported his injury to a co-worker and supervisor. The supervisor stated that the Claimant did not report he had injured his wrist until 12 days after the Claimant’s termination, when he was returning uniforms, but said that he was fine and thought he only had a bruise. The Claimant went to the ER in December of 2018, and reported an initial wrist injury in early October, and a second injury at the end of October, which was inconsistent with his deposition testimony.  Due to multiple discrepancies between the Claimant’s testimony in deposition versus Final Hearing, ranging from topics of the work accident, his prior divorce, his work history, and his interactions with fellow employees, the JCC found the Claimant to lack any credibility and noted that there was no evidence that the Claimant was ever clear with the Employer regarding the alleged injury. For this reason, compensability of the claim was denied. 

Blair, Rhonda vs. Select Rehab  

Judge Pitts: Orlando District                                    Order Date: 9/13/2019

OJCC Case:   17-011250NPP                                   Date of Accident: 1/15/2017

Claimant’s Counsel:  Daniel DeCiccio                     E/C’s Counsel:  Eric R. Eide

JCC Order: Click Here

Briefly:  Adjustments to AWW

Summary:  A PFB was filed for adjustment of AWW to the Claimant’s base wages, as the Claimant did not work at least 75% of her customary hours in the 13 weeks preceding the industrial accident due to being out of work for a prior workers’ compensation claim. A prior PFB had been filed seeking adjustment of the AWW based on the contract of hire, plus the cost of health insurance. The E/C stipulated to the requested AWW in the Pre-Trial for this prior PFB, and continued to use this previously stipulated rate in later Pre-Trial Stipulations. The E/C later adjusted the AWW to reflect the earnings of a “similar employee”, which resulted in a lower AWW.  The JCC found that the alleged “similar employee” did not qualify under the statute, as the employee made $1.00 per hour less and worked at a different facility. The JCC further determined that the E/C had previously stipulated to the AWW using the Claimant’s full-time wages and did not seek judicial relief to set those stipulations aside, and as such, those stipulations were binding and the E/C was precluded from attempting to establish a contrary wage unless and until the stipulation is set aside. The Claimant was awarded TPD benefits at this higher rate.

Myrbel, Belice vs. Hertz Car Rental

JCC Jacobs: Miami District                                     Order Date: 9/19/2019

OJCC Case:   18-014961JIJ                                     Date of Accident: 4/17/2018

Claimant’s Counsel:  Paul E. Suss                            E/C’s Counsel:  Thomas J. Cox, III

JCC Order: Click Here

Briefly:  Fraud

Summary:  A fight broke out in the workplace, and the claimant alleged that he was punched repeatedly and held down by his supervisor who was swearing at him. The Claimant filed a PFB for compensability, adjustment of AWW, indemnity, and payment of medical bills. The issues were bifurcated, and the issue of compensability was first decided. The E/C initially denied this claim on the basis that the Claimant was the aggressor, but was found to have presented insufficient evidence of this claim at a prior hearing. At the present hearing for the remainder of the issues on the pending PFB, the E/C denied all requested benefits on the basis of Fraud. The Claimant testified that the assistant manager with whom he was in an altercation swore at him and punched him repeatedly. He denied that this individual was in a medical boot at the time of the altercation. Witnesses to the altercation denied that the assistant manager ever punched the Claimant or swore at him, and multiple parties testified that the assistant manager was in a medical boot at the time of the altercation. Due to these inconsistencies, the JCC found the Claimant’s testimony to lack credibility and ruled that the Claimant was not entitled to medical or indemnity benefits.

Richardson, Debra vs. Escambia County School District 

JCC Walker: Pensacola District                               Order Date: 9/17/2019

OJCC Case:   17-012599JW                                     Date of Accident: 1/12/2015

Claimant’s Counsel:  J.J. Talbott &                         E/C’s Counsel:  Joseph Hammons

                                           Mark Belcher

JCC Order: Click Here

Briefly:  Nurse Case Managers  

Summary:  The Claimant’s attorney filed a Motion for Protective Order to prevent an independent nurse case manager, not employed by the employer or carrier, from having ex parte communications with the authorized providers.  The JCC agreed, reasoning that the nurse case manager was not a direct employee of the Employer/Carrier, nor was she a qualified rehabilitation provider for the purposes of F.S. 440.13(4)(c), and was not permitted to discuss matters of the Claimant’s treatment with authorized providers.  Florida Statute 440.13(4)(c) states, in relevant part, the following: “upon the request of the employer, the carrier, an authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness for which compensation is sought must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons . . .”  While the JCC agreed that the Employer/Carrier is allowed to use whomever it may desire to investigate medical claims, the JCC noted that Florida Statute 440.13(4)(c) chose not to include language allowing an Employer’s agent to communicate with doctors. The nurse case manager was allowed to continue management of the claim, but was prohibited from any further ex parte communications with the Claimant’s authorized providers.