Briefly Speaking – FL Case Law Updates (10/26/17)

By:                    Ryan M. Knight – Miami

Contributor:   Tara Said – Pensacola

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First DCA Decisions

Rodney Puckett Jr. v. Vallencourt Construction

JCC Humphries: Jacksonville District                 Opinion Date: October 10, 2017

OJCC Case: 13-018640                          Date of Accident: 06/14/2013

E/C’s Appellate Counsel: Kip Lassner & Daniel Schwarz

E/C’s Trial Counsel: Kip Lassner & Thomas Portuallo

Claimant’s Appellate Counsel:            Bill McCabe & Martin Leibowitz  

Claimant’s Trial Counsel: Martin Leibowitz                   

JCC OrderClick Here                                       1st DCA Order: Click Here

Briefly: Admissibility of Evidence – The Claimant moved to have the Final Compensation Order denying surgery amended due to the Employer/Carrier’s alleged “scheme to defraud” the Claimant. Claimant’s Counsel alleged the Employer/Carrier purchased the opinions of its IME regarding the need for surgery. After obtaining the testimony of the adjuster and defense counsel, the JCC found that there was no conspiracy to defraud the Claimant. The First DCA affirmed this decision per curiam.

Linda Szorosy v. Watkins Associated Industries, Inc.

JCC Hedler: West Palm Beach District               Order Date: October 10, 2017

OJCC Case: 05-037420                                           Date of Accident: 7/12/1993

E/C’s Counsel:  Faith Searles                              Claimant’s Counsel: Harvey Kaufman

JCC OrderClick Here  

Briefly: Attendant Care Benefits – The Claimant petitioned for household cleaning and pool servicing following the death of her husband. The Claimant maintained that she was incapable of maintaining her large property and required assistance. Claimant’s Counsel largely relied upon case law awarding lawn care benefits to injured workers. The Employer/Carrier prevailed, however, as the medical testimony failed to establish that the attendant care benefits would improve the Claimant’s condition. Specifically, the authorized treating physician testified that the household services were “not a medical necessity… it’s a quality of life issue.” The JCC also noted that under the current law, even medically necessary household assistance provided by a third party cannot be furnished at the E/C’s expense.

Alina E. Vazquez v. Courtyard by Marriott Tampa Westshore

JCC Lorenzen: Tampa District                           Order Date: October 9, 2017

OJCC Case: 16-027220                                            Date of Accident: 9/28/2016

Claimant’s Counsel: Stephen M. Barbas            E/C’s Counsel:  Pamela J. Cox & Jodi Mustoe

JCC OrderClick Here  

Briefly: Notice – The Claimant was terminated after 16 years of employment as a housekeeper. Claimant reported the injury 42 days after her termination and five months after the initial manifestation of pain. Claimant’s Counsel contended that Claimant’s inability to speak English constituted an exceptional circumstance excusing her failure to report her injury within 30 days. The Employer/Carrier provided all Workers’ Compensation and notice information in Spanish to the Claimant. The JCC noted, however, that there is no statutory requirement that the notice information be provided in any language other than English. The claim was denied based on Claimant’s lack of proper notice.

Olga Maria Rodriguez v. Select Staffing

JCC Rosen: St. Petersburg District                     Order Date: October 6, 2017

OJCC Case: 17-007068                                           Date of Accident: 2/28/17

Claimant’s Counsel: Michael Winer                   E/C’s Counsel:  Gregory S. Raub & Eric Arckey

JCC Order: Click Here

Briefly: Voluntary Limitation of Income – The Claimant’s job duties entailed packing eyeglasses into containers. After the accident, the Claimant was offered a light duty job holding a sign outside of the employer’s place of business. The Employer/Carrier cut off Claimant’s indemnity benefits after Claimant refused to perform this job. The JCC ruled that this refusal was justified largely because the employer failed to provide written notice of the light duty job as required by the statute and 60Q rules. The Employer/Carrier only verbally communicated the job to the Claimant and was therefore ordered to pay all back due TPD benefits plus penalties and interest.

Terelle Jones v. United Health Group

JCC Lorenzen: Tampa District                           Order Date: October 5, 2017

OJCC Case: 17-010480                                        Date of Accident: 2/27/17

Claimant’s Counsel: Kevin R. Gallagher        E/C’s Counsel:  Brian C. Dowling

JCC OrderClick Here  

Briefly: One Time Change – The carrier provided a fax number for faxed communications. The fax number indicated by the Carrier was actually directed towards a document service company which converted the fax into electronic form and inputted the document into the Carrier’s system. By the time the adjuster received the fax, more than five days had passed. The adjuster authorized a physician within five days of receiving the electronic document. The JCC ruled that this authorization was untimely largely because it was the Carrier who chose to list this fax number. The fact that their system took more than five days to process the request did not toll the five day requirement.