Briefly Speaking July 2022 Author: Felicia Wymer Editors: Yosue Ochoa & Sabrina Persaud

Jackie Vitali v. Property Care Solutions, LLC, Avalon HR, LLC

JCC Walker: Pensacola District                                 Order Date: 6/10/2022

OJCC Case No: 21-017496                                         Date of Accident: 7/4/2020  

E/C Counsel: Tara Said

JCC Order:
Click Here

Briefly: Late Reporting/Compensability

Summary:  The claimant, a housekeeping supervisor for the insured, filed a Petition for Benefits alleging repetitive trauma injuries to the neck and back. The claim was denied for failure to timely report. Claimant alleged the date of accident as July 4, 2020, her last day of work, as the last “exposure” to the duties alleged to have caused her injuries. The employer/carrier maintained that no notice of injury was given until the Claimant’s attorney filed the Petition at issue in August of 2021, over a year following her last alleged “exposure” to the repetitive trauma. During deposition and at trial, the Claimant gave conflicting testimony as to whether she called her claim in to the carrier or, possibly, the 800 number for her attorney, and admitted that she did not report the issue to her direct supervisor, expressing concerns for conflict. The JCC found Claimant’s testimony “confusing and erratic” and determined the Claimant lacked credibility. Compensability of the claim was denied by the JCC.

Angela Wiggins v. Lakeland Regional Health System, Inc.

JCC Arthur: Tampa District                                                  Order Date: 1/26/2022

OJCC Case No: 20-007968                                                  Date of Accident: 10/10/2019

JCC Order: Click Here

Briefly: Fraud/Impairment Benefits

Summary:  Claimant’s counsel filed a PFB for payment of impairment benefits based on an eight percent permanent impairment rating assigned by Claimant’s IME. The Employer/Carrier denied the entire claim based on fraudulent and misleading statements allegedly made regarding prior medical treatment/complaints relating to the right shoulder. Claimant failed to advise during her deposition and to her authorized providers that she had twice treated for and received injections in the right shoulder. While the JCC found the statements to be false, the JCC opined that the statements were not made with the intent to secure benefits as evidenced by the Claimant advising the counsel for Employer/Carrier of facilities where she had received prior treatment. It was the JCC’s position that, should the Claimant have been trying to hide prior treatment, she would not have listed all prior providers from whom treatment had been obtained.  Finding no evidence of fraud, the JCC went on to address claims for impairment benefits. Claimant’s authorized providers assigned a zero percent permanent impairment rating to the shoulder following surgery. Claimant’s IME provider assigned an eight percent rating and recorded specific measurements in his physical examination of the range of motion of the shoulder which inspired such a rating, which the Claimant’s authorized providers failed to do. Accordingly, the JCC awarded impairment benefits based on the eight percent rating assigned by the IME.

Tobias Davila v. Labor Finders

JCC Clark:   Ft. Myers District                      Order date:   6/16/2022          

OJCC Case:   12-017240                               Date of Accident:   3/27/2012

JCC Order:   Click Here

Briefly:  PTD 

Summary:   The Claimant filed a PFB for PTD benefits from 8/9/2021 and ongoing. Claimant’s authorized pain management provider testified that the Claimant was permanently limited to one-handed work due to the inability to use the right upper extremity. The Claimant had been assigned MMI in January of 2016. No evidence of a job search nor any vocational evidence was submitted to the court. Claimant’s argument in favor of PTD benefits was a prior stipulation dated November 8, 2017, between the parties in which the E/C agreed to voluntarily pay PTD benefits. Per the Claimant, this Stipulation acted as a contract between the parties which required the E/C to continue PTD payments and argued that the E/C should be estopped from discontinuing payments as the Claimant had detrimentally relied on this voluntary agreement to pay and dismissed prior litigation accordingly. The JCC found that the Claimant failed to plead the elements of Estoppel in the pretrial stipulation, never made the argument in his trial memorandum, nor offered any evidence at Final Hearing in support of estoppel. The JCC found that a voluntary agreement by the Employer/Carrier to pay allows the Employer/Carrier to also voluntarily retreat from this position in the future if the Employer/Carrier determines a change in circumstances or other factors to justify same. The JCC denied PTD benefits as the Claimant failed to plead estoppel or offer any evidence of disability at trial.

Lula Fountain v. Pensacola Party Bus, LLC

JCC Walker:   Pensacola District                  Order date:   6/28/2022          

OJCC Case:   21-022083                               Date of Accident:   9/5/2021

JCC Order:   Click Here

Briefly:  Employer/Employee Relationship

Summary:    The E/C denied compensability of Claimants workers’ compensation claim on the basis that she was not an employee but an independent contractor, stating that no employee/employer relationship existed. The Employer supplies limos and party buses to paying customers, along with bus drivers, for various trips. According to testimony of the employer representative, drivers for the Employer are mainly school bus drivers available for runs. Hourly rates of pay varied and checks were paid to drivers “personally.”  The Employer did not maintain any full time drivers and drivers could decline routes without being “fired.” There is no guarantee of hours for drivers and a company shirt is offered to drivers, which they are free to take. The Claimant testified that she was never told she was not an employee, did not own a separate business, did not have a federal employer identification number, did not pay for gas or insurance for the vehicles, did not book any of trips for which she drove, did not bid on trips, and did not incur losses or expenses. The Employer paid for DOT-required eye exams, provided two company shirts, and paid her by check on an individual basis. The company’s job description required drivers to arrive on time, clean up buses, ensure vehicles had full tanks of gas, and keep offered beverages for customers cool. The Claimant had no control over the means of performing work. E/C argued that it was the Claimant’s ability to turn down work that should qualify her as an independent contractor, but the JCC found this insufficient in light of other evidence, finding instead that the Claimant operated as an on-call employee. Accordingly, the JCC found that the Claimant was an employee for purposes of workers’ compensation benefits and opined that flexibility does not render part-time workers independent contractors.