Editor: Felicia Wymer, Partner, Pensacola

Authors: Travis Coleman, Junior Partner, Tampa and Libby Nelson, Associate, Orlando

Ali Abukhalil v. The Home Depot USA, Inc. and Helmsman Mngt Services

JCC Hedler: West Palm Beach District                      Order Date: 05-24-2024

OJCC Case: 22-028002TAH                                       Date of Accident: 02-18-2022

JCC Order: Click Here

Briefly: TPD / Authorized Medical Care

Summary: The 24-year old Claimant was involved in a compensable accident and suffered injuries to his left knee when pushing a box containing a vanity alleged to weight between 150 to 200lbs. The Claimant had a prior left knee injury 3 years prior. The Claimant ultimately came under the care of Dr. Agudelo, who placed the Claimant at MMI with a full duty release on 2/3/2023. The Claimant obtained an IME with Dr. Simon, who recommended the Claimant undergo left knee reconstruction and bracing, as well as evaluation for the lumbar spine, resulting in Claimant’s requests for indemnity, additional knee surgeries, and post-operative rehabilitation. The Claimant’s claim for low back injury, potentially related to altered gait from the knee injury, was denied, as there was no substantial evidence to support this link. The remaining requests were denied by the Employer/Carrier based on medical opinions from authorized providers and the E/C’s IME, Dr. Brian Reiter, who concluded that the Claimant had reached MMI as of February 3, 2023, in accordance with the opinion of Dr. Agudelo and disagreed with Dr. Simon as to the need for additional knee surgeries and low back evaluation. The JCC ultimately found the evidence and testimonies from authorized medical providers and Dr. Reiter more credible than those of the Claimant’s expert, Dr. Simon, and requested benefits were denied. The JCC found no medical evidence to support the allegations of ACL tear/knee instability alleged by Dr. Simon as the basis of need for additional knee treatment, and noted that an FCE further established full ROM and strength of the knee. Dr. Simon, Claimant’s IME, was also noted to not have reviewed all prior medical, as the other providers had, and his opinions were posited on the position of the Claimant that all prior medical reports were inaccurate/untruthful.

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Christopher Owensby v. Punta Gorda Police Department and PGCS

JCC Weiss: Ft. Myers District                                    Decision Date:   06-06-2023

OJCC Case:   23-018961JAW                                     Date of Accident:    07-29-2021

JCC Order: Click Here                                                         

Briefly:  Statute of Limitations

Summary: A final hearing was held to determine if the statute of limitations had expired for a claim filed by a police officer who suffered a heart attack at home on July 29, 2021. The Claimant argued that the Petition for Benefits (PFB) filed on July 31, 2023, was timely, as the statute of limitations extended to the next business day because the deadline fell on a weekend. Despite this, the Employer/Carrier contended the PFB was untimely. The Judge found that under section 440.19, the statute of limitations starts when the employee knows or should know the injury is work-related. Since the Claimant did not learn of the potential for workers’ compensation coverage until June 21, 2022, the PFB was deemed timely. Consequently, the claim was found compensable, and the Employer/Carrier was ordered to provide benefits administratively and cover the Claimant’s attorney fees and costs.

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Harriett Walker Jr. v. Palm Beach County School Board, Palm Beach County School Board/F. A. Richard & Associates, York Risk Services Group and Johns Eastern Company, Inc.,

JCC Case: West Palm Beach District                         Decision Date:   06-22-2024

OJCC Case:   02-025175BKC                                     Dates of Accident:    12/09/1999 et al.

JCC Order: Click Here                                             

Briefly:  MCC, Indemnity/Voluntary Limitation of Income, Attendant Care

Summary: A PE teacher for Palm Beach County School Board, who began her career in 1994, suffered from Arnold Chiari Malformation, a neurological condition, following a 1991 auto accident but continued her work without issues related to this condition. Over her 20+ years with the School Board, she experienced 14 work-related accidents which were consolidated under one claim. The impairments and restrictions from her work-related injuries led to significant functional limitations and ongoing medical management. The Employer/Carrier accepted the compensability of the Claimant’s work-related accidents but contested that the current MCC of her disability and need for medical care was her preexisting Arnold Chiari and subsequent non-industrial incidents. However, the JCC found the evidence supported that the Claimant’s ongoing need for medical care and disability was primarily due to the combined effects of her work-related injuries, specifically those on January 30, 2008, November 1, 2019, and January 4, 2021. The JCC accepted the opinions of Dr. Krost and Dr. Sama over those of Dr. Graubert and Dr. Grandic, finding that the E/C failed to establish a break in the chain of causation or an apportionment defense. The claimant sought TTD or alternatively TPD from October 29, 2022, to March 1, 2023, or until the final hearing. The JCC determined the claimant reached MMI on March 2, 2023, per Dr. Sama. The Claimant did not qualify for TTD but was eligible for TPD benefits for the specified period since the E/C did not prove the availability of light-duty work. The JCC also rejected the E/C’s defense based on voluntary limitation of income due to insufficient evidence and awarded TPD benefits with penalties and interest. Additionally, the Claimant requested authorization for medical equipment and treatments deemed necessary by Dr. Sama and Dr. Krost. The JCC approved these requests, including 24-hour professional attendant care and 12 hours of non-professional care from June 30, 2023, to the hearing date. The JCC also approved home modifications to make the house ADA compliant.

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Ward v. ABC Fine Wine and Spirits/CCMSI

JCC Pitts:   Orlando District                                      Order date:   6/21/2024

OJCC Case:   23-028122NPP                                      Date of Accident:    7/20/2023

JCC Order: Click Here

Briefly:  Fraud/Misrepresentation & EMA

Summary: The Final Hearing was bifurcated, and the Order was limited to the misrepresentation affirmative defense. The E/C denied the claim in its entirety based on Fla. Stat. 440.09 and 440.105, as the claimant failed to divulge head trauma and resulting CT of the brain four months prior to the workers compensation accident, the claimant mischaracterized the description of and extent of an alleged right elbow injury, and misrepresented communications with authorized providers regarding “clearance” to attend an out of state reunion and failed to report that trip in relation to his recent capabilities to his authorized neurologist. In April 2023, the claimant reported to his primary care physician several issues including low blood pressure, low back pain/spasms, and hitting his head about 1 ½ weeks prior and allegedly lost consciousness for about 3 hours. Eventually, a CT of the head was ordered, but no follow-up records were placed into evidence. The diagnosis included syncope and collapse, but no head injury. As for the date of accident, the claimant was injured when he was struck on the head with a cash register drawer. Video of the incident confirmed impact and the claimant’s immediate reaction to place his hand on the area of impact. The claimant was referred to a neurologist, with the initial appointment occurring on August 25, 2023. During that appointment the claimant noted pain in his head and right hand. He also reported pain in the neck, thoracic spine, low back, foot and leg, hand and arm, face, and joint pain, none of which were related to the industrial accident. In making a ruling, the JCC placed the events in “context of this particular claimant” to “understand his actions and statements that are at issue.” During treatment, the claimant noted nausea and minor dizziness initially to the hospital, a mild headache and no dizziness with the urgent care, and a plethora of prior conditions to the authorized neurologist including lumbar radiculopathy, permanent nerve damage, and degenerative joint disease in the knees. As the claimant reported headaches, nausea, and a little dizziness to the authorized providers, the JCC found these were candid disclosures that do not portray an individual who would knowingly omit preexisting information. The JCC found that the failure to divulge is not actionable under section 440.105 as only oral or written statements made by the claimant may serve as the predicate for disqualification of benefits. The JCC also differentiated a head injury vs. a hit to the head, and as there is no medical diagnosis of a head injury, the claimant was not intentionally misrepresenting his prior conditions/injuries. As for the claimant’s travel, there were no travel restrictions placed by any authorized provider. Based on the above, the JCC denied the E/C’s misrepresentation defense.

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Schmidt v. Holiday Beach Rentals Development, Inc/Amerisure Insurance Co

JCC Walker:   Pensacola District                               Order date:   7/1/2024

OJCC Case:   23-029516JW                                        Date of Accident:    7/17/2022

JCC Order: Click Here

Briefly:  Voluntary Limitation of Income

Summary: The claimant was involved in a motor vehicle accident while she was in a work van. After being placed on restrictions, the Employer was able to accommodate. The claimant returned to work and never exceeded her restrictions. After excessive absences, the claimant was terminated. Following her termination, the claimant opened her own cleaning company, but quickly dissolved after completing a few jobs. Based on this, the JCC found that the claimant had failed to meet her initial burden of demonstrating a causal connection between the compensable injury and the subsequent loss of income. The claimant’s termination was an intervening cause that broke the causal chain between the work injury and the loss of income. Additionally, the claimant voluntarily limited her income by her excessive absences which ultimately resulted in her termination. Indemnity benefits were denied and dismissed with prejudice. 

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