Briefly Speaking- May 2024

Editor: Felicia Wymer, Partner, Pensacola Office

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

Raul Fonte v. ECU Worldwide and Memic Indemnity Company

JCC Kerr: Miami District                                          Order Date: 04-24-2024

OJCC Case: 23-012326MGK                                      Date of Accident: 04-27-2023

JCC Order: Click Here

Briefly: Repetitive Trauma

Summary: The claimant, a forklift operator, sought indemnity and medical benefits arguing he developed injuries to multiple body parts due to repetitive heavy lifting.  E/C denied arguing that the Claimant’s work duties were not the MCC. The JCC found the Claimant’s testimony about his lifting requirements to be lacking in credibility and found that he did not perform repetitive heavy lifting. There was uncontroverted evidence that the claimant suffered from significant degenerative changes. Though the Claimant met the first requirement of the Festa test for repetitive trauma, prolonged exposure of more than a decade of forklift operation, and the third prong, an increased hazard from that of the general public, the Claimant failed to meet the second prong of the test. The Claimant failed to prove by clear and convincing evidence that the cumulative effect of the exposure resulted in an aggravation of his preexisting degenerative condition. Specifically, the JCC found Dr. Lazzarin, the IME provider, relied too heavily on his “personal experience operating a forklift for a summer” to ascribe the Claimant’s condition to the work performed. The JCC denied the claim in its entirety.


Pondrina Bradley v. Lacer Trading LLC dba La Rural Mexican Grill and Travelers Indemnity Company of America

JCC Ring: Ft. Lauderdale District                             Order date:   04-25-2024

OJCC Case:   23-001875MJR                                     Date of Accident:    01-07-2023

JCC Order: Click Here

Briefly:  Major Contributing Cause / Indemnity

Summary: Claimant was injured while in the course and scope of her employment on January 7, 2023. The accident was accepted as compensable and medical treatment was authorized for her head, neck, low back, and right hip. On July 12, 2023, the Claimant suffered a stroke. Following this medical event, E/C suspended payment of Claimant’s TTD benefits. Subsequent to the Claimant’s stroke, an authorized doctor stated that the claimant was still having difficulty communicating as well as right sided paralysis, both of which were caused by her stroke. A second authorized provider opined that her overriding main problem was her stroke with the paralysis on the right side of her body. The E/C met their burden of proof regarding the causal connection by demonstrating a break in the causation chain. The JCC found that the MCC of the claimant’s inability to work was not the work accident and the request for indemnity benefits was denied.


Frances Smith v. Palm Beach County School Board and Sedgwick CMS

JCC Case: Ft. Lauderdale District                             Decision Date:   01-09-2023

OJCC Case:   17-017225BKC                                     Date of Accident:    06-29-2017

JCC Order: Click Here                                              PCA Date:    04-26-2024

Briefly:  Statute of Limitations

Summary: Claimant prevailed at final hearing regarding her choice of OTC of physician. The E/C appealed and was successful. During the pending appeal, which was greater than one year, claimant was not provided any authorized medical treatment. The E/C argued that the claimant should have seen the authorized E/C OTC physician “under protest” or filed another petition. The JCC rejected the E/C position. The JCC would not have had jurisdiction to consider another petition requesting the same benefit already on appeal. The JCC held the SOL was tolled during the pendency of the appeal. E/C appealed and the First DCA affirmed the decision per curiam.


Jose Pena v. Wood Group USA Inc. and Broadspire

JCC Hedler:   West Palm                                                        Order date:  11/10/2022

OJCC Case:   22-008232TAH                                                 Date of Accident:    3/15/2022

JCC Order: Click Here

First DCA Order: Click Here                                                

Briefly:  Indemnity & Voluntary Limitation of Income

Summary: The claimant suffered an injury to his head, neck, and left shoulder after striking his head against a scaffold that was improperly constructed. The only issue for adjudication was TPD benefits from April 7, 2022, to the date of the Final Hearing on October 14, 2022. The E/C defended the claim upon an argument of no casual connection between the industrial accident and the lost wages, and voluntary limitation of income/refusal of suitable employment. In this claim the claimant did not lose wages until after he left the accommodated work provided by the Employer. The Employer was not directly contacted by the claimant about him leaving the job, in fact it was the claimant’s roommate that told the insured. Based on the claimant’s testimony, he decided to return to his home in Houston, and conceded that he was working within his restrictions until that decision. The claimant testified that he has not looked for work since leaving Florida. He further testified that he left the job due to not feeling useful, other employees’ interactions with him, and due to pain. Accordingly, the JCC found that the claimant failed to meet his burden showing a requisite causal connection between the industrial accident and the lost wages. 


Vidal Sada v. Eckerd Express Photo/Travelers Insurance

JCC Arthur:   Tampa                                                             Order date:  4/24/2024

OJCC Case:   13-021350RAA                                                 Date of Accident:    4/5/1989

JCC Order: Click Here         

Briefly:  Hinderance to Recovery

Summary: The claimant was injured when he was exposed to chemicals working in the lab for Eckerd Express Photos. A Compensation Order entered in 2014 found the psoriasis and psoriatic arthritis were compensable. The claimant had a recurrence of a chest wall osteomyelitis infection, which in 2019 caused the claimant to undergo emergency coronary arterial bypass grafting surgery. In 2023, he was hospitalized for the recurrence of the infection. The claimant sought payment of the bills from his ER stay under two theories, that the use of immunosuppressants for treatment of his compensable psoriatic arthritis caused the osteomyelitis, and the infection was a hinderance to recovery as he could not take his necessary immunosuppressants while he had the osteomyelitis. In fact, the authorized provider stated approximately 18 times that the claimant’s use of immunosuppressants contributed to the development of osteomyelitis. The JCC did find that the doctors’ testimony established a causal connection between the claimant’s use of immunosuppressants and the infection developing. As the JCC dealt with a 1989 date of accident, the claimant’s burden was to provide competent, substantial evidence of a state of facts from which it may be found, consonant with logic and reason, that the osteomyelitis was caused by his use of immunosuppressants. The burden then shifts to the E/C to overcome that showing with competent evidence of another cause more logical and consonant with reason. Based on the doctor’s testimony, there was enough evidence of a finding of causal relationship between the use of immunosuppressants and the development of osteomyelitis. As for hinderance to recovery, the JCC found that the need for treatment was primarily due to a serious condition that had to be fixed. As the treatment of the osteomyelitis to enable the claimant’s resumption of immunosuppressants was only an incidental cause of his need for treatment, it would not have been compensable under a hinderance to recovery theory.