Editor: Felicia Wymer, Partner, Pensacola Office

Author: Travis Coleman, Junior Partner, Tampa Office

Author: Libby Nelson, Associate, Orlando Office

Maria Ferrer Carrasco v. The School Board of Palm Beach County/Davies Claims North America, Inc.

JCC Anderson: West Palm Beach District                              Order date: 07/31/2024

OJCC Case: 22-006698GJJ                                                    Date of Accident: 02/03/2022

JCC Order: Click Here

Briefly: PTD Benefits

Summary: The claimant, a Spanish-speaking woman, age 50, filed a Petition for Benefits seeking PTD benefits, which the Employer/Carrier denied, arguing that the Claimant was unable to prove that she could not work at least sedentary duty. The Claimant was assigned permanent light duty restrictions by her authorized provider. However, the JCC still found that the claimant had met her burden of proof to demonstrate entitlement to PTD, relying on a mixture of vocational, educational, and physical elements. Specifically, the JCC relied on the Claimant’s vocational expert, who interviewed the Claimant in Spanish and testified that, while the Claimant had basic math skills, she spoke English at a Kindergarten level and had a below-average IQ. The Claimant’s vocational expert also noted that the Claimant had no transferable job skills from her prior employment and was not computer-literate. The Claimant’s vocational expert’s testimony was accepted over the E/C’s vocational expert’s testimony because he had performed IQ testing, testing on the claimant’s reading, writing, and mathematical abilities, had reviewed her deposition transcript and job search log,  and did not rely on the aid of a translator in the vocational examination.

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Aubrey John George v. UST Select, Inc/Insurance Company of the West

JCC Jacobs:   Orlando District                                               Order date:   11/30/2023

OJCC Case:   22-015117JEJ                                                   Date of Accident:    6/7/2022

JCC Order: Click Here                                               

First DCA Order: Click Here                                                  Order Date: 7/31/2024

Briefly:  Voluntary Limitation of Income/ Continued Care

Summary: The Claimant suffered injury to his low back when his work vehicle was rear-ended. He was treating with Dr. Maahir Haque, and during the course of treatment the doctor opined that the accident caused an exacerbation of his underlying degenerative conditions, which would be managed with non-operative modalities. Dr. Haque was presented with the claimant’s deposition testimony regarding the minor level of collision the claimant described. Later, the doctor opined that L5-S1 protrusions were unrelated and the claimant was placed at MMI on January 6, 2023. Dr. Haque did not discharge the claimant from his practice. The Claimant obtained an IME, who opined that the claimant was not at MMI for the lumbar spine. The JCC ultimately sided with the IME provider and awarded continued care. The JCC found no evidence to support a pre-existing condition to the lumbar spine. Likewise, no evidence was presented of a subsequent, intervening accident. No “baseline” evidence was presented and no evidence presented regarding a 120-day pay and investigate. TPD benefits were also denied for this claim on the basis of voluntary limitation of income, as the Claimant refused light duty work. However, the employer subsequently went out of business, so TPD benefits were granted for the period after which the employer went out of business, as at that point there was no suitable work available for the Claimant to refuse. The E/C appealed and the DCA affirmed.

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Denise Sparks v. Forrest Solutions

JCC Massey:   Tampa District                                    Order date:   12/8/2023

OJCC Case:   22-018355MAM                                    Date of Accident:    7/1/2022

JCC Order: Click Here

First DCA Order: Click Here                                      Order date:     7/31/2024

Briefly:  Penalties and Interest on late settlement funds

Summary: Handled by our very own Yosue Ochoa from the Tampa office at trial level, this claim involved a settlement agreement reached during a 4/4/2023 State Mediation. The mediation agreement was silent as to time for payment of the settlement proceeds and as to any consequences for late payment. Settlement documents included both 30-day and 14-day language for payment of settlement but was silent as to consequences for late payment. Claimant’s counsel drafted a Motion and Proposed Order for Approval of Attorneys Fees, with 30-day language included, as well as a penalty provision which E/C’s counsel filed. The Order on the settlement was also silent as to time for payment. Settlement checks were mailed on 6/6/2023. The issue the JCC was presented with was, “Did claimant’s counsel’s drafting of the motion and proposed order with the 30-day language and penalty provision, sending it to defense counsel, and defenses filing of it, constitute an offer and acceptance of the new terms?” The JCC found that the parties entered into a settlement agreement whereby the E/C agreed to pay a lump sum of money in exchange for a release from any further liability, with payment to be made within 14 days. A penalty of late payment was not part of the negotiation and not part of the agreement, nor an extension to 30-days. The JCC found that claimant’s counsel’s drafting of a motion with 30-day language and penalty language constituted a new offer to settle additional matters. Ultimately, there was no meeting of the minds and no acceptance of the additional terms, and at most the motion created a patent ambiguity. Thus, penalties are not applicable here. The Claimant appealed this issue. The appeal was successfully handled by Mary Frances Nelson of our Ft. Myers office, and the JCC’s decision was upheld.

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Kelly Floyd v. Tommy Bahama Restaurant/Travelers Insurance

JCC Weiss: Ft. Myers District                                                Order date: 08/12/2024

OJCC Case: 23-029146JAW                                                   Date of Accident: 10/29/2021

JCC Order: Click Here

Briefly: MCC

Summary: Compensability of the work accident and resulting cervical injury was initially accepted by the E/C. The claimant sought authorization for cervical spine surgery, which was recommended by the authorized provider. Of relevance, the Claimant had a prior cervical fusion in 2005, from which her issues were alleged resolved and after which she had only sporadic chiropractic treatment, the last in 2017. The E/C argued that the accident was not the major contributing cause of the need for surgery and that it was not medically necessary based on the opinion of E/C’s IME provider. The IME provider disputed medical necessity on the basis of lack of findings on the MRI at the requested surgical level, which was not consistent with the report. Accordingly, the JCC found the E/C’s IME provider’s opinion to lack credibility as to medical necessity and instead found the authorized provider’s opinion on medical necessity to be compelling. The JCC further found that the claimant had met their burden of proof to establish that the work accident was the major contributing cause of the compensable injury. Thus the burden shifted to the E/C to demonstrate that a break in the causal chain had occurred. The E/C was unable to establish that the industrial accident was not the MCC of the cause for surgery and the JCC granted the surgery, stating that the Carrier was unable to deny the surgery after accepting compensability of the cervical spine and providing treatment for same. 

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Lilia Felippe v. Fogo de Chao Brazilian Steakhouse/Safety National Casualty Corp.

JCC Clark: Ft. Myers District                                                Order date: 08/27/2024

OJCC Case: 24-003595FJC                                                    Date of Accident: 09/09/2022

JCC Order: Click Here

Briefly: Notice

Summary: Successful defense of this claim was handled by Ryan Knight of our Miami office. The claimant alleged she was injured while working as a server for the Employer. She conceded she did not have a specific accident but testified that she reported back pain to her supervisor “on several occasions” which she attributed to “hard work” at a “busy restaurant.” The claimant was terminated on September 3, 2022, prior to the Petition’s claimed injury date of September 9, 2022. Testimony from her supervisor and HR indicated no knowledge of her injury during her employment and noted that the Claimant’s last day actually working for the insured was August 30, 2022. The claimant also testified to working a second job at a “flip-flop store.” Medical records from an emergency room visit in October stated that the “pain started 5 [days] ago after moving boxes of shoes.” The JCC concluded that the claimant failed to provide timely notice of any work-related injury and dismissed her PFB with prejudice.

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