Daily FL Case Law Summaries – 8/29/16
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1ST DCA ORDERS
Anthony Salzman v. Eli Reyes
Appeal of the Order from JCC Marjorie Hill
DCA Order Date: August 18, 2016
Case: 1D16-593; D/A: 10/27/2011, 1/6/2013
Appellant’s Counsel: Bill McCabe & Anthony Salzman
Appellee’s Counsel: Bryce A. Schmidt
Briefly: ATTORNEY’S FEES; CHARGING LIEN – The 1st DCA reversed Judge Hill’s denial of the former claimant’s attorney’s Verified Motion for Approval of a Stipulated Quantum Meruit Attorney’s Fee and found the JCC abused her discretion when she rejected the parties’ stipulation as to both the entitlement and amount of a quantum meruit fee.
Summary: The DCA reiterated that Florida has adopted the modified quantum meruit rule, “which limits recovery to the maximum amount of the contract fee in all premature discharged cases involving both fixed and contingency employment contracts,” and that quantum meruit liens apply to workers’ compensation settlements.
Here, former counsel for the claimant filed a verified motion to determine attorney’s charging lien and described services he performed for which he was seeking a fee. The claimant, through the successor attorney, agreed that the former attorney properly filed a lien, that quantum meruit is the proper method for determining a fee, and that the time expended for the fee amount was reasonable. The JCC entered an order following an evidentiary hearing denying the stipulated quantum meruit fee based upon a determination that former claimant’s counsel did not establish why he was discharged and did not show that he obtained any benefit for which he would be entitled to a claimant-paid attorney’s fee.
The DCA held that in order to reject the parties’ stipulation in this case the JCC was required to find some basis beyond the finding that the Appellant did not present sufficient evidence to establish a stipulated fact. The DCA found the Record contained no competent substantial evidence to refute the parties’ stipulation that the Appellant is entitled to a quantum meruit fee of $1,375.00.
JCC ORDERS
Helen Yohn-Weinstein v. Brighthouse Networks/ESIS WC Claims
JCC Sojourner; Lakeland District; Order Date: August 18, 2016
OJCC Case: 14-006362MES; D/A: 3/26/2013
Claimant’s Counsel: Laurie Thrower Miles
Employer/Carrier’s Counsel: Wanda M. Reas
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Sojourner ordered the Employer/Carrier to authorize an orthopedic physician to provide care and treatment for the compensable knee conditions and accepted the opinion of the EMA physician, Dr. Murrah, that the claimant’s knee condition is causally related to the compensable accident.
Summary: The JCC relied on the opinion of the Expert Medical Advisor, Dr. Murrah, and found the Employer/Carrier did not offer clear and convincing evidence to overcome that opinion. The JCC rejected Dr. Louisville’s opinions and found they were not sufficient to overcome those of the EMA.
The JCC noted that Dr. Louisville saw the claimant on two occasions and thereafter the claimant was seen by other physicians. The JCC also noted Dr. Lousiville is a family care physician, while Dr. Murrah is an orthopedic physician who specializes in orthopedic care and treatment.
Robert Rubero v. American Airlines/Sedgwick CMS
JCC Medina-Shore; Miami District; Order Date: August 18, 2016
OJCC Case: 15-024617SMS; D/A: 10/1/2015
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Michael Hernandez
Briefly: MEDICAL BILLS; TEMPORARY DISABILITY BENEFITS – the JCC found the Employer/Carrier waived its right to challenge payment of the hospital bills. The JCC also found the claimant is not entitled to temporary total/temporary partial disability benefits and rejected the claimant’s testimony as self-serving and unconvincing regarding his knowledge of work restrictions.
Summary: JCC Medina-Shore awarded treatment and responsibility of payment of bills from various physicians and found the Employer/Carrier waived its right to challenge payment of the bills by paying for the services of various medical providers for the hospitalization without evidence that the bills were paid due to mistake, fraud, or other valid excuse.
Further, the JCC denied the claim for disability benefits, including temporary total disability and temporary partial disability benefits, and found the claimant was able to earn wages in accordance with his light duty return to work. The JCC found the claimant refused the offer of suitable employment because he wanted to use a walker, a premise which was rejected by the medical evidence in this claim.
Virgil Thomas v. Joann Stores/Broadspire
JCC Lazzara; Tallahassee District; Order Date: August 18, 2016
OJCC Case: 15-029871JJL; D/A: 6/11/2015
Claimant’s Counsel: Maureen C. Proctor
Employer/Carrier’s Counsel: William K. Thames, II
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Lazzara granted the claim for temporary partial disability benefits and found the claimant satisfied his burden of proof that his injuries and work restrictions precluded employment within his ability as a store manager.
Summary: The JCC found the Employer/Carrier did not offer any type of employment during the period of time temporary partial disability was at issue and, therefore, the voluntary limitation defense was inapplicable. In making this finding, the JCC took into account the Employer’s testimony that had the claimant not resigned, they would have accommodated his work restrictions.
The JCC found it is undisputed the claimant had physician-imposed work restrictions and limitations up until he reached overall maximum medical improvement. The JCC found that work restrictions negatively impacted the claimant’s capacity to earn pre-injury wages and was, therefore, entitled to temporary partial disability benefits. The JCC found the claimant’s work restrictions precluded employment as a store manager, which requires long hours, standing, and walking.
The JCC noted that although the claimant tendered his resignation and initiated his separation from the Employer, that alone does not preclude further temporary indemnity benefits. The claimant testified that following his resignation, he applied for and received unemployment compensation benefits, subsequently found employment, and testified that his current employment is considerably more sedentary than his prior employment, although his salary is less than his average weekly wage.
Henry Crist v. Hillsborough County Sheriff’s Office/Commercial Risk Management, Inc.
JCC Rosen; St. Petersburg District; Order Date: August 18, 2016
OJCC Case: 16-005054SLR, 16-008263EHL; D/A: 1/20/2015
Claimant’s Counsel: Christopher Petruccelli
Employer/Carrier’s Counsel: L. Gray Sanders & Kristen Emerson
Briefly: MISREPRESENTATION DEFENSE – JCC Rosen rejected the Employer/Carrier’s misrepresentation defense and ordered the Employer/Carrier to pay medical and disability benefits.
Summary: The JCC rejected the misrepresentation defense and found the claimant did not attempt to avoid questions regarding his past medical condition, but simply did not remember any medical records regarding back complaints. The JCC explained that while back complaints may appear in the prior medical records, the claimant was never directly told that he had low back issues prior to the date of accident.
The JCC noted that in deposition, the claimant could not recall how long he had been married or how long he had owned his home. However, the JCC found the claimant did not dodge the questions, but rather simply indicated under oath he did not recall certain incidents.
The JCC found that while the claimant may be detail-oriented in his work repairing automotive issues, he is not a detail-oriented person with his life in general. The JCC did not find the claimant to be so creative as to weave a story of lies and deceit for the purpose of obtaining workers’ compensation benefits.
Ida Rivera v. Hillsborough County School Board/Broadspire
JCC Massey; Tampa District; Order Date: August 19, 2016
OJCC Case: 12-011453MAM; D/A: 7/11/2011
Claimant’s Counsel: Bradley Smith
Employer/Carrier’s Counsel: David Bromley
Briefly: EXPERT MEDICAL ADVISOR; MEDICAL NECESSITY – JCC Massey found the Notice of Conflict was filed untimely, and denied both appointment of an Expert Medical Advisor and the claim for arthroscopic surgery.
Summary: The JCC pointed out that two business days before trial, claimant’s counsel filed a “Notice of Conflict” citing the conflict in the opinions of various physicians and suggesting appointment of an Expert Medical Advisor would be appropriate. The JCC found the Notice of Conflict was filed untimely and declined to appoint an EMA, explaining that while a conflict does exist, that conflict was or should have been apparent at the latest in March 2016, almost five months prior to trial.
The JCC accepted the testimony of various physicians that the proposed arthroscopic surgery is not reasonable or medically necessary and found the vastly greater weight of the medical evidence is that there is no indication for surgery. The JCC rejected the opinion of the claimant’s IME physician, Dr. Fiore, that surgery is medically necessary and that he observed a surgical tear. The JCC found Dr. Fiore’s opinion is not supported by the records or the diagnostic testing, and is not logical, reasonable, or persuasive.
The JCC also rejected the claimant’s argument that the Employer/Carrier waived the medical necessity defense by failing to respond to the Petition for Benefits within ten days under F.S. §440.13(3)(d). The JCC noted the statute applies to requests for authorization from a physician, not from a claimant. When the request is from the claimant, the JCC found the Employer/Carrier has a “reasonable” time to investigate a response and there is no evidence in this case that the Employer/Carrier did not respond in a reasonable period of time.
Daniel J. Ingham v. Olde Tyme Construction/Auto Owners
JCC Anderson; Port St. Lucie District; Order Date: August 19, 2016
OJCC Case: 91-001984WWA; D/A: 5/8/1991
Claimant’s Counsel: Douglas H. Glicken
Employer/Carrier’s Counsel: Shawn B. McKamey
Briefly: STIPULATION; ATTENDANT CARE BENEFITS – Despite a prior stipulation, JCC Anderson ordered the Employer/Carrier to provide 24 hour attendant care, 7 days a week, subject to the statutory limitation that a family member or a combination of family members providing non-professional attendant care may not be compensated for more than a total of 12 hours per day.
Summary: The claimant sustained a severe traumatic brain injury in 1991 when he fell from scaffolding onto concrete. The Employer/Carrier did not dispute that constant attendant care of 24 hours per day, 7 days a week is medically necessary and has been for many years. The only issue in this claim was a question of law: does the 2012 stipulation between the parties limiting payment of 12 hours per day at $10 per hour continue to control?
The JCC noted the parties entered into a stipulation back in 2012 wherein it was agreed that 12 hours per day for attendant care provided by “Jill Renee Ingham” (the claimant’s wife at the time), will be “more than sufficient” unless “some sudden extremely detrimental unforeseen circumstances occur….” The JCC noted that more than one year after the stipulation was executed, the claimant and his wife divorced and the claimant’s wife stopped providing attendant care. The claimant remarried and the Employer/Carrier paid the new wife for the same 12 hours per day of attendant care, 7 days a week.
The JCC found the qualifying language in the stipulation assumed that Jill Renee Ingham would be providing attendant care. Because she is no longer providing attendant care, the JCC found he did not have the power to re-write the stipulation to address a contingency that could have been addressed when the stipulation was drafted. The JCC, therefore, ordered the Employer/Carrier to provide 24 hour attendant care, 7 days a week, subject to the statutory limitation that a family member or a combination of family members providing non-professional attendant care may not be compensated for more than a total of 12 hours per day.
Kathleen Merrill v. Holiday Inn Express & Suites, Krishna Hotel, LLC/AmTrust North America of Florida
JCC Humphries; Jacksonville District; Order Date: August 19, 2016
OJCC Case: 15-021803RJH; D/A: 9/2/2015
Claimant’s Counsel: Jeffrey W. Monroe
Employer/Carrier’s Counsel: Thomas G. Portuallo
Briefly: MOTION TO ENFORCE – JCC Humphries granted the Employer/Carrier’s Motion to Enforce Settlement Agreement and found a settlement agreement was reached as set forth in the email correspondence between counsels for both parties and that claimant’s attorney had communicated the terms and conditions of the settlement to his client and was given authority to accept settlement on those terms.
Summary: The JCC noted the claimant testified at hearing she did not agree to accept $12,000 to settle her case because it was not enough money to settle. The claimant testified she researched the cost of surgery two days after the emails between both counsels and understood it would cost $30,000 or more to have surgery to get her “back fixed.” The JCC also noted the claimant’s child support arrearage was reported two days after the emails between both counsels.
The JCC concluded that the claimant’s testimony that she never agreed to settle was refuted by the timeline presented. The JCC found claimant’s counsel confirmed communications with his client on the date of the email correspondence between both attorneys confirming that settlement was reached. The JCC found it is illogical to think the claimant would have rejected the settlement because of the cost of surgery when she did not learn of that cost until two days later, around the same time the child support arrearage was reported. Further, the JCC noted that claimant’s counsel filed a Notice of Resolution indicating all issues had been resolved and settlement documents would soon be submitted approximately three weeks following the email correspondence between both counsels.
Ines Rivera v. Target Corporation/Sedgwick CMS
JCC Humphries; Jacksonville District; Order Date: August 19, 2016
OJCC Case: 15-016788RJH; D/A: 7/10/2015
Claimant’s Counsel: Javier Basnuevo
Employer/Carrier’s Counsel: David Gold
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Humphries denied the claim for temporary disability benefits and medical treatment and found no medical evidence to establish that claimant sustained an injury to her chest or back as claimed. The JCC found the claimant failed to present medical evidence of the existence of an injury supported by a reasonable degree of medical certainty and based upon objective relevant medical findings.
Summary: The JCC noted the claimant had injured her right shoulder in an earlier workplace accident with the same Employer which was surgically repaired by Dr. Font-Rodriguez. Now, the claimant alleges an injury in July 2015 when she experienced increased levels of pain in her right shoulder and pain in her chest when moving boxes at work.
The only medical evidence presented was that of Dr. Font-Rodriquez, the authorized provider for the prior date of accident and the claimant’s designated IME physician for the instant event. The JCC found the claimant treated with Dr. Font-Rodriguez approximately eight months after the alleged July 2015 accident. During that time, she did not describe any accident or repetitive lifting events resulting in pain and the doctor found no difference in her physical condition or any changes from the last office visit prior to the alleged July 2015 accident.
The JCC found Dr. Font-Rodriguez testified the claimant’s current complaints are a “natural continuation” of her prior industrial accident.