Daily FL Case Law Summaries – 8/30/16
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JCC ORDERS
Mark Charles v. Suncoast Hospice/Amerisure Insurance
JCC Rosen; St. Petersburg District; Order Date: August 25, 2016
OJCC Case: 16-011915SLR; D/A: 3/18/2016
Claimant’s Counsel: Michael J. McDonald
Employer/Carrier’s Counsel: Donald D. Kaelber
Briefly: ONE-TIME CHANGE IN PHYSICIAN – JCC Rosen granted a one-time change in physician and found the statute does not require the new physician to be in the same specialty as the former physician.
Summary: The claimant suffered a compensable right shoulder injury and was provided with authorized medical care from an occupational medicine specialist. The claimant filed a Petition for Benefits requesting a one-time change in provider for the claimant’s shoulder and right arm with Dr. Fred McClimans, a D.O. specializing in orthopedics.
The Employer/Carrier argued that pursuant to the plain terms of F.S. §440.13(2)(f), a request for a one-time change of physician must be within the same specialty as the originally authorized physician and cited the statute as follows:
…Upon the granting of a change in physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the Employer or Carrier…
The JCC rejected the Employer/Carrier’s argument and cited the first sentence of F.S. §440.13(2)(f) which states “Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident….” The JCC found this sentence does not refer to any type of specialty. The JCC stated that the Employer/Carrier takes too narrow a view of the quoted statute. The JCC ordered the claimant is entitled to a one-time change of physicians and that the one-time change may be in the same specialty as the original physician but the statute does not require that restriction.
Juan Carlos Linero v. Broward College/Gallagher Bassett Services, Inc.
JCC Forte; Ft. Lauderdale District; Order Date: August 26, 2016
OJCC Case: 14-011520IF; D/A: 5/6/2014
Former Claimant’s Counsel: Mark A. Touby
Employer/Carrier’s Counsel: Jorge A. Pina
Briefly: ATTORNEY’S FEE – JCC Forte denied entitlement to an attorney’s fee and found the change in physicians as authorized by the Employer/Carrier, based upon a subsequent Petition for Benefits filed by another attorney, did not relate back to the initial claim for compensability filed and later dismissed.
Summary: Claimant’s initial attorney, Mr. Touby, filed a Petition for Benefits in May 2014 claiming compensability. The Employer/Carrier filed an immediate response reflecting that the claim had been accepted as compensable. The day prior to state mediation, Mr. Touby filed a Notice of Resolution of all pending issues except for attorney’s fees and costs. Subsequently, Mr. Touby withdrew as counsel of record and the claimant became represented by another attorney who filed a Petition for Benefits requesting a change of physician and the Employer/Carrier authorized Dr. Rosabal.
It is Mr. Touby’s contention that the payments made to Dr. Rosabel were benefits secured by him and stemmed from his initial claim for compensability.
The JCC agreed with the Employer/Carrier and found that when Mr. Touby filed the initial Petition for Benefits claiming compensability, the claim had been accepted as compensable and medical benefits were being provided. Further, the JCC found that a change in physicians was authorized by the Employer/Carrier based on a subsequent Petition for Benefits filed by another attorney and did not relate back to the initial claim for compensability.
Jesus Capriles v. School District of Lee County/Johns Eastern Company, Inc.
JCC Weiss; Ft. Myers District; Order Date: August 26, 2016
OJCC Case: 15-016104JAW; D/A: 4/27/2015
Claimant’s Counsel: Ivette Labied
Employer/Carrier’s Counsel: Brian S. Bartley
Briefly: TEMPORARY TOTAL DISABILITY BENEFITS – JCC Weiss denied the claim for temporary total disability benefits from October 28, 2015, and found the only medical evidence was from Dr. Gerber who placed the claimant at maximum medical improvement on October 27, 2015.
Summary: The claimant argued that Dr. Gerber “retroactively” assigned maximum medical improvement and that the claimant was not aware he was released to return to work. The JCC rejected this argument and found the claimant knew or should have known he was released to return to work on October 27, 2015, based upon the DWC-12 filed by the adjuster immediately following Dr. Gerber’s maximum medical improvement report.
The JCC found the claimant’s testimony lacked credibility in that Dr. Gerber testified the claimant did not tell him about the prior 2005 motor vehicle accident and surgery and once Dr. Gerber learned of the actual history, he opined that the major contributing cause for the need for surgery was the pre-existing condition and not the compensable injury.