Eraclides Gelman March Briefly Speaking

Editor: Felicia Wymer, Partner, Pensacola Office

Author: Travis Coleman, Junior Partner, Tampa Office

Author: Libby Nelson, Associate, Orlando Office

Angel Rodriguez v. Encore Group and ESIS WC Claims

JCC Ring: Ft. Lauderdale District                              Order Date: 02/27/2024

OJCC Case: 22-027318MJR                                       Date of Accident: 04/01/2022

JCC Order: Click Here

Briefly: Notice

Summary: The Claimant alleged an injury to his left knee on April 1, 2022, while moving heavy crates up the parking ramp for several hours. The Claimant came to work on April 6, 2022, and testified that he told his supervisor about the injury. The supervisor testified that she was not informed about a work-accident. The Claimant received medical treatment independently. There was no mention of a work-related injury in the medical records. The intake forms the claimant completed state that the left knee pain was not the result of a workers’ compensation injury or any injury. The JCC found the Claimant’s testimony unconvincing, considering the supervisor’s credibility, including her experience with reporting claims and her own prior claim; the lack of mention of the accident in medical records; and the Claimant’s failure to follow up on the alleged reporting. The JCC held that the Claimant failed to provide competent, substantial evidence that he reported his accident within 30 days of the initial manifestation of the injury as required under F.S.440.185(1). The claim was denied.


Rosa Lopez v. BuildCon, Inc. d/b/a Landscaping Professionals and USIS, FCBI

JCC Anderson: Orlando District                               Order date:   02/29/2024

OJCC Case:   20-021929WWA                                   Date of Accident:    06/08/2020

JCC Order: Click Here

Briefly:  Authorization of Medical Authorization

Summary: This is the second compensation order entered in this case. The first, entered on July 14, 2022, granted a claim for authorization of a gynecologist to evaluate the Claimant to determine whether her frequent vaginal bleeding is causally related to injuries sustained in the industrial accident.  The claimant underwent an examination with Lawren Mundy, APRN on September 14, 2022, an ultrasound on September 30, 2022, and a second appointment with Lawren Mundy on May 24, 2022. No referral was made by the provider and the ultrasound and pelvic examination were both negative. The Claimant then sought evaluation with an OBGYN as the current provider, Lawren Mundy, APRN, would not opine on causation regarding the Claimant’s vaginal bleeding and pelvic pain. The JCC held that that because the symptoms and complaints were thoroughly evaluated by Dr. Mundy, the claimant did not object to the evaluation, and there were no new symptoms or complaints, the claim for an evaluation with an OBGYN was denied.


Kyndall Taylor v. Baptist Health Care, Inc. and PMA Insurance Group

JCC Walker: Pensacola District                                 Order date: 01/31/2024

OJCC Case: 21-019977JW                                         Date of Accident: 07/14/2020

JCC Order: Click Here

Briefly: Authorization of Medical Care – Credibility

Summary: The Claimant was injured on July 14, 2020, when she stumbled on a stairwell due to excessive heat. The Claimant was referred to a neurologist for post-concussion syndrome and was treated by Dr. Kessler. The Claimant was first seen on October 19, 2020. Results of the EMG and EEG were both normal. At a visit on November 30, 2021, Dr. Kessler felt the claimant’s cognitive issues may relate to a preexisting anxiety and behavioral health issues but ordered neuropsychological testing in an abundance of caution. The Claimant never attended the testing. The Claimant was treated again on May 11, 2023, and told to follow up with her PCP for her medication, she was maintained at MMI, and a follow-up appointment was not needed. The Claimant obtained an IME and sought continued treatment based on the IME’s recommendation. The JCC found the authorized provider’s medical opinions acceptable over the Claimant’s IME’s medical opinion. In making this decision, the JCC considered that Dr. Kessler had treated the Claimant on several occasions, unlike the IME provider, who only saw the Claimant for the one visit. The JCC also considered the experience and certifications of the providers and their opinions’ correlation to medical records filed. The JCC concluded that the work injury was no longer the MCC of the need for continued treatment and the claim was denied. This marks a tend in rulings by Judge Walker in siding with the treating provider over IME providers in most litigation.


Amie Casey v. FPC Acquisition Inc, d/b/a Sonas Healthcare

JCC Arthur:   Tampa District                                          Order date:   3/5/2024

OJCC Case:   23-012540MAM                                         Date of Accident:    11/16/2022

JCC Order: Click Here

Briefly:  Indemnity

Summary: The claimant was involved in a compensable motor vehicle accident resulting in injury to her neck and low back. The claimant received indemnity benefits from the date of accident through 4/9/2023, when the employer offered her a light duty job working remotely from her home. The claimant accepted the offer, but the employer later ended the remote work. Afterward, the employer offered a series of light duty positions at Sheriffs Ranches Thrift Stores and other non-profit organizations, some of which the claimant declined due to her severe chronic symptoms. The claimant eventually accepted a light duty job offer with a Thrift Store, but was required to do things that were outside of her restrictions and experienced pain in her neck, arms, and legs. The claimant did not return to this position due to the pain. Additionally, between 7/28/2023 and 9/12/2023, the claimant submitted roughly 10 applications for employment, but declined some jobs due to the physical demands. The claimant then was offered another job at a Thrift Store, which she accepted, but again was asked to do things outside of her restrictions, and was later told they had nothing she could do and said there was no reason for her to come back. Her final attempt at light duty ended when she was asked to fill out forms which she felt invaded her privacy. The JCC granted TPD benefits, questioning if any of the light duty jobs offered were suitable because the written description of the job contrasted to what was actually asked of the claimant. The JCC also found that the claimant’s online job search efforts were made in good-faith and exhaustive. Based on the above, the claimant met her burden of proving TPD entitlement during all periods at issue.


Gabriel Gonzalez v. City of Jacksonville Sherrif’s Office

JCC Arthur:   Jacksonville District                                        Order date:   3/6/2024

OJCC Case:   23-022327RJH                                                  Date of Accident:    7/1/2023

JCC Order: Click Here

Briefly:  Heart/Lung

Summary: The claimant met the statutory criteria for a presumption of compensability for complaints related to myocarditis. To rebut the presumption, the E/C sought testimony from Dr. Edward Pereira, which was subject to a Daubert challenge and motion in limine. Dr. Pereria is a cardiologist who was authorized to treat the claimant. Dr. Pereira opined that the claimant’s myocarditis resulted from a non-occupational cause. Dr. Pereira relied on the claimant’s statements to the hospital, that he thought his baby daughter had some viral illness which he may have caught, when formulating his opinion. The Daubert challenge stemmed from this reliance, alleging the opinion lacked an appropriate factual foundation as Dr. Pereira did not know the type of virus the claimant or his daughter had. Additionally, there was no evidence that the claimant or anyone in his family had any infection. Dr. Pereira conceded there are other causes of myocarditis besides viruses, and stated that it is often unknown exactly what causes myocarditis. Dr. Pereira did not perform any tests to determine if the claimant or his daughter had a viral infection, instead he continued to rely on the speculative opinion that his daughter was sick. Ultimately, as Dr. Pereria did not conduct any tests, review any medical records, nor did he test how many people the claimant came in contact with leading up to his date of accident, the JCC found no medical evidence rebutting the presumption of compensability. The JCC granted compensability of the myocarditis and a cardiologist to monitor the claimant.