February Briefly Speaking 2024

Editor: Felicia Wymer, Partner, Pensacola Office

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

Jeanette Duffy v. JetBlue Airways Corporation and Sedgwick, CMS

JCC Jacobs: Orlando District                                     Order Date: 01/26/2023

OJCC Case: 22-006075JEJ                                         Date of Accident: 02/05/2022  

JCC Order: Click Here

Briefly: Arising out of/Course & Scope – Traveling Employee

Summary: The Claimant slipped while in the shower causing injuries to her head, face, and eye. The E/C contended that the accident did not arise out of her employment activities. The Claimant was required to attend a three- or four-week training for the employer. The trainees were housed in a dormitory provided by the employer and the Claimant was in a single room with an attached bathroom. Both parties agreed, and the JCC confirmed, that the Claimant was a traveling employee. The Claimant had no pre-existing or idiopathic conditions. The JCC found that taking a shower and washing one’s hair prior to attending a mandatory meeting as a traveling employee is a normal and necessary activity. The Court also found that the claimant was in a continuous state of “employment” even though the claimant showers and washed her hair outside of work. The court thus granted the Claimant’s request for compensability of the accident.  The court also made note that a traveling employee’s eating, bathing, and laundry are all incidental to the travel required by the employee and injuries resulting from these activities would be compensable under workers’ compensation law.


Lucio Nunez Reyes vs. Hercules Flooring LLC

JCC Arthur:   St. Petersburg District                         Order date:   2/13/2024

OJCC Case:   22-031154JPM                                      Date of Accident:    2/5/2021

JCC Order: Click Here

Briefly:  Motion to Strike IME

Summary: The claimant initially treated with Dr. McClimans, who performed a surgery. Subsequently, the claimant treated with Dr. Donohue after a requested change in doctors. Dr. Donohue did not recommend any future medical treatment, and the claimant was released from care. An issue arose when Dr. Donohue claimed the claimant’s knee conditions were chronic, and the claimant disputed having knee issues prior to the date of accident. Per Fla. Stat 440.13(5)(a) and Cortina v. State of Florida Dept. of HRS, after receiving a diagnosis if the claimant disagrees, a dispute is created, and the claimant may request an IME. Accordingly, the E/C’s Motion to Strike Claimant’s IME was denied.


Orelbys Garcia v. Valls Group, Inc./Summit and RetailFirst Insurance Company

JCC Kerr: Miami District                                          Order date: 02/16/2024

OJCC Case: 23-017963MGK                                      Date of Accident: 08/26/2020

JCC Order: Click Here

Briefly: Statute of Limitations

Summary: The Claimant was injured on 8/26/2020 and the claim was accepted as compensable by the E/C. Continuous medical care was provided until 2/26/2022. No medical treatment was received after that date.  A PFB was filed by the Claimant on 7/24/2023.  E/C denied the requested medical benefits raising the statute of limitations defense. E/C’s only defense at final hearing was the statute of limitations and all other defenses were waived. Claimant asserted the SOL should be tolled for the period during which he received authorized medical treatment, effectively extending the time available for filing a PFB. The JCC accepted this argument, finding that the PFB was timely filed. E/C argued that the First DCA decision, Ortiz v. Winn Dixie, which was relied upon by Claimant, was non-final. This was rejected by the JCC.  The JCC found that the E/C waived the medical necessity defense. The Claimant was entitled to the requested medical benefits and a one-time change in treating physicians.


Julie Lyn Bales vs. DecisionHR, Inc

JCC Arthur:   Tampa District                                    Order date:   2/14/2024

OJCC Case:   23-001423RAA                                     Date of Accident:   12/27/2022

JCC Order: Click Here

Briefly:  Major Contributing Cause, Pre-Existing Injuries, Compensability, Medical Necessity

Summary: The claimant injured her lower back when she was struck by a door. She treated with an Urgent Care prior to being recommended for an orthopedic evaluation. The claimant came under the care of Dr. Victor Hayes, who opined that the claimant did not sustain an injury on the date of her accident. Further, Dr. Jeffrey Kannen opined that the claimant’s complaints, diagnostic findings, and physical exam findings were the same before and after the December 27, 2022 date of accident, specifically in an accident with the same employer a year prior. The E/C did not send a 120-day letter, however they sought to deny further treatment and indemnity benefits as the MCC for both was no longer the previously compensable workplace accident. As the claimant had a reaction to a prior injection, she was at significant risk if additional injections were provided, and the claimant would also need to lose weight, quit smoking, and take other actions to improve overall health before injections recommended by Dr. Hayes were administered. The claimant obtained her IME with Dr. Fabio Fiore who did not recommend epidural injections. Dr. Hayes later retracted his recommendation for injections, and with the claimant’s IME opining that the injections were not necessary, there was no evidence that the injections were medically necessary and were therefore denied.


Oriana Lopez vs. M&M Management Co. DBA World Thrift

JCC Hill:   West Palm Beach District             Order date:   02/26/2024         

OJCC Case:   22-016591KAH                         Date of Accident:   05/23/2022

JCC Order:   Click Here

Briefly:  Voluntary Limitation of Income

Summary:    The Claimant, a Nicaraguan native with limited English proficiency, suffered a right knee injury at work that was deemed compensable. Following the work accident to the knee, the Claimant was accommodated in a light duty position hanging clothes and placing them on racks. The Claimant testified that this made her knee condition worse as she was required to be on her feet all day. The Claimant was not directed for care and stopped coming in on June 4, 2022. On June 9, 2022, she was asked to return to sign a severance agreement, which she refused. The Claimant was finally directed for care on this date as well, and was placed on light duty restrictions by an urgent care provider. In August of 2022, the Claimant relocated to live with a relative due to lack of income. The Claimant sought TPD benefits, which the E/C denied on the basis of voluntary limitation of income by refusing light duty work and voluntarily resigning. There was conflicting testimony as to whether suitable employment was offered to the Claimant on or after June 9, 2022. The employer testified that a letter offering employment was mailed in English. The judge found the Claimant to be a more credible witness based on the “disingenuous” nature of the employer’s testimony and the suspicious nature of the alleged light duty offer letter. Alternatively, the Judge found that the Claimant was justified in refusing any offer in the letter as the letter nor any verbal communication provided what light duty job the Claimant was to perform or how the work would be modified to meet the Claimant’s restrictions. The Claimant was thus found not to abandon her job or voluntarily limit her income and TPD was awarded from the date of first assignment of TPD by an authorized provider.