FL Case Law Summaries – 10/10/16
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JCC ORDERS
Tracy Morgan v. Merchant’s Group, Inc.
JCC Spangler; Tampa District; Order Date: September 28, 2016
OJCC Case: 15-026323EDS; D/A: 7/31/2015
Claimant’s Counsel: Jason Kobal
Employer’s Counsel: Steven Hovsepian
Briefly: REPETITIVE TRAUMA – JCC Spangler denied the claim for compensability of injuries allegedly sustained by repetitive trauma to both hands and wrists.
Summary: The JCC found the claimant failed to submit clear and convincing evidence to support her claim that she sustained injuries to both hands and wrists as a result of repetitive trauma at work. The JCC emphasized that no physician or medical record in evidence directly implied that the claimant’s repetitive work activities while working for the Employer, whatever they may have been, contributed to the physical condition of her hands.
The JCC found the claimant’s testimony was imprecise, inconsistent and lacked detail. The JCC found the claimant failed to mention the facts of the alleged incident to her physician when she was preparing to undergo surgery, and she did not specify what activities she performed after her return to work that could be considered sufficiently repetitive or difficult so as to aggravate an underlying, preexisting condition in her hands as claimed.
The JCC noted the elements of a claim for repetitive trauma are:
- Exposure;
- The cumulative effect of which the injury or aggravation of a preexisting condition;
- Exposure to a hazard greater than that to which the general public is exposed;
or
- A demonstration of a series of occurrences the cumulative effect of which is injury.
The JCC also noted there is conflicting testimony which suggested a non-work related scooter accident caused the injuries.
Donald E. Smith v. City of Jacksonville/City of Jacksonville Risk Management
JCC Holley; Jacksonville District; Order Date: September 28, 2016
OJCC Case: 16-001946WRH; D/A: 10/20/2007
Claimant’s Counsel: Amie DeGuzman & John Rahaim
Employer/Carrier’s Counsel: Michael Arington & Alex Makofka
Briefly: STATUTE OF LIMITATIONS – JCC Holley denied the claim for compensability and found the statute of limitations applied and the Employer/Carrier was not estopped from asserting a statute of limitations defense.
Summary: The JCC explained the Employer/Carrier has the initial burden of establishing a statute of limitations defense. In this case, the First Report of Injury signed by the claimant was filed on October 24, 2007. On October 29, 2007, the Employer/Carrier sent the claimant a 120-day pay and investigate letter and provided medical treatment. On February 6, 2008, the Employer/Carrier filed a Notice of Denial, and it was not until January 26, 2016, the claimant, via his attorney, filed a Petition for Benefits. The JCC found the Employer/Carrier met its burden of showing the statute of limitations applied.
The claimant contended the Employer/Carrier should be estopped from asserting the statute of limitations defense as the adjuster misrepresented the pay and investigate period due to lack of action or conduct, which conveyed a misleading impression. The JCC rejected the claimant’s position and found the 120-day pay and investigate letter was issued within the appropriate timeframe, there was no misrepresentation that the claimant relied upon to his detriment, and that the contents of the Notice of Denial were not inaccurate statements or misrepresentations. The JCC found the Employer/Carrier’s investigation was sufficient to determine whether the legal presumption under F.S. §112.18 was applicable based upon the adjuster’s belief that the disability element had not been satisfied.
David Koch v. Pat Salmon & Sons, Inc./Alternative Service Concepts
JCC Humphries; Jacksonville District; Order Date: September 28, 2016
OJCC Case: 16-003630RJH; D/A: 10/27/2012
Claimant’s Counsel: Monte Shoemaker
Employer/Carrier’s Counsel: David Drill
Briefly: PTD BENEFITS – The Claimant sought PTD benefits based solely upon the orthopedic spine surgeon’s MMI opinion and functional limitations. JCC Humphries denied the claim for PTD as premature and found the claimant’s other compensable conditions, for which he is not yet at MMI, are significant factors in his overall disability presentation.
Summary: The JCC noted the claimant’s compensable injuries include cervical spine, left shoulder, and headaches, but that the claim for PTD was based on the neck condition alone.
The JCC noted the claimant has been under the care of Dr. Hurford for the compensable cervical injury and Dr. Deshmukh for the compensable left shoulder and upper extremity injuries. The JCC explained the claimant is not at overall MMI in that Dr. Deshmukh rescinded his opinion that the claimant reached MMI for the upper extremities and prescribed additional medication and treatment. The JCC also noted that Dr. Boehme, a neurologist, did not indicate the claimant reached MMI from a neurological perspective.
Further, the JCC found he was unable to determine if the claimant did, in fact, reach MMI for the cervical condition. The JCC explained there was no record evidence of whether Dr. Hurford’s referral to an interdisciplinary rehabilitation program made in the same DWC-25 at the time he placed the claimant at MMI was for remedial or palliative care.
The claimant’s vocational expert, John Roberts, testified the claimant could not secure employment within a fifty-mile radius based solely on the restrictions imposed by Dr. Hurford for the cervical condition. However, the JCC rejected this opinion and noted Mr. Roberts relied at least in part on the claimant’s extreme sensitivity to light as well as additional physical limitations related to his shoulder.
As a result, the JCC found the claimant failed to establish he is at overall MMI and failed to establish he is at MMI for the cervical condition alone and, therefore, his claim for permanent total disability must be denied as premature.
Javier DeLarosa v. Miami Dade Corrections and Rehabilitation/Miami Dade County Risk Management
JCC Rosen; Miami District; Order Date: September 28, 2016
OJCC Case: 15-029247GCC; D/A: 11/23/2015
Claimant’s Counsel: Jason L. Fox
Employer/Carrier’s Counsel: Stacy R. Laskin
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Rosen denied the claim for compensability of claimant’s hypertension and found the claimant did not suffer a disability as a result of the hypertension condition.
Summary: JCC Rosen explained that in order for F.S. §112.18 to apply, the claimant must satisfy four elements:
- The claimant is a member of a protected class;
- The claimant developed a protected condition;
- The claimant underwent a pre-employment physical that failed to reveal evidence of a protected condition; and
- The protected condition resulted in an incapacitation to perform work duties.
In this case, the JCC found the presumption did not apply as the claimant did not show he was taken out of work for any period of time due to the hypertension condition.
The JCC noted the claimant was vague and unclear as to whether or not he actually missed any shifts from work. The evidence showed that the claimant on his own and without medical advice, left work, took medication, and went to bed.
Ysidro Guerrero v. Certified Foundations, Inc./Bridgefield Employers Insurance Company
JCC Sojourner; Lakeland District; Order Date: September 29, 2016
OJCC Case: 12-020700MES; D/A: 2/9/2012
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Bruno DeZayas
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Sojourner accepted the opinion of the EMA physician, Dr. Murrah, and found the claimant’s need for bilateral knee replacements is not causally related to the compensable injury.
Summary: The JCC denied the claim for knee surgery and found the claimant did not offer clear and convincing evidence to rebut the opinion of the Expert Medical Advisor. The JCC noted that objective medical findings and testing support the presence of significant degenerative changes in the claimant’s knee prior to the compensable injury and that Dr. Murrah, the EMA, testified that surgery would not be appropriate given the severe degeneration of the claimant’s knee.
The JCC explained there was a transient exacerbation of the right knee condition caused by the work injury which resulted in a 0% permanent impairment rating and that the claimant’s need for bilateral knee replacements is not causally related to the compensable injury.
Reinaldo Molina v. Ryder/Old Republic Insurance Company
JCC Kerr; Miami District; Order Date: September 29, 2016
OJCC Case: 13-017976MGK; D/A: 9/30/2008
Claimant’s Counsel: Kevin Gallagher
Employer/Carrier’s Counsel: Robert Strunin
Briefly: ATTORNEY’S FEES – JCC Kerr awarded $26,625.50 in attorney’s fees based 86.4 hours of attorney time spent securing temporary partial disability benefits in the amount of $3,107.72.
Summary: The JCC found of $275-325 to be most reflective of the current rates in the community and awarded an hourly rate of $325 for Attorneys Gallagher and Germano, $300 per hour for Attorney Moreno, and $275 for Attorney Vasquez. The JCC noted the statutory fee would result in an unreasonable hourly rate of $5.00 per hour.
Cipriano Bustamante (Tapia) v. Six L’s Packing Company, Inc./Travelers Insurance Company, Charter Oak Fire Insurance Company
JCC Lazzara; Ft. Myers District; Order Date: September 29, 2016
OJCC Case: 11-027164JJL; D/A: 4/16/2011
Former Claimant’s Counsel: Travis J. McConnell
Claimant’s Current Counsel: Olimpia Boveda de Pena
Employer/Carrier’s Counsel: Trent D. Miller
Briefly: ATTORNEY FEE LIENS – JCC Lazzara denied the Motion to Determine Attorney’s Fee Lien either on a quantum meruit basis, or pursuant to F.S. §440.34(1), and found Mr. McConnell did not secure or obtain any benefits for the claimant as a result of his legal intervention and did not even offer legal advice as the claimant and Mr. McConnell never met until the day of hearing.
Summary: The JCC accepted the claimant’s testimony as credible and at no time did he intend to pursue any actions or claims against the Employer for whom he had worked many years. The JCC noted the claimant has no schooling and can only write his name. The JCC found the claimant would not have understood the documents he was signing and was quite adamant and emotional that he did not wish to take any action against his Employer for his injuries. Mr. McConnell did not dispute he had never met or spoken to the claimant, telephonically or by other means of communication, until the day of the subject hearing.
The JCC found there was no attorney-client relationship ever established by the claimant and Mr. McConnell. Even if there was an attorney-client relationship, the JCC also found that at no time did the claimant knowingly intend to take any action against the Employer. The JCC found Mr. McConnell filed a Petition for Benefits without the claimant’s knowledge or permission and that no benefits were secured that were otherwise being voluntarily provided by the carrier.