FL Case Law Summaries – 10/1/15
JCC Orders
David G. Rhett v. Largo Medical Center/Broadspire
JCC Rosen; St. Petersburg District; Order Date: September 29, 2015; OJCC Case: 15-012440SLR; D/A: 10/25/2014; Claimant’s Counsel: T. Lee Bodie; Employer/Carrier Counsel: David C. Lockwood
Briefly: EXPERT MEDICAL ADVISOR – JCC Rosen appointed Dr. G. E. Vega as an Expert Medical Advisor based upon a conflict in the expert testimony of Dr. Pagano and Drs. Piazza and Albert.
Summary: The JCC found there is a true conflict in the medical opinions in regard to diagnosis, causal relationship and recommended course of treatment of the claimant’s lumbar spine. Dr. Piazza and Dr. Pagano are diametrically opposed regarding the need for surgery and causation. The JCC also noted that, because of the professional business relationships between the physicians whose opinions are in conflict and available independent medical examiners regarding the spine, the parties were consulted in depth and advised of any potential conflicts in opinions on the appointment of an Expert Medical Advisor before the actual EMA was appointed by the JCC.
Richard Thompson v. Screen Graphics of Florida, Inc./Liberty Mutual Insurance
JCC Forte; Ft. Lauderdale District; Order Date: September 29, 2015; OJCC Case: 15-018359IF; D/A: 07/29/2015; Claimant’s Counsel: Paul R. Buechele; Employer/Carrier Counsel: James Favero
Briefly: ADVANCE – JCC Forte granted a Motion for Advance in the amount of $717.21, notwithstanding the judge’s finding that the claimant’s testimony was inconsistent and not credible with regard to his financial situation.
Summary: The JCC found that the amount of $717.21 will make the claimant whole. Although the claimant initially requested $2,000.00, due to various inconsistencies in the testimony and the fact that the claimant is still due over $1,900.00 from the Employer/Carrier that is to be paid, if not already, immediately, the amount of the advance should be reduced.
Monika Karasz v. Lavie Care Centers d/b/a/ Englewood Health Care and Rehabilitation Center/Gallagher Bassett Services, Inc.
JCC Beck; Sarasota District; Order Date: September 29, 2015; OJCC Case: 13-020882DBB; D/A: 08/18/2013; Claimant’s Counsel: Susan W. Fox; Employer/Carrier Counsel: James M. Hess
Briefly: APPELLATE ATTORNEY FEE – JCC Beck awarded an appellate attorney’s fee in the amount of $12,547.50, based upon 40.1 hours of work at $300 per hour plus an additional 2.3 hours at $225 per hour.
Summary: When evaluating the number of hours spent on this case, the JCC noted that the issues presented were not particularly complex or difficult, and the skill needed to perform the legal service would be ordinary. Claimant’s counsel argued that the hourly rate customarily charged ranges between $300-450 per hour and the Employer/Carrier contended that $225 per hour would be the appropriate hourly rate. The JCC awarded an hourly rate of $300 per hour for appellate time.
Although claimant’s appellate counsel listed 50.3 hours related to appellate work, the Employer/Carrier argued that the claimant’s time entries were too non-specific to challenge as there were blocks of time where several events were listed and that certain time entries appear excessive. The JCC agreed with the Employer/Carrier that some of the entries appear excessive for the nature of the task.
Maxon Armand v. Grande Affaires/Hartford Accident Indemnity Company
JCC Kerr; Miami District; Order Date: September 29, 2015; OJCC Case: 01-006657MGK; D/A: 05/11/2001; Claimant’s Counsel: Robert Krebs; Employer/Carrier Counsel: Kurt Wirsing
Briefly: EXPERT MEDICAL ADVISOR – JCC Kerr denied the claimant’s Motion to Appoint Psychiatric Expert Medical Advisor on the grounds that there is no disagreement between the providers as to whether there is a need for psychiatric intervention related to the industrial accident.
Summary: The Claimant alleged a conflict in medical opinions concerning the existence of a psychiatric condition. However, the JCC found that there was no medical disagreement; both Drs. Ross and Miller stated no psychiatric intervention is required for the 2001 industrial accident. A prior order from a previous JCC found there was no medical evidence to substantiate the need for psychiatric care and that Dr. Ross, Board Certified Neurologist, was unable to relate any current psychiatric need to the industrial accident.
Although the claimant argued that Dr. Ross consistently noted an adjustment disorder since the inception of his treatment and that Dr. Ross had prescribed anti-depressants, the JCC found there was no disagreement between the providers as to whether there is a need for psychiatric treatment related to the 2001 industrial accident.
Kaonis Green, Sr. v. Southern Wine and Spirits/Sedgwick CMS
JCC Sojourner; Lakeland District; Order Date: September 29, 2015; OJCC Case: 14-021830MES; D/A: 07/21/2014; Claimant’s Counsel: Laurie Thrower Miles; Employer/Carrier Counsel: Jill Foreman
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Sojourner awarded temporary partial disability benefits on the grounds that the Claimant unsuccessfully attempted to perform the light duty work offered by the Employer.
Summary: The claimant saw a neurosurgeon, Dr. Amann, who testified that, if the claimant’s symptoms persisted during the period of time at issue, he would not have released the claimant to full duty work. The claimant testified that he attempted to do the work offered by the Employer/Carrier, but experienced pain and tried to see a physician, but could not attend the appointment due to transportation issues outside the claimant’s control. The Employer/Carrier continued to offer light duty work and the claimant again returned to work until his restrictions were increased and the Employer was unable to accommodate them. When awarding TPD, the JCC relied on the decisions of Allen McLeod Funeral Home v. Cooksey, 527 So.2d 253 (Fla 1st DCA 1988) and Pic N Save v. Edens, 653 So. 2d 1132 (Fla 1st DCA 1995).
Claudia Giraldo v. Ryvor Group, LLC/Creative Risk Solutions
JCC Beck; Sarasota District; Order Date: September 29, 2015; OJCC Case: 14-018420DBB & 15-009634DBB; D/A: 06/17/2014 & 04/04/2015; Claimant’s Counsel: Rosemary B. Eure; Employer/Carrier Counsel: Allen D. Kalinoski
Briefly: DISCOVERY SANCTIONS – Judge Beck denied the Employer/Carrier’s Motion to Dismiss without prejudice in order to fashion additional sanctions at trial regarding witnesses’ testimony and documentary evidence admissibility and to relieve any demonstrated prejudice due to the Claimant’s refusal to answer certain deposition questions.
Summary: At her deposition, the claimant invoked her 5th Amendment privilege, failed to verify whether she used one or more fraudulent Social Security Numbers to obtain workers’ compensation benefits, and failed to produce any identification to verify her identity. Additionally, the claimant followed her counsel’s instruction not to answer questions which were reasonably calculated to lead to discoverable evidence.
The claimant argued that she is under no obligation to provide information regarding her employment or legal status in order to be eligible for workers’ compensation benefits and that the Employer is precluded from asserting the status of an illegal alien as a defensive matter.
The JCC found that the claimant appropriately asserted her 5th Amendment privilege and that the Employer/Carrier is not entirely thwarted in its ability to defend this case. The JCC found that there are other ways to prove whether the claimant used an incorrect SSN in obtaining employment or in support of her claims for benefits other than the claimant’s own testimony. The Employer/Carrier failed to show how any failure of the claimant to answer would affect its causation defenses, which usually require medical testimony only. As such, the JCC found it is premature to fashion an appropriate remedy for any prejudice the Employer/Carrier may suffer at trial.
Alan Eadie v. Citrus County Sheriff’s Office/North American Risk Services
JCC Lorenzen; Tampa District; Order Date: September 29, 2015; OJCC Case: 15-011683EHL; D/A: 04/14/2014; Claimant’s Counsel: Craig O. Stewart; Employer/Carrier Counsel: Rex A. Hurley
Briefly: ADVANCE – JCC Lorenzen awarded a $2,000 advance and found that the Employer/Carrier offered no particular defense to the advance other than to say there was no nexus between the accident and the claimant’s need for funds and no showing claimant required $2,000, as opposed to some other amount.
Summary: The JCC noted that the Employer may have terminated the claimant for reasons unrelated to the accident, but there was no evidence that the Employer would have offered return work once the claimant was placed at maximum medical improvement. Thus, the JCC held there was a nexus between the accident and loss of income.
Based upon the claimant’s monthly expenses, it was also clear the claimant required more than $2,000 just to pay rent and child support.
David Pardieu v. Southeast Personnel Leasing, Inc./Packard Claims Administration
JCC Hill; Miami District; Order Date: September 29, 2015; OJCC Case: 15-014598CMH; D/A: 06/04/2015; Claimant’s Counsel: Paul Buechele; Employer/Carrier Counsel: Vanessa J. Johnson
Briefly: ADVANCE – JCC Hill granted, in part, the claimant’s Motion for Advance in the amount of $992.00, and noted no documentation was presented to objectively establish overdue bills. However, the JCC found that there were credible references made by the claimant to child support arrearages.
Summary: The JCC found that the alleged industrial accident contributed to the interruption of earnings and that the claimant demonstrated a nexus between the industrial injury and an interruption of earnings and his current need for funds. Thus, the JCC found the claimant satisfied Florida Statutes Sec. 440.20(12)(c).
The JCC rejected the Employer/Carrier’s argument that jurisdiction is questionable as the claimant is not a proper party to bring an action for advance. The Employer/Carrier unsuccessfully argued that the entire claim was denied based upon untimely reporting of the accident, that an accident did not arise out of the course and scope of employment, and that there is no pending claim for indemnity benefits.
Philio Lazarre v. Crothall Laundry Service/Gallagher Bassett Services, Inc.
JCC Sojourner; Lakeland District; Order Date: September 29, 2015; OJCC Case: 13-009018MES; D/A: 12/15/2011; Claimant’s Counsel: Bradley G. Smith; Employer/Carrier Counsel: Juan Carlos Garcia
Briefly: PREVAILING PARTY COSTS – JCC Sojourner ordered prevailing costs to be paid by the claimant to the Employer/Carrier in the amount of $2,935.21, based on the Employer/Carrier prevailing on an indemnity issue.
Summary: In awarding prevailing costs to the Employer/Carrier, the JCC found that the cost of an interpreter to be reasonable and taxable, along with the cost of the depositions of the claimant, deposition transcripts, and subpoenas served on the claimant for these depositions. The JCC also found that the Employer/Carrier is entitled to recover costs for the investigator’s court appearance and noted that counsel for the claimant did not agree to admit the surveillance into evidence until the time of the final hearing.
The JCC did not award certain costs such as travel or medical records related to the apportionment defense as non-taxable.
Eduardo Campos v. Transport Leasing/Contract, Inc./ Florida Beauty Express, Inc.
JCC Kerr; Miami District; Order Date: September 29, 2015; OJCC Case: 14-008640MGK; D/A: 09/29/2013; Claimant’s Counsel: Michael Goldstein; Employer/Carrier Counsel: Grant Lanford
Briefly: DENTURES – JCC Medina-Shore denied the claim for authorization to repair/replace claimant’s broken denture and found that there was no evidence to support damage to the claimant’s partial dentures due to the industrial accident other than the temporal relationship argued by the claimant.
Summary: The JCC noted that the claimant treated with numerous physicians in excess of one year and that his deposition was taken in which he made no mention of damage to his dentures. Although the claimant suffered serious injuries in the industrial accident, the JCC found it unbelievable that the claimant would wait and go without partial dentures for more than one year. The JCC found the claimant simply failed to satisfy the burden of proof.
The claimant testified that he had partial dentures prior to the industrial accident but on the date of the surgery, his partial dentures were removed and placed in a plastic container. Approximately one month after the surgery, the claimant placed the dentures in his mouth and stated “they did not fit right [sic].” Ultimately, the claimant’s dentures broke and the claimant attempted to glue the dentures without success.
Carlos Gonzalez v. Broward Sheriff’s Office/Gallagher Bassett Services, Inc.
JCC Lewis; Ft. Lauderdale District; Order Date: September 29, 2015; OJCC Case: 14-025646DAL; D/A: 11/24/2012; Claimant’s Counsel: Tonya Oliver; Employer/Carrier Counsel: Robert Rodriguez
Briefly: PRESUMPTION UNDER F.S. 112.18 – JCC Lewis denied the Employer/Carrier’s Motion for Re-Hearing and noted that the Employer/Carrier challenged all of the legal conclusions previously set forth by the JCC regarding Sec. 112.18 Florida Statutes.
Summary: The JCC rejected the Employer/Carrier’s argument that under Florida Statutes Sec. 112.18(1)(b), the reverse presumption applies where an “authorized physician” determines the claimant departed in a material fashion from the prescribed course of treatment. Instead, the JCC found that the statute does not provide that the material departure must be from the prescribed course of treatment of an “authorized treating physician”, but that the statute applies to a law enforcement officer who departs in material fashion from the prescribed course of treatment from his or her “personal physician”.
The JCC rejected the Employer/Carrier’s argument that the claimant did not suffer from a covered condition under Sec. 112.18 Florida Statutes. The JCC noted that the medical opinion testimony of Dr. Borzak was accepted finding that the claimant has essential primary hypertension.
The JCC also rejected the Employer/Carrier’s contention that it rebutted the statutory presumption because the claimant suffered a similar episode of hypertensive headaches which pre-existed the industrial accident. The JCC noted no medical evidence was adduced that the claimant’s prior episode or incident caused the claimant’s hypertension. Instead, the evidence presented addressed the issue of whether the claimant’s use of medically prescribed testosterone was a non-industrial cause of his hypertension condition.
The JCC also rejected the carrier’s assertion that the claimant’s hypertension did not result in total or partial disability. The JCC noted that claimant was hospitalized and incapable of performing his duties as a law enforcement officer following the hypertensive episode.