FL Case Law Summaries – 10/12/15
1st DCA Appeals
Esad Babahmetovic v. Scan Design Florida, Inc./Zenith Insurance Company
Order Date:
DCA Case: 1D14-2986; D/A: 10/9/2013
Appeal of the order of JCC Lorenzen dated May 1, 2015
Briefly: MAJOR CONTRIBUTING CAUSE; ONE-TIME CHANGE – The 1st DCA granted a Motion for Rehearing and withdrew the earlier opinion of May 1, 2015. The DCA determined a compensable injury existed and reversed the JCC’s denial of the claimant’s one-time change in authorized treating physicians as permitted under Florida Statutes Sec. 440.13(2)(f).
Summary: The 1st DCA held that the JCC was correct in finding that a compensable accident and injury must first exist before an employee is entitled to any benefit allowed in Chapter 440, with one single exception: an advance payment under Section 440.20(12). Here, the DCA held that, because the claimant suffered a compensable injury and received treatment, he is entitled to a one-time change in treating physicians as an absolute right if he made a written request during the course of the treatment.
The DCA held the JCC erred in not recognizing the existence of a compensable injury in this case. The DCA explained that causation in workers’ compensation is established by major contributing cause and major contributing cause is a concept that can potentially apply in two different stages: (1) work must be the major contributing cause of a compensable injury, and (2) where there is a pre-existing condition, the compensable injury must be the major contributing cause of the need for treatment. Once compensability is established, the Employer/Carrier can no longer contest that the accident is not the major contributing cause of the injury at issue, it can only contest the connection between the claimant’s need for specific treatment or benefits, and the industrial accident.
Here, the DCA distinguished between a sprain suffered by the claimant as a result of the work accident, and the degenerative disc disease which pre-existed the work accident. It was not disputed that the sprain met the requirements of compensability in this case. Therefore, the JCC should not have applied the major contributing cause analysis to determine the existence of a compensable injury because there is no evidence or allegation that the sprain was caused by the degenerative disc disease or anything other than work activities.
JCC Orders
Juan Pineda v. Macros Construction Services and RA Custom Installation, Inc.
JCC Medina-Shore; Miami District; Order Date: October 8, 2015
OJCC Case: 13-001967CMH; D/A: 12/12/2012
Briefly: EMPLOYER/EMPLOYEE RELATIONSHIP – JCC Medina-Shore made findings with regard to the employee/employer relationship of various alleged employers. The critical issue was the identity of the Employer.
Summary: The JCC found that RK Custom Installation entered into a contract to perform apartment remodeling services and was paid by the apartment owner. The owner of RK and project manager, Mr. Kusniel, was in charge of labor, not including plumbing or electrical work. Mr. Kusniel contracted with and paid the plumbing and electrical subcontractors. The JCC found Mr. Kusniel acted as a contractor and the work performed by Macros was akin to that of a subcontractor who pulled the permits. The JCC found that RK Custom Installation met the definition of “contractor” under Section 713.01(8) as a person other than a material man or laborer who enters into a contract with an owner of real property for improving it.
Although Mr. Kusniel, denied hiring the claimant in any capacity, the JCC accepted the claimant’s contrary version due to inconsistencies in Mr. Kusniel’s testimony. The JCC, therefore, found that RK Custom Installation was the contractor and employer of the claimant, and that Macros Construction is a subcontractor and not liable pursuant to Florida Statute Sec. 440.10 for injuries.
The JCC further denied RK Custom Instillation’s statute of limitations defense and denied RK’s defense that RK Custom Installation was exempt by law for providing workers’ compensation insurance by virtue of the fact that Mr. Kusniel had exempted himself from workers’ compensation.
Jaime Reyes-Garcia v. P.N. Dunn Construction Company, Southeast Employee Leasing/Lion Insurance Company and Packard Claims Administration
JCC McAliley; Port St. Lucie District; Order Date: October 8, 2015
OJCC Case: 14-014668RDM; D/A: 6/5/2014
Briefly: AVERAGE WEEKLY WAGE-UNDER 22 YEARS OF AGE – JCC McAliley denied the claim for an increase in the average weekly wage of a claimant under the age of 22.
Summary: The JCC noted at issue is Florida Statute Sec. 440.14(1)(e) applicable to claimants under the age of 22 where, under normal conditions, the claimant’s wages should be expected to increase during the period of disability. The JCC found that a reasonable reading of the statute indicates it was not intended to be applied automatically, but only where the facts and circumstances show the employee’s wages were not as great due to the claimant’s minority age. The JCC accepted testimony that the claimant’s wages were never adjusted downwards due to his age, but instead were commensurate with any worker performing similar tasks regardless of age.
Nataniel Andrade v. CoAdvantage Resources, Inc./AmTrust North America of Florida
JCC Weiss; Ft. Myers District; Order Date: October 8, 2015
OJCC Case: 15-005125JAW; D/A: 6/3/2012
Briefly: STATUTE OF LIMITATIONS – JCC Weiss dismissed the Petition for Benefits on the grounds that the statute of limitations has run on the claim.
Summary: The JCC found the Employer/Carrier properly raised the statute of limitations defense in its initial response to the Petition for Benefits and that the carrier mailed the statute of limitations disclosure information to the claimant’s correct address. The JCC found that once it is established that the required notice was mailed to the claimant at his correct address, the “mailbox rule” applies and creates a presumption that claimant received the mailings. The JCC rejected the claimant’s testimony that he did not receive any mail from the carrier as not supported by the preponderance of evidence. The JCC rejected the claimant’s argument that the Employer/Carrier is estopped from relying on the statute of limitations to deny benefits because the Employer/Carrier never advised him, either in writing or verbally, about the statute of limitations pursuant to Florida Statutes Sec. 440.185.
The JCC found that the claimant last received authorized care on June 20, 2012, and that the first Petition for Benefits was received on March 12, 2015.
Edinson Ramirez v. Tires Center, LLC/Liberty Mutual Insurance Group
JCC Forte; Ft. Lauderdale District; Order Date: October 8, 2015
OJCC Case: 08-025325IF; D/A: 1/3/2008 and 3/6/2008
Briefly: ATTORNEY’S FEES – JCC Forte accepted the allegations contained in the Verified Petition for Attorney’s Fees as true and ordered the Employer/Carrier to pay the claimant’s attorney a fee in the amount of $72,237.50, and noted the Employer/Carrier failed to file a Response to the Verified Petition.
Summary: The JCC noted that claimant’s counsel was successful in the award of temporary partial disability benefits, authorization of medical treatment, and payment of indemnity at the mediation that took place in 2011 when the Employer/Carrier resolved prior issues, but did not stipulate to fee entitlement.
Claimant’s counsel claimed an hourly rate of $350. Claimant’s counsel argued that, since no Response was filed to the Verified Petition and no good cause shown by the Employer/Carrier, the allegations contained in the Verified Petition should be accepted as true. The JCC found no persuasive evidence was presented by the Employer/Carrier to challenge the reasonableness of the claimant’s counsel’s hours, hourly rate, or costs. Counsel for the Employer/Carrier admitted he had no explanation or reason that would amount to a sufficient legal excuse for failing to respond to the Verified Petition as required by Rule 60Q-6.124(3)(b).
Counsel for the Employer/Carrier argued that the Verified Petition for Attorney’s Fees was deficient in that it did not set forth the value of benefits secured reduced to present value as required by the Rule. The JCC rejected this argument and found that the alleged deficiency in the Verified Petition did not invalidate the Verified Petition under these circumstances. The JCC pointed out that the Employer/Carrier could have brought this deficiency to the claimant’s counsel’s attention through a timely Motion to Strike or by Response to the Motion provided by the rules that likewise requires a recitation of all matters which are disputed.
Michael Scott Berg v. City of St. Petersburg
JCC Rosen; St. Petersburg District; Order Date: October 8, 2015
OJCC Case: 15-008989SLR; D/A: 7/9/2012
Briefly: DAUBERT – JCC Rosen denied the Daubert objection on procedural grounds and allowed the opinions of Dr. Piazza in evidence.
Summary: The claimant had an independent medical examination with Dr. Piazza, an orthopedic surgeon. The Employer/Carrier raised a Daubert objection during the deposition of the doctor. However, the Employer/Carrier did not file an appropriate Motion to Strike or Motion in Limine prior to the hearing, but, instead, made an oral motion just prior to the Daubert proceeding. The JCC found that the Daubert objection was not procedurally proper and denied the objection.
Willie Watson v. Rooms To Go Furniture Corp./Broadspire
JCC Sojourner; Lakeland District; Order Date: October 8, 2015
OJCC Case: 10-023401MES; D/A: 4/1/2010
Briefly: TRANSPORTATION – JCC Sojourner denied the claim for authorization for transportation on the grounds the claim was without evidentiary support.
Summary: The claimant argued that the test for providing transportation is not “medical necessity”, but is the “reasonableness” of the request. The claimant also argued that his Mustang was not reliable. However, the JCC pointed out that the claimant did not say why he could not drive his Ford F-150 truck and did not say whether it had an automatic or manual transmission. Also, the claimant did not indicate that he could not afford to have his Mustang repaired, but did testify that both he and his wife were employed.
The JCC found that the claimant did not establish that he was entitled to Employer/Carrier-provided transportation. The claimant did not establish any medical condition that prevents him from driving and did not establish that he did not have a mode of transportation.
Harold W. Jones v. Old Dominion Freight Line, Inc./Gallagher Bassett Services, Inc.
JCC Dietz; Sebastian-Melbourne District; Order Date: October 8, 2015
OJCC Case: 13-017765RLD; D/A: 5/1/2013
Briefly: ADVANCE – JCC Dietz granted claimant’s Motion for Advance of $7,500 and denied the Employer/Carrier’s defense that the claimant’s voluntary limitation of income should prevent the claimant from being eligible for an advance.
Summary: The Employer/Carrier argued that the claimant’s voluntary limitation of income should prevent him from receiving an advance. As evidence of voluntary limitation of income, the Employer/Carrier submitted copies of letters from ReEmployAbility to the claimant that contained job leads that ReEmployAbility believed were within the claimant’s restrictions. The JCC found there was no evidence that these jobs were available in the claimant’s established period of need for the advance.
The Employer/Carrier also argued that they would be prejudiced by an advance of $7,500, because they would not be able to recoup the advance from future indemnity benefits. The JCC found that there was no evidence the Employer/Carrier would not be able to recoup the advance from impairment benefits that may be due if the claimant is assigned a permanent impairment rating, or benefits he may receive in settlement. The JCC found that guaranteed recoupment of the advance is not determinative of prejudice to the Employer/Carrier.