FL Case Law Summaries – 10/13/15
JCC Orders
Juan Espinosa v. FrankCrum/Broadspire
JCC Medina-Shore; Miami District; Order Date: October 9, 2015
OJCC Case: 15-006791SNS; D/A: 12/12/2012
Briefly: WILLFUL INTENTION TO INJURE ONE’S SELF– JCC Medina-Shore dismissed all Petitions for Benefits with prejudice finding the claimant’s accident’s and injuries are not compensable under Florida Status §440.09(3). The claimant’s injury occurred as the result of the claimant’s own willful actions and did not arise out of and in the course and scope of employment.
Summary: The claimant was employed as a bouncer with the Employer, Booby Trap, an adult entertainment facility. The claimant’s supervisor denied the claimant’s request to work at another establishment and the claimant became frustrated, walked into another room, and punched the wall once and yelled. The claimant injured his hand and underwent an unsuccessful surgery with five pins in his hand.
A witness, “Big E”, testified that the claimant enjoyed showing off his martial arts skills, particularly the 1-2 combo. “Big E” saw the claimant intentionally punch the wall.
JCC Medina-Shire found that case law interpreting §440.09(3) makes it clear that the claimant’s accident and subsequent injury are not a compensable event. The JCC rejected the claimant’s testimony that he threw a shadow punch and was surprised at the close proximity of the wall to his fist.
Michael Scott Berg v. City of St. Petersburg
JCC Rosen; St. Petersburg District; Order Date: October 9, 2015
OJCC Case: 15-008989SLR; D/A: 7/9/2012
Briefly: EXPERT MEDICAL ADVISOR – JCC Rosen appointed an Expert Medical Advisor and found it is immaterial whether the Motion to Appoint an EMA was timely filed or not.
Summary: JCC Rosen found a Judge of Compensation Claims is allowed to appoint an Expert Medical Advisor upon his or her own motion up to the close of the record in any proceeding where the JCC finds a conflict in the opinions of two healthcare providers. While the parties are required to file a timely motion or request for an appointment of an Expert Medical Advisor not less than 15 days notice, the JCC may appoint an EMA if he finds he is in need of an Expert Medical Advisor to aid in resolving the conflicts in opinions of two healthcare providers. In this case, JCC Rosen appointed Dr. Michael Wasylik from the list of medical advisors to render an opinion regarding causation of the claimant’s need for total or partial left knee replacement
Pedro Luiz Diaz v. GARP Construction
JCC Hill; Miami-Dade District; Order Date: October 9, 2015
OJCC Case: 15-003641CMH; D/A: 1/6/2015
Briefly: EMPLOYER/EMPLOYEE RELATIONSHIP – JCC Hill found that the claimant failed to prove he was an Employee of the alleged Employer. The JCC found that the Employer never paid any money to the claimant, that there was an absence of any appointment or contract of hire with the claimant, and that the claimant failed to prove he performed any work or service at the alleged work site.
Summary: The JCC accepted the testimony of the owner and president of the alleged Employer over that of the claimant. The JCC found the claimant’s demeanor was that of confusion and hesitation.
JCC Hill found that the claimant failed to establish any competent substantial or corroborative evidence establishing an employer/employee relationship.
William A. Hernandez v. F.A.U. Police Department/Division of Risk Management
JCC D’Ambrosio; West Palm Beach District; Order Date: October 9, 2015
OJCC Case: 14-015949MAD; D/A: 6/20/2014
Briefly: DAUBERT – JCC D’Ambrosio denied the claimant’s Motion to Strike the opinions of Dr. Rasken and overruled the Daubert objection.
Summary: JCC D’Ambrosio found the Daubert objection was timely raised and sufficient to put Opposing Counsel on notice to address any perceived defect in the expert’s testimony when counsel for the claimant objected to specific questions on causation at the deposition of Dr. Rasken and stated the basis for the objection beyond just stating “Daubert”. The JCC found that the Daubert objection was raised timely by the claimant even though it was not raised in the contents of the Pre-Trial Stipulation. The JCC found that, pursuant to Florida Rule of Civil Procedure 1.330(d)(3)(A), objections to competency of the witness or the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time. The JCC also found no prejudice to the Employer/Carrier regarding the timeliness of the objection.
However, after reviewing the arguments in evidence, and applying the elements of Florida Statute §90.702, the JCC found that the doctor’s testimony was based on sufficient facts or data, was a product of reliable principles and methods, and the doctor had applied the principles and methods reliably to the facts of the case. The JCC noted that a “differential diagnosis” is a standard scientific technique of identifying the cause of the medical problem by eliminating the likely causes until the most probable cause is isolated, and has widespread acceptance in the medical community and provides a valid foundation for an expert opinion.
Franklin Gearhart v. Securitas Security Services, USA/Sedgwick CMS
JCC Holley; Jacksonville District; Order Date: October 9, 2015
OJCC Case: 14-001787WRH; D/A: 4/11/2013
Briefly: EMA CONSTITUTIONALITY – JCC Holley determined various issues in this case and accepted the opinion of the Expert Medical Advisor as presumptively correct. The JCC found there was no clear and convincing evidence in the record to overcome the EMA doctor’s opinion.
Summary: The Claimant raised the issue that the EMA process in and of itself is unconstitutional. The JCC found that he does not have jurisdiction to address the constitutionality of the Statute.
Based upon the accepted opinion of the EMA, the JCC denied the claim for compensability of a right total knee replacement.
Jada Armstrong v. Fort Lauderdale Hospital/Sedgwick CMS
JCC Hogan; Fort Lauderdale District; Order Date: October 9, 2015
OJCC Case: 14-007782GBH; D/A: 12/20/2013
Briefly: PETITION FOR MODIFICATION – Despite new allegations of misrepresentation, JCC Hogan found there is no change in condition or mistake in determination of fact to support modification of the Final Compensation Order previously entered.
Summary: The Employer/Carrier argued that the basis to modify the Final Compensation Order would be that the claimant provided false and misleading information for the purpose of securing Workers’ Compensation benefits. The JCC cited the case of Polston v. Hurricane Island Outward Bound, 920 S.2d. 766 (Florida 1st DCA 2006), and found that the JCC does not have jurisdiction to rule on a misrepresentation defense absent a Petition for Benefits. The JCC noted that there are currently no pending petitions in the instant case and found that she does hot have jurisdiction to determine whether or not the claimant provided false and misleading information for the purposes of securing Workers’ Compensation benefits and, therefore, denied the Petition for Modification.
Robert Berger v. Bru’s Room and Oasis Outsourcing/Sedgwick CMS, ESIS WC Claims
JCC Holley; Jacksonville District; Order Date: October 9, 2015
OJCC Case: 14-001225WRH; D/A: 10/12/2013
Briefly: EMERGENCY MEDICAL CONFERENCE – JCC Holley awarded psychiatric medications at an emergency medical conference prior to an award or acceptance of the underlying injuries as compensable.
Summary: The JCC noted that this finding should not be read as a ruling that the Employer/Carrier is required to provide authorized medical treatment on a continuing basis. The JCC found that the Employer/Carrier’s defenses of major contributing cause and medical necessity are reserved so that they may be re-asserted if necessary.
Nevertheless, the JCC found the claimant underwent a previously ordered psychiatric evaluation with Dr. H. Barry Miller, who recommended prescriptions and now the claimant has now run out of medication and does not have insurance or a job to pay for the medications. The JCC found that the claimant is suffering from various withdrawal symptoms and that the claimant credibly testified as to his symptoms.