FL Case Law Summaries – 10/15/15
JCC Orders
Edward Suhling v. Silverline Plastics/Travelers Insurance Company
JCC McAliley; Port St. Lucie District; Order Date: October 13, 2015
OJCC Case: 14-012110RDM; D/A: 4/23/2014
Claimant’s Counsel: Michael J. Celeste
Carrier’s Counsel: Thomas H. McDonald
Briefly: MOTION FOR FINAL SUMMARY ORDER – JCC McAliley denied the Motion for Summary Order without prejudice for the claimant to set an evidentiary hearing on the limited issue of the Employer/Carrier’s responsibility to provide a medical evaluation with a neurosurgeon.
Summary: The JCC found that an evidentiary hearing is necessary as the claimant asserted in the motion the treating physician will no longer see the claimant at all. Although the Employer/Carrier did not file a response to the Motion for Summary Final Order, the JCC found the claimant provided insufficient evidence to support any determination by the JCC on the matter.
The JCC found that a mere assertion in the claimant’s motion is insufficient to establish as a matter of fact the authorized neurosurgeon will not see the claimant in an office relatively near claimant’s home, or will not see the claimant at all.
York Valdes v. Jetro Holdings, LLC/Charter Oak Fire Insurance Company
JCC Massey; Tampa District; Order Date: October 13, 2015
OJCC Case: 15-005635MAM; D/A: 1/31/2015
Claimant’s Counsel: Michael D. Goldstein
Carrier’s Counsel: Patricia E. Perez
Briefly: NOTICE OF INJURY; TPD– JCC Massey found the claimant timely reported his elbow injury and granted the claims for compensability of the claimant’s left elbow injury and temporary partial disability benefits.
Summary: The claimant testified that he reported his elbow injury to his supervisor immediately following the accident. The JCC found that this testimony was uncontroverted. The JCC found that the claimant’s IME physician based his opinions on the claimant’s history which was accepted by the JCC as consistent with logic and reason.
Temporary partial disability benefits were awarded based upon light duty work restrictions assigned to the claimant by both Concentra and Baptist Hospital. The JCC found the claimant carried his burden of proving a prima facie case for entitlement of temporary partial disability benefits and that the Employer/Carrier failed to prove one or more affirmative defenses.
Michele Cole v. Leesburg Regional Medical Center/North American Risk Services
JCC Pitts; Orlando District; Order Date: October 13, 2015
OJCC Case: 02-008076NPP; D/A: 4/15/2000
Claimant’s Counsel: Daniel L. Hightower
Carrier’s Counsel: Robert B. Griffis
Briefly: ATTORNEY’S FEES – JCC Pitts reviewed the claim for attorney’s fees based on various grounds and granted and denied certain fee requests. The JCC determined an appropriate hourly rate for claimant’s counsel in this case to be $300 per hour.
Summary: The JCC found that the claim for a guideline attorney’s fee based upon benefits secured over a five year period was not established by the claimant. The JCC found the claimant did not meet the burden of proof to establish the amount of the reasonably predictable benefits secured as a result of the intervention of the attorney measured over a five year period.
However, the JCC did find that claimant’s counsel secured medical benefits and, accordingly, a reasonable hourly rate was awarded, which included $300 per hour for attorney time and $65 per hour for paralegal time.
Erin McCann v. Panera, LLC/Charter Oak Fire Insurance Company
JCC Lazzara; Tallahassee District; Order Date: October 13, 2015
OJCC Case: 15-006174JJL; D/A: 10/1/2013
Claimant’s Counsel: Michael W. Brown
Carrier’s Counsel: Patricia E. Perez
Briefly: ADVANCE – JCC Lazzara denied the claimant’s Motion for Advance and found that the claimant failed to provide adequate justification for her request. The JCC found that advances are not “automatic” simply because the injured worker meets the criteria in Sec. 440.20(12)(c)(2).
Summary: JCC Lazzara explained that in determining whether an advance is awardable, the JCC must determine whether the claimant falls into one of three specified statutory criteria: (1) claimants who have not “returned to the same or equivalent employment with no substantial reduction in wages”; (2) claimants who have “suffered a substantial loss of earning capacity”; or (3) claimants who have suffered a “physical impairment”.
The JCC found there was no evidence of any nexus to the medical and related financial needs arising from the claimant’s work place injuries and noted that, since an injured worker will always receive less than pre-injury dollars following the work place injury, that fact alone is insufficient to trigger an advance.
Edgardo Rodriguez v. Pioneer Roofing Company, Inc./Summit Claims Management
JCC Lewis; Fort Lauderdale District; Order Date: October 13, 2015
OJCC Case: 12-009091DAL; D/A: 3/21/2012
Claimant’s Counsel: Kevin Gallagher
Carrier’s Counsel: Stephanie Robinson
Briefly: EMERGENCY MOTION FOR MEDICAL TREATMENT – JCC Lewis denied claimant’s emergency motion for treatment without prejudice and found there was no evidence that an emergency or exigent situation exists.
Summary: The JCC noted that F.S. 440.25(4)(f) authorizes the JCC to require the appearance of the parties and counsel before him or her where there is a bona fide emergency involving the health, safety or welfare of an injured employer. Rule 60Q-1.117 provides that a request for emergency conference shall set forth in detail the facts giving rise to the request, its legal basis, and the factual medical basis for the claim that there is a bona fide emergency involving the health, safety or welfare of an employee and the specific relief sought. Any documents relied upon should be specifically referenced and attached to the written request.
In this case, no evidence was presented to support a finding of an emergency situation exists despite testimony from the claimant that he has been diagnosed with a traumatic brain injury due to a compensable workers’ compensation accident and that he is currently under the care of physicians who have been authorized by the Employer/Carrier. The documentary evidence included the claimant’s Emergency Motion for Medical Treatment as well as an email from counsel for the Employer/Carrier to claimant’s counsel.
Ralph Lopez v. Avis Budget Group, Inc./CNA Insurance
JCC Lorenzen; Tampa District; Order Date: October 13, 2015
OJCC Case: 14-004751EHL & 14-004760EHL; D/A: 5/15/2013
Claimant’s Counsel: L. Gray Sanders
Carrier’s Counsel: Morgan Indek
Briefly: PREVAILING PARTY COSTS-EMA – JCC Lorenzen awarded the Employer/Carrier prevailing party costs to include the cost of the Expert Medical Advisor examination.
Summary: The JCC found the Employer/Carrier was the prevailing party and made determinations regarding various disputed costs.
The JCC rejected the claimant’s argument that Florida Statutes 440.13(9)(f) provides only for recoupment of EMA costs to the claimant. Instead, the JCC concluded that this statute contemplates a situation where the claimant first paid for the EMA examination.
In this case, the Employer/Carrier paid for the EMA. The JCC found that F.S. 440.34(3) does not limit the recoupment of costs associated with an Expert Medical Advisor to injured employees only.
Christina Gonzalez v. Ross Stores, Inc./Arch Insurance Company
JCC McAliley; Port St. Lucie District; Order Date: October 13, 2015
OJCC Case: 13-026473RDM; D/A: 1/11/2013
Claimant’s Counsel: Kevin Gallagher
Carrier’s Counsel: Robert Friedman
Briefly: MOTION TO ENFORCE SETTLEMENT – JCC McAliley considered the Motion to Enforce without a hearing and found that on the face of the documentation provided and after review of the OJCC docket, there was an insufficient basis for approval of side stipulations related to attorney’s fees. Therefore, the JCC required an evidentiary hearing on the Motion to Enforce.
Summary: The JCC noted that issues pertaining to the settlement remain outstanding, including claimant’s Motion for Approval of an Additional Fee to be paid by the claimant and claimant’s Motion for Approval of an Additional Fee to be paid by the Employer/Carrier.
The JCC ordered the parties to be in attendance at the evidentiary hearing.
Juan Hernandez v. Boffil Superior Concrete, LLC/AmTrust North America of Florida
JCC Medina-Shore; Miami District; Order Date: October 13, 2015
OJCC Case: 14-023812SMS; D/A: 9/17/2013
Claimant’s Counsel: Victor Malca and Jeffrey I. Jacobs
Carrier’s Counsel: Diane Hernandez and Terra Schlairet
Briefly: PRESUMPTION OF PTD; CATASTROPHIC INJURY – JCC Medina-Shore awarded permanent total disability benefits under F.S. 440.15(1)(b)2 and found the claimant suffered a catastrophic injury when his right leg was amputated above the knee.
Summary: Based on medical evidence, the JCC found the claimant lost the effective use of his right leg due to the amputation. The JCC found the claimant is presumed to be permanently and totally disabled pursuant to F.S. 440.15(1)(b)2, because of the amputation, unless the Employer/Carrier can establish that the claimant is physically capable of engaging in at least sedentary employment within a fifty mile radius of his residence. The JCC found that the Employer/Carrier did not meet their burden of proof.
The JCC accepted the claimant’s vocational opinion as more consistent with the claimant’s past work experience, lack of work experience, and physical restrictions. The JCC noted the claimant has never attended school and is only able to speak Spanish.