FL Case Law Summaries – 10/16/15
JCC Orders
W.H. Roger Paramore v. W. G. Yates and Sons Construction/Travelers
JCC Lazzara; Tallahassee District; Order Date: October 14, 2015
OJCC Case: 15-015374JJL; D/A: 7/18/2013
Claimant’s Counsel: Pro se; formerly Henry Mowry
Carrier’s Counsel: Jennifer S. Haley-Gleason
Briefly: ATTORNEY’S FEES – JCC Lazzara granted in part the Motion for Approval of Attorney’s Fees. In dispute were attorney’s fees claimed by former counsel for the claimant who filed no Petition for Benefits.
Summary: Although the claimant executed a Motion for Approval of Attorney’s Fees providing for payment of $750 as a fee to his former counsel out of a washout settlement of $40,000, at the hearing the claimant expressed dissatisfaction with the legal services of his former counsel and did not feel any fees were owed.
The claimant testified that he became dissatisfied with his former counsel who only met with the claimant telephonically. The JCC found no claims were filed and no benefits were secured for the claimant through the efforts of former counsel. The JCC rejected former counsel’s contention that his services were instrumental in the ultimate settling of the case.
The JCC found that most of the time spent by claimant’s former counsel was clerical or secretarial in nature. The JCC ordered the claimant shall pay his former counsel $500.
Axell Gonzalez v. Bouygues Civil Works/Zurich American Insurance Company
JCC Hill; Miami District; Order Date: October 14, 2015
OJCC Case: 13-009665CMH; D/A: 3/1/2013 & 4/17/2013
Claimant’s Counsel: Monica De Feria Cooper
Carrier’s Counsel: Brian S. Rothman
Briefly: MOTION TO VACATE – JCC Hill granted the claimant’s Motion to Vacate order which dismissed pending Petitions for Benefits for failing to appear at the prior show cause hearing.
Summary: The JCC found the claimant’s testimony trustworthy and credible. The JCC accepted the claimant’s testimony that his travel to Nicaragua was for the purpose of obtaining affordable medical treatment and due to difficulties he experienced in maintaining contact with the attorneys in Miami, and that he made efforts to return in a timely fashion for the show cause hearing. Based upon the claimant’s testimony, the JCC found the claimant did not willfully, or with any degree of insolence, disobey the order of the court.
Shannon Page v. American Airlines/Sedgwick CMS
JCC Kerr; Miami District; Order Date: October 14, 2015
OJCC Case: 10-028869MGK; D/A: 12/12/2008 & 11/30/2010
Claimant’s Counsel: Matthew Sosonkin
Carrier’s Counsel: Ingrid Gonzalez
Briefly: MOTION TO DISMISS – JCC Kerr denied the Employer/Carrier’s Motion to Dismiss all outstanding benefits and accepted the claimant’s testimony that he failed to attend prior scheduled events, including depositions, because he was involved in a serious motor vehicle accident in Missouri and for other reasons.
Summary: The claimant’s testimony included a description of various motor vehicle accidents and hospitalizations that caused the claimant to miss the scheduled depositions. The claimant described the periods of time in which he was hospitalized, underwent surgery, and was heavily medicated. The JCC found the claimant presented good cause to excuse his failure to comply with the JCC’s order compelling appearance.
In order to cure prejudice to the Employer/Carrier, the JCC continued the final hearing.
Alfonso Ramos v. Club Link Corp./The Hartford
JCC Spangler; Tampa District; Order Date: October 14, 2015
OJCC Case: 13-000724EDS; D/A: 6/21/2012
Claimant’s Counsel: Eric Christiansen
Carrier’s Counsel: Beatriz Justin
Briefly: FAILURE TO PROSECUTE – JCC Spangler denied the Employer/Carrier’s Motion to Dismiss sixteen Petitions for Benefits for Failure to Prosecute and found there was ongoing record activity.
Summary: The Employer/Carrier moved to dismiss all sixteen outstanding Petitions for Benefits on the grounds that each of the Petitions were resolved with a reservation of jurisdiction of entitlement to attorney’s fees that were no longer being prosecuted by the claimant. The claimant responded that record activity in the case was ongoing and that benefits were still accruing as a result of several outstanding Petitions. The JCC found merit in the claimant’s argument.
Joann Nannini v. Clearwater Marine Aquarium/AmTrust North America of Florida
JCC Rosen; St. Petersburg District; Order Date: October 14, 2015
OJCC Case: 14-024637SLR; D/A: 5/4/2014
Claimant’s Counsel: Michael T. Keough
Carrier’s Counsel: Ben H. Cristal
Briefly: MOTION TO CONTINUE – JCC Rosen continued the final hearing at the request of the Employer/Carrier based on a newly discovered witness.
Summary: The JCC granted the Employer/Carrier’s continuance of the final hearing on the basis that the Employer/Carrier discovered another doctor who saw the claimant for a prior visit. The JCC noted that the Employer/Carrier properly filed a Motion for Continuance when first learning of this information and scheduled the doctor for deposition.
Debra Mabbitt v. Palm Beach County Health Department/Division of Risk Management
JCC Basquill; West Palm Beach District; Order Date: October 14, 2015
OJCC Case: 14-010366TMB; D/A: 1/11/2013
Claimant’s Counsel: Daniel DeCiccio
Carrier’s Counsel: Jane McGill
Briefly: EMA; 120 DAY RULE – JCC Basquill awarded medically necessary care and treatment as recommended by the Expert Medical Advisor and found the Employer/Carrier waived their right to deny by providing authorized care subsequent to the 120 day period.
Summary: The JCC found that the Expert Medical Advisor’s opinion controls the determination of this case.
The JCC found that although the Employer/Carrier initially accepted this case under the 120 Day Rule, the Employer/Carrier continued to authorized care and treatment long after the 120 days ran. The JCC noted the Employer/Carrier made no argument of showing it could establish material facts relevant to the issue of compensability it could not have discovered through a reasonable investigation in the 120 day period.
Vertudieu Joseph v. Brickman/ESIS WC Claims
JCC Almeyda; Miami District; Order Date: October 14, 2015
OJCC Case: 15-019955ERA; D/A: 7/24/2015
Claimant’s Counsel: Jeffrey Gale
Carrier’s Counsel: Puja Solanski
Briefly: MOTION FOR SUMMARY FINAL ORDER – JCC Almeyda denied claimant’s Motion for Summary Final Order on the issue of compensability and found there is an outstanding issue on the subject of compensability based on affidavits submitted by the Employer/Carrier.
Summary: The claimant brought a Motion for Summary Final Order on the issue of compensability and submitted affidavits in which the claimant averred that he has been an employee of this employer for the last three years as a landscaper, that he was supplied machetes for use in his occupation, and that he was using a machete at the time of his injury.
In response, the Employer/Carrier submitted affidavits which averred that the use of machetes at work was specifically prohibited and that the claimant was using a machete at the time of injury to open a coconut, not one of his usual and customary duties.
The JCC found there was an outstanding issue of compensability and denied the Motion for Summary Final Order.
Michael Bowman v. Goodwill Industries/Patriot Risk Services
JCC Beck; Sarasota District; Order Date: October 14, 2015
OJCC Case: 15-004259DDB; D/A: 4/4/2014
Claimant’s Counsel: Craig O. Stewart
Carrier’s Counsel: Daniel J. DeMay
Briefly: KNEE REPLACEMENT; TPD; APPORTIONMENT – JCC Beck granted authorization of the knee replacement surgery, granted the request for temporary partial disability, and granted the Employer/Carrier’s request to apportion medical and indemnity benefits.
Summary: The JCC accepted the opinion of Dr. Noah, the claimant’s treating physician, who recommended knee replacement surgery as medically necessary. The JCC rejected the Employer/Carrier’s argument that the claimant’s left knee condition is primarily personal in nature. The JCC accepted Dr. Noah’s opinion that 60% of the claimant’s need for the surgery is related to the industrial accident by major contributing cause.
The JCC also accepted Dr. Noah’s testimony that the claimant’s pre-existing degenerative arthritis was accelerated or aggravated by the industrial accident and that the claimant’s injury was 60% attributable to the industrial accident and 40% to the pre-existing condition.
Based on the authority of Staffmark v. Merrell, 43 So. 3d 792 (Fla. 1st DCA 2010), the JCC found the Employer/Carrier was only responsible for 60% of the medical and disability amounts due, and the claimant is responsible for the remaining 40%.
Nancy McGowan v. Seminole State College/Gallagher Bassett Services, Inc.
JCC Pitts; Orlando District; Order Date: October 14, 2015
OJCC Case: 14-008377NPP; D/A: 2/7/2014
Claimant’s Counsel: David I. Rickey
Carrier’s Counsel: Philip R. Augustine
Briefly: VOCATIONAL ASSESSMENT – JCC Pitts denied the Employer/Carrier’s Motion to Compel Vocational Assessment under F.S. §440.15(1)(e)1 without prejudice to refile on the condition the claimant files a claim for permanent total disability, or the claimant’s overall MMI date is changed and the claimant files a claim for TPD.
Summary: The JCC found there is no pending claim for permanent total disability and there is no claim for ongoing temporary partial disability benefits beyond the maximum medical improvement date.
The JCC found a “vocational evaluation”, including testing with a vocational evaluator who will testify at the trial regarding claimant’s employment status, is available to the Employer/Carrier pursuant to F.S. §440.15(1)(e)1 if the claimant is receiving permanent total disability benefits or has a pending claim for PTD.
Michael Potter v. Lockheed Martin Corporation/ACE USA
JCC Dietz; Sebastian-Melbourne District; Order Date: October 14, 2015
OJCC Case: 91-003568RLD & 98-002319RLD; D/A: 8/15/1991 & 1/27/1998
Claimant’s Counsel: Sean McCormack
Carrier’s Counsel: James M. Hess
Briefly: RES JUDICATA; PETITION FOR MODIFICATION – JCC Dietz dismissed the Petition for Benefits seeking permanent total disability based on res judicata and found that if the Petition was viewed as a Petition for Modification, the claim was filed untimely and denied for lack of jurisdiction.
Summary: The JCC noted a prior JCC in 2009 found that the claimant had not carried his burden of proof to establish he was PTD as a result of the 1991 accident.
The JCC found that although the claimant’s current claim for permanent total disability benefits is for a later period of time, it meets the required elements of the “identity of the things sued for or identity of the cause of action” necessary for application of the doctrine of res judicata. The JCC found that the prior 2009 order determined factual legal issues which are dispositive of the current claim.
The JCC found that if the current claim is considered a Petition for Modification under F.S. §440.28, the claim was not brought within two years of the prior order and is, therefore, untimely.