FL Case Law Summaries – 10/19/15
1st DCA Orders
Ramona Zavala v. Economic Development Commission of Mid-Florida, Inc. d/b/a/ Metro Orlando Economic Development Commission/ESIS, Insperity Support Services, LP/ACE American Insurance Company/Sedgwick CMS and Workforce of Central Florida/Florida Dept. of Financial Services-Division of Risk Management
Appeal of the Order of JCC Pitts
Case #1D14-4617; D/A: 11/12/2013
Appellate Counsel: Kelli Biferie Hastings and Adam Littman
Appellee Counsel: Kristen J. Longberry and Gerald F. Znosko
Briefly: EMPLOYER/EMPLOYEE RELATIONSHIP; NON-FINAL ORDER – The 1st DCA affirmed JCC Pitts’ finding that the State of Florida is the claimant’s sole employer for payment of benefits under F. S. §445.009(11), which deems a participant in an adult or youth activity under Chapter 445 to be “an employee of the State for workers’ compensation coverage.”
Summary: Although the DCA affirmed the order on appeal as to compensability and coverage from the State, the DCA cannot because of jurisdictional restraints address the second issue on appeal raised by the claimant: whether subsection 445.009(11) unconstitutionally bars the claimant’s entitlement to indemnity benefits. The DCA held that the appealed order is a non-final order with regard to indemnity benefits and expressly declined to consider claimant’s constitutional challenge to F.S. §445.009(11).
JCC Orders
Ronald Jackson v. Leware Construction Company/Amerisure Insurance
JCC Condry; Orlando District; Order Date: October 15, 2015
OJCC Case: 11-021915WJC; D/A: 1/18/2011
Claimant’s Counsel: Carl A. Feddeler
Carrier’s Counsel: Daniel DeCiccio
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Condry found the major contributing cause requirements did not apply and granted the claim for authorization of a doctor to treat the claimant’s injury, but denied treatment of the claimant’s left shoulder.
Summary: The JCC found the claimant established a reasonable and medically necessary basis for continuing treatment as a result of the compensable back injury, whether the basis for treatment is the sprain/strain or something else not yet detected. The JCC specifically found that the only demonstrated cause of the claimant’s’ back injury was the industrial accident. There was no medical opinion testimony indicating that the claimant’s industrial back injury was the product of an aggravation of a pre-existing condition. Therefore, the major contributing cause requirements of F.S. §440.09(1)(b) do not apply.
The JCC also found that the Employer/Carrier failed to demonstrate a break in causation chain, such as the occurrence of a new accident, or show that the requested treatment was due to a condition unrelated to the injury.
The JCC also found that the claimant did not present evidence sufficiently persuasive of having sustained a left shoulder injury with the industrial accident.
Kevin L. Huckins v. Centurylink Inc./Sedgwick CMS
JCC Pitts; Orlando District; Order Date: October 15, 2015
OJCC Case: 14-002996NPP; D/A: 11/17/2013
Claimant’s Counsel: Bradley G. Smith
Carrier’s Counsel: Raymond A. Lopez
Briefly: EXPERT MEDICAL ADVISOR – JCC Pitts appointed Dr. Robert Murrah as an Expert Medical Advisor based upon the conflict in the opinions of Dr. Greenberg and Dr. Shydohub, Dr. Weber, Dr. Halperin, and Dr. Gerber.
Summary: The JCC appointed an Expert Medical Advisor without receiving testimony, but relevant medical opinions were contained in the medical records attached to the Notice of Conflict filed by the Employer/Carrier.
Alfredo Guerrero v. American Airlines/American Airlines Workers’ Compensation Dept./Sedgwick CMS
JCC Kerr; Miami District; Order Date: October 15, 2015
OJCC Case: 13-006583MGK; D/A: 1/25/2013
Claimant’s Counsel: Toni Lynne Villaverde
Carrier’s Counsel: Robert A. Donahue
Briefly: Expert Medical Advisor – JCC Kerr concluded that not only must there be a disagreement between health care providers in order to appoint an Expert Medical Advisor, but that the disagreement must be relevant to the issues to be adjudicated, such that the appointment of an Expert Medical Advisor will assist a JCC in reaching his or her ruling.
Summary: JCC Kerr denied the claimant’s ore tenus Notice of Conflict in Medical Opinion and request to appoint an Expert Medical Advisor. The JCC noted that at issue for the final hearing is whether the claimant is entitled to an evaluation and treatment of his left shoulder.
The JCC reviewed the medical records and depositions and found that both doctors are of the opinion that an evaluation of the left shoulder is reasonable. Further, both doctors identified the difficulty in determining the cause of the claimant’s pain and the importance of history provided by the claimant in making that determination. As such, there is no disagreement which will assist the JCC in the adjudication of the claimant’s entitlement to an evaluation.
Adam Schwartz v. Cooke’s Plumbing & Septic d/b/a Rapid Industries, Inc./Amerisure Insurance
JCC D’Ambrosio; West Palm Beach District; Order Date: October 15, 2015
OJCC Case: 15-000963MAD; D/A: 12/29/2014
Claimant’s Counsel: Nick J. Panebianco
Carrier’s Counsel: Heath Eskalyo
Briefly: MOTION TO DISQUALIFY – JCC D’Ambrosio denied the claimant’s verified Motion to Disqualify as untimely and legally insufficient.
Summary: The JCC’s order did not elaborate on the factual allegations contained in the claimant’s motion, but merely denied the motion as untimely and insufficient.
George Ross, Jr. v. Mid Florida Carpentry and Investment Corp./Auto-Owners Insurance Company
JCC Sculco; Orlando District; Order Date: October 15, 2015
OJCC Case: 14-003694TWS; D/A: 11/25/2011
Claimant’s Counsel: Mark N. Tipton
Carrier’s Counsel: Shawn B. McKamey
Briefly: CAUSAL RELATIONSHIP – JCC Sculco denied claimant’s claim for authorization of physical therapy and CT scan and found claimant’s low back condition is not related to the compensable injury.
Summary: JCC Sculco reviewed the medical opinions and noted that both Dr. Galina and Dr. Scharma accepted the claimant’s statement that he has been experiencing and complaining about his low back since shortly after the accident, and based on that premise they concluded that the low back condition is related to the accident. The JCC noted that Dr. Choksi, in contrast, stated the claimant first notified anybody of any low back pain on or about November 2013 or December 2013, and based on that premise, opined that the back condition is not related to the industrial accident.
The JCC accepted Dr. Choksi’s opinion that the claimant’s low back condition is not related to the compensable injury. The JCC noted that the claimant’s counsel articulated plausible and reasonable explanations for why there was no mention of back complaints in the medical records. However, the JCC found it unlikely that all of the above records would have no mention of back complaints if the claimant truly reported them as he testified. The JCC found the claimant did not intentionally misrepresent his history, rather, he is simply a poor historian.
Jose Acevedo v. C&JR Services, Inc./Retail First Insurance Company
JCC Lewis; Ft. Lauderdale District; Order Date: October 15, 2015
OJCC Case: 14-024859DAL; D/A: 9/17/2014
Claimant’s Counsel: Ivan Morales
Employer’s Counsel: Ana Frexes
Carrier’s Counsel: Maria Valdes
Briefly: MOTION TO DISQUALIFY COUNSEL – JCC Lewis denied claimant’s Motion to Disqualify Counsel. Although the JCC does have jurisdiction to determine whether counsel should be disqualified, the JCC found that no conflict of interest exists, or that if such a conflict does exist, the representation is allowed because the former client has given informed consent.
Summary: The JCC rejected the claimant’s argument that a Judge of Compensation Claims does not have jurisdiction to determine a Motion to Disqualify Counsel and noted the 1st DCA opinion of Matrix Employee Leasing, Inc., v. Pool, 46 So. 3d 1147 (Fla. 1st DCA 2010). In making this finding, the JCC noted that although a Notice of Resolution of claims was filed, jurisdiction was reserved as to the issue of attorney’s fees.
The JCC noted that disqualification of a lawyer is a serious matter, so serious that it is highly disfavored because it operates to deprive a litigant of its chosen attorney, with constitutional implications. Disqualification of counsel is an extraordinary step resorted to only sparingly.
The Motion to Disqualify alleged a conflict of interest in representation of the employer by attorney Ana Frexes. The Motion specifically alleged that Ms. Frexes knows the inner workings of the carrier herein and she has represented the carrier on many occasions. After reviewing the facts and evidence, the JCC found that the matters which allegedly support a conflict of interest were not substantially related to the present case. The JCC found that no conflict of interest exists, or that if such a conflict does exist, the former client has given informed consent.
Iris M. Danowit v. Regis Corporation/Sedgwick CMS
JCC Beck; Sarasota District; Order Date: October 15, 2015
OJCC Case: 14-012528DBB; D/A: 9/20/2005
Claimant’s Counsel: Eric M. Christiansen
Carrier’s Counsel: Georgia Higgins
Briefly: ONE-TIME CHANGE – JCC Beck denied the claimant’s request for a one-time change in physicians to a local doctor and found that in response to the claimant’s request, the Employer/Carrier offered reasonable care even after considering the geographical location of the offered physicians.
Summary: In response to a request for a one-time change, the Employer/Carrier authorized a doctor of their choice, Dr. Chaumont, a Tampa physician, and an appointment was scheduled. The claimant’s attorney notified the Employer/Carrier that Dr. Chaumont was unacceptable as the claimant needed a local doctor. The Employer/Carrier responded that they would provide transportation to Dr. Chaumont’s office and medical mileage reimbursement, but would also offer Dr. Gerald Trimble in St. Petersburg, 37 miles from the claimant’s residence.
The JCC found that there are no distance limits in F.S. §440.13 and that a reasonableness standard applies. The JCC noted that in requesting a one-time change in physician, a claimant risks receiving another physician with whom she may also be unsatisfied. The JCC found that the offered care with Dr. Trimble and Dr. Chaumont was a reasonable offer.