FL Case Law Summaries – 10/20/15
By:
Supreme Court of Florida
Daniel Stahl v. Hialeah Hospital, et al
Opinion Date: October 13, 2015
Appeal of the 1st DCA Opinion, 160 So. 3d 519 (Fla. 1st DCA 2015), affirming Order of JCC Stephen L. Rosen
Case: SC15-725; D/A: 12/8/2003
Appellant’s Counsel: Mark L. Zientz
Appellee’s Counsel: Russell H. Young, Eraclides, Gelman, Hall, Indek, Goodman & Waters
Briefly: CONSTITUTIONALITY OF WORKERS’ COMPENSATION LAW – The Supreme Court of Florida accepted jurisdiction to decide a constitutional challenge to Florida Workers’ Compensation Law, Chapter 440, based upon the 1994 addition of a $10 co-pay for medical visits after a claimant attains maximum medical improvement and the 2003 elimination of Permanent Partial Disability (PPD).
Summary: The Supreme Court accepted jurisdiction to decide a constitutional issue previously addressed by the 1st DCA. The Claimant/Appellant argues that Florida Workers’ Compensation Law is an inadequate exclusive replacement remedy for tort action and is, therefore, unconstitutional. The Claimant/Appellant argues that amendments to the law in 1994, requiring a $10 co-pay for medical visits after the claimant attains maximum medical improvement, and in 2003, eliminating permanent partial disability (PPD), make the workers’ compensation law unconstitutional.
The 1st DCA disagreed with the Appellant and found both amendments withstand rational basis review, in that the co-pay provision furthers a legitimate stated purpose of ensuring reasonable medical costs after the injured worker has reached maximum medical improvement and PPD benefits were supplanted by impairment income benefits.
JCC Orders
Jennifer Mielke v. R&L Carriers/CCMSI
JCC Hill; Gainesville District; Order Date: October 16, 2015
OJCC Case: 15-010535MRH; D/A: 6/3/2014
Claimant’s Counsel: Monte Shoemaker
Carrier’s Counsel: Scot Nimmo
Briefly: FAILURE TO RESPOND TO REQUEST FOR AUTHORIZED MEDICAL CARE UNDER F.S. §440.13(3)(d) and (i) – JCC Hill found that the Employer/Carrier did not respond within three business days or ten business days following receipt of the referral for pain management and, consequently, the Employer/Carrier was estopped from challenging the medical necessity of the pain management referral.
Summary: The JCC cited F.S. §440.13(3)(d) and found that a carrier who fails to respond to a written request from an authorized health care provider for authorization for referral for medical treatment by the close of the third day after receipt of the request consents to the medical necessity of such treatment.
An Employer/Carrier who fails to timely respond is estopped from challenging the medical necessity of the referral.
Likewise, the JCC applied F.S. §440.13(3)(i) and found the claim for pain management evaluation was valid and reimbursable as the Employer/Carrier failed to respond in 10 days.
The JCC “reasonably inferred” the referral was necessary to determine the etiology of the claimant’s continued pain and whether it was caused by the industrial accident.
Nancy J. Harris v. Hillsborough School Board/Broadspire
JCC Massey; Tampa District; Order Date: October 16, 2015
OJCC Case: 14-026644MAM; D/A: 9/13/2013
Claimant’s Counsel: Dixie Tisha Brady
Carrier’s Counsel: Robert Byelick
Briefly: HINDRANCE TO RECOVERY– JCC Massey found that the claimant had been placed at maximum medical improvement for her work injuries by all doctors, and, therefore, there is no further “recovery” to be had and no further improvement to be made. As a result, the hindrance to recovery theory does not apply.
Summary: The JCC found that the medical evidence does not support the hindrance to recovery theory and noted that the physicians opined that the medical items in question would not assist the claimant’s work place injuries. In this case, the claimant sustained a pelvic injury and the physicians testified that the pelvic fracture is probably fairly stable and that after a year post-injury no further improvement in the pelvic fractures can reasonably be expected.
Although the JCC noted that the medical benefits requested were reasonable and medically necessary to assist the claimant and improve her mobility, the greater weight of the medical evidence established that the major contributing cause of the need for the benefits requested was not the work accident but, rather, one or more personal non-work related conditions.
Pedro Montalvo v. American Airlines/Sedgwick CMS
JCC Massey; Tampa District; Order Date: October 16, 2015
OJCC Case: 13-025425MAM; D/A: 2/9/2013
Claimant’s Counsel: Toni Lynne Villaverde
Carrier’s Counsel: Robert A. Donahue
Briefly: PERMANENT TOTAL DISABILITY – JCC Massey granted the claim for permanent total disability benefits and found that, under the current statute, a claimant who remains totally disabled at the end of eligibility for temporary total disability benefits, but who has not yet reached “actual” maximum medical improvement, is deemed to be at maximum medical improvement as a matter of law and may assert a claim for permanent total disability benefits. The claimant was awarded permanent total disability benefits for the “gap period” between the period of time following 104 weeks, but prior to when he was first released to return to work.
Summary: The JCC rejected the Employer/Carrier’s argument that the claimant was capable of performing sedentary type work during the “gap.” The JCC found that the claimant was never advised he was released to return to work during this period. The JCC found that an award of post-104 weeks, pre-actual MMI permanent total disability benefits is not unlike an award of continued temporary total disability benefits. The JCC noted that temporary total disability benefits could not be denied for a certain period, even though the treating physician later testified that the claimant could have returned to work during that period, because no one advised or informed the claimant that he was released to return to work. There was no evidence the claimant knew he was released to return to work and no evidence he should have known he was released.
The JCC found the claimant was permanently totally disabled for the “gap” period of time, despite the Employer/Carrier’s argument that there was no proof of permanent medical incapacity to work, or permanent limitations combined with either a job search or vocational factors as required under Blake v. Merck and Company, 43 So. 2d 882 (Fla. 1st DCA 2010).
Carl Allen v. University of Miami Hospital/Gallagher Bassett Services, Inc.
JCC Hill; Gainesville District; Order Date: October 16, 2015
OJCC Case: 13-020217MRH; D/A: 5/29/2013
Claimant’s Counsel: Ricardo Morales
Carrier’s Counsel: Michael Adam Wasserman
Briefly: PERMANENT TOTAL DISABILITY – JCC Hill granted the claim for permanent total disability after considering claimant’s permanent work restrictions, sedentary work requirements, and incapacity to engage in at least sedentary work within a fifty mile radius of his home.
Summary: The JCC noted that in a post-2003 date of accident, a claimant not presumptively permanently totally disabled based on a listed injury may establish entitlement to PTD benefits by presenting evidence of one of the following: 1) permanent medical incapacity to engage in at least sedentary employment within a fifty mile radius of the employee’s residence, due to physical limitations; 2) permanent work-related physical restrictions coupled with an exhaustive, unsuccessful job search; 3) permanent work-related physical restrictions that, while not alone totally disabling, preclude a claimant from engaging in at least sedentary employment when combined with vocational factors.
The JCC found the claimant established permanent total disability entitlement under the first method, and therefore, it was unnecessary to address entitlement under the second and third methods.
Wilbert Grefin v. LFC Enterprises, Inc./Zurich American Insurance Company
JCC Weiss; Ft. Myers District; Order Date: October 16, 2015
OJCC Case: 14-028265JAW; D/A: 10/11/2014
Claimant’s Counsel: Clifford Moskowitz
Carrier’s Counsel: Trent D. Miller
Briefly: AUTHORIZATION OF MEDICAL TREATMENT – JCC Weiss awarded medical treatment including vestibular therapy and found that any discrepancies in the claimant’s history, specifically whether the claimant lost consciousness at the time of the accident, was more likely a bi-product of misunderstanding what the claimant was saying, perhaps due to the language barrier as claimant’s history was provided via an interpreter.
Summary: The JCC noted that even under direct examination at the final hearing, the claimant’s own lawyer had to ask a number of questions to clarify whether the claimant was saying that he lost consciousness or merely was “out of it” for a bit after he struck his head.
The JCC accepted the opinions of Dr. Ray as more consistent with logic and reason than the medical opinions of Dr. Wolff. The JCC noted that objective test results support Dr. Ray’s opinions as a board-certified psychiatrist and pain medicine specialist who treats headaches and dizziness as a normal part of his practice.
Herman Williams v. Community Health Systems, Inc./Gallagher Basset Services, Inc.
JCC Rosen; St. Petersburg District; Order Date: October 16, 2015
OJCC Case: 15-009355SLR; D/A: 1/20/2015
Claimant’s Counsel: Joseph M. Rooth
Carrier’s Counsel: Joseph W. Standley
Briefly: ONE-TIME CHANGE; TPD – JCC Rosen granted the claimant’s request for a one-time change in physicians of the claimant’s choice and awarded temporary partial disability benefits.
Summary: The JCC found that the claimant, through his attorney, requested a one-time change in physicians to an orthopedic surgeon on April 17, 2015. The Employer/Carrier failed to authorize a one-time change within the five calendar-day requirement and, even though the Employer/Carrier later offered a physician, the offer was too late and the right to choose the one-time change falls with the claimant.
The claimant was awarded temporary partial disability benefits and although the Employer/Carrier attempted to offer the claimant a job within his physical restrictions, the claimant did not receive the job offer due to an unfortunate failure of communication between the claimant and his employer and the claimant was terminated for failure to return to work.
Yvette Rivera v. Hospitality Staffing Solutions, LLC/ACE USA
JCC Hill; Miami District; Order Date: October 16, 2015
OJCC Case: 14-019042CMH; D/A: 7/17/2014
Claimant’s Counsel: D. Robert Wells
Carrier’s Counsel: Amy B. Siegal
Briefly: ONE-TIME CHANGE IN PHYSICIAN – JCC Hill ordered that the Employer/Carrier is to authorize an alternative physician, who is an orthopedic hand specialist of the claimant’s choosing.
Summary: The JCC found that there was a compensable injury and that the claimant is entitled, as a matter of law, to a one-time change in physicians under F.S. 440.13(2)(f), but that the ruling does not bar a major contributing cause defense as to the need for future treatment recommended by the alternative physician.
The JCC rejected the Employer/Carrier’s argument that the claimant ran the full course of treatment because she has achieved maximum medical improvement with no permanent impairment rating and there is no opinion establishing the need for care related to her compensable injuries.
Ronald Rodriguez v. Sam Ash Music/AmTrust North America of Florida
JCC Almeyda; Miami District; Order Date: October 16, 2015
OJCC Case: 14-029287ERA; D/A: 11/7/2014
Claimant’s Former Counsel: Richard Zaldivar and Robert Wells
Carrier’s Counsel: Judith Blinderman
Briefly: ATTORNEY’S FEES – JCC Almeyda denied the claim for attorney’s fees and found that claimant’s prior counsel did not obtain any benefits for his client.
Summary: The claimant’s former counsel, Richard Zaldivar, contended he was entitled to a fee as the Petition for Benefits was not responded to until 29 days, rather than 14 days after the date it was filed. The JCC rejected this argument and distinguished the case of Quenca v. Nova Southeastern, 1D14-3393 (Fla. 1st DCA 2015) on the grounds that, in Quenca, not only did the Employer/Carrier not respond within 14 days, the carrier did not provide the benefits until more than 30 days from the date of the Petition. In the present case, the JCC found that the provision of initial medical care was already furnished to the claimant before the Petition for Benefits was ever filed.
Claimant’s former counsel also argued a fee was due on circumstances involving a return medical appointment for the claimant. The JCC rejected this argument and found the return appointment at issue was never claimed. The JCC found the claim specifically requested initial treatment, not a follow-up appointment.
Yoban Arley Jimenez Madrid v. Stahlman Services, Inc./Bridgefield Employers Insurance Company
JCC Sturgis; Ft. Myers District; Order Date: October 16, 2015
OJCC Case: 14-006689KAS; D/A: 11/15/2013
Claimant’s Counsel: D. Robert Wells
Carrier’s Counsel: David Roos
Briefly: COMPENSABILITY – JCC Sturgis found the claimant did not meet his burden to establish entitlement to the provision of care for his back.
Summary: The JCC noted the claimant did not obtain his own IME or offer any medical evidence at the final hearing whatsoever. The JCC found the claimant did not meet his burden of proof to establish the alleged work accident was the major contributing cause of an injury to his low back or that any treatment was needed.
The JCC found that the only medical evidence was from the Employer/Carrier’s IME, Dr. Lusk. Dr. Lusk opined that the claimant’s low back complaints are not related to the alleged work injury and found no anatomical abnormalities.