FL Case Law Summaries – 10/21/15
BY:
JCC Orders
Maria E. Rivera v. Miami Dade County School Board/Gallagher Bassett Services, Inc.
JCC McAliley; Port St. Lucie District; Order Date: October 19, 2015
OJCC Case: 13-020598RDM; D/A: 3/14/2013
Claimant’s Counsel: Roberto Ramirez
Employer/Carrier’s Counsel: Christopher McClure
Briefly: ATTORNEY’S FEES – JCC McAliley dismissed with prejudice certain claims for attorney’s fees and costs where the Employer/Carrier filed a Motion to Compel Verified Petition for Attorney’s Fees and Costs pursuant to Rule 60Q-6.124(3) and the claimant did not respond to the motion.
Summary: JCC McAliley cited Rule 60Q-6.124(5)(a) and found that, under the circumstances, where claimant did not respond to the Employer/Carrier’s Motion to Compel Verified Petition for Attorney’s Fees, it is mandatory for the JCC to enter an order requiring relief sought by the Employer/Carrier.
Fernando Hernandez v. AAR Corporation/Sentry Insurance
JCC McAliley; Port St. Lucie District; Order Date: October 19, 2015
OJCC Case: 13-028454RDM; D/A: 9/13/2013
Claimant’s Counsel: Orlando R. Murillo
Employer/Carrier’s Counsel: Alexander Blanco
Briefly: EXPERT MEDICAL ADVISOR – JCC McAliley denied appointment of an Expert Medical Advisor and found there was no disagreement between healthcare providers.
Summary: The claimant requested authorization for physical therapy for the lumbar spine as recommended by the authorized treating physician, Dr. Kenneth R. Hodor, and a determination that the claimant injured his low back as a result of the subject industrial accident.
Despite the request, the JCC found that the authorized treating physician, Dr. Hodor, testified there is insufficient medical evidence to support a finding that the claimant sustained an ongoing low back injury as a result of his industrial accident. The JCC also found that the Employer/Carrier’s Independent Medical Examiner, Dr. Warren Grossman, testified the claimant did not sustain an injury to his low back and that the claimant’s continuing lumbar complaints were consistent with mild degenerative changes present in the lumbar spine.
The JCC found that no disagreement between healthcare providers was shown to exist.
Theodore Hoffman v. Precision Concrete Cutting/Bridgefield Employers Insurance Company
JCC Winn; Pensacola District; Order Date: October 19, 2015
OJCC Case: 12-027382NSW; D/A: 10/15/2012
Claimant’s Counsel: Kevin R. Gallagher
Employer/Carrier’s Counsel: Michael W. Brown
Briefly: ONE-TIME CHANGE; ESTOPPEL DUE TO PAYMENTS IN ERROR – JCC Winn denied the claim for authorization of Dr. Suarez as a one-time change in physicians. The JCC found the Employer/Carrier responded to the request for a one-time change with authorization of Dr. Lerner and that Dr.Lerner is not “professionally affiliated” with Dr. Tannenbaum, the claimant’s initial authorized physician. Also, the JCC found that the Employer/Carrier is not estopped from denying authorization of Dr. Suarez, despite numerous medical bills of Dr. Suarez paid by the Employer/Carrier in error.
Summary: The claimant became dissatisfied with the authorized care of Dr. Tannenbaum and requested a one-time change to Dr. Suarez. In response, the Employer/Carrier authorized Dr. Lerner as claimant’s one-time change and claimant objected, arguing that Dr. Lerner is “professionally affiliated” with Dr. Tannenbaum.
The JCC found that “professionally affiliated” for purposes of F.S. 440.13(2)(f) encompasses any relationship that is professional, personal, business or otherwise between the two physicians which would lead a reasonable person to conclude such relationship creates an appearance of impropriety, suggestive of a potential conflict of interest incompatible with a finding of independence.
In this case, the JCC found that Dr. Tannenbaum and Dr. Lerner, by working in the same HealthSouth facility, serving together on the medical executive committee, and occasionally passing in the hallway, does not lead a reasonable person to conclude such a relationship creates an appearance of impropriety suggestive of a potential conflict of interest incompatible with a finding of independence.
The JCC also denied the claimant’s argument that the Employer/Carrier is estopped from denying authorization of Dr. Suarez by virtue of the Employer/Carrier continually paying Dr. Suarez for nearly every visit he had with the claimant over a year’s time. The JCC cited the case of Regency Electric Company v. Honrath, 673 So. 2d 897 (Fla. 1st DCA 1996), and held that erroneous payments alone are not sufficient to establish estoppel. In order to establish estoppel, the claimant is required to prove: 1) the Employer/Carrier misrepresented a material fact; 2) the claimant relied on the misrepresentation; and 3) the claimant changed his position based on the misrepresentation to his detriment.
The JCC found that the claimant presented no testimony regarding the necessary elements that the claimant relied upon the Employer/Carrier’s misrepresentation and changed his position based on the misrepresentation to his detriment. The JCC found that claimant did not file his Petition for Benefits seeking authorization of Dr. Suarez until he had seen the doctor six times and the doctor was paid by the Employer/Carrier for all six visits. The JCC stated such facts do not support a claim of detrimental reliance.