FL Case Law Summaries – 10/21/16
BY:
To receive daily e-mails with case law summaries, e-mail: Esantos@eraclides.com
JCC ORDERS
Oswaldo Escalante v. Progressive Employer Management/Finish Line Feed/Amtrust North America of Florida
JCC Almeyda; Miami District; Order Date: September 30, 2016
OJCC Case: 16-006078ERA; D/A: 4/10/2015
Claimant’s Counsel: Anthony Forte
Employer/Carrier’s Counsel: William Goran
Briefly: ONE TIME CHANGE – JCC Almeyda denied the authorization of Dr. Suarez, and found claimant’s one-time change in physicians must be within the same specialty as the initial authorized physician.
Summary: The JCC relied on the First DCA opinion of Andino-Rivera v. Southeast Atlantic Beverage Company, 132 So. 3d 191 (Fla. 1st DCA 2014), holding that the claimant’s choice of an alternative or one-time change in physician under F.S. §440.13(2)(f) must be within the same specialty.
Thus, the JCC accepted the position of the Employer/Carrier and found the claimant’s one time change in this case must be within the same specialty as the initial authorized physician, an orthopedist. The change to rehabilitation specialist (physiatrist) was invalid, and, as such, Dr. Suarez is not authorized by operation of law, and Dr. Suarez’ opinion testimony is not admissible. The JCC denied compensability of the head, neck, left shoulder, and headaches conditions and denied authorization and payment of Dr. Suarez’s bills.
Raymond Simmons v. PCR, Inc./Travelers Insurance
JCC Hill; Gainesville District; Order Date: September 30, 2016
OJCC Case: 91-003722MRH; D/A: 8/26/1991
Claimant’s Counsel: Dora Kerner
Employer/Carrier’s Counsel: Thomas McDonald
Briefly: MEDICAL APPARATUS; MEDICAL NECESSITY – JCC Hill granted the claim for an installed emergency generator sufficient to power claimant’s central air conditioning, oxygen apparatus, and CPAP machine. The JCC found the emergency generator is medically necessary to power all of the claimant’s medically necessary equipment during power outages that occur several times per week.
Summary: The JCC found that based on Dr. Foster’s testimony, it is medically necessary that the claimant have “constant” electricity to prevent temperature extremes and to power his oxygen apparatus and CPAP machines. The JCC also noted testimony that the claimant lost electricity for “a week or so”, and twice when power was out two to three months.
Further, the JCC found the two portable air conditioning units are insufficient to adequately cool a single room, and were being used in addition to claimant’s central air conditioning. The JCC “reasonably inferred” that the portable air conditioning units, standing alone, are insufficient to meet the medically necessary requirement that claimant’s home be sufficiently cooled.
The JCC found the emergency generator is medically necessary to power all of the claimant’s equipment during power outages that occur.
Lisa Moore v. Walmart Stores, Inc./Sedgwick CMS
JCC Kerr; Miami District; Order Date: September 30, 2016
OJCC Case: 10-015709MGK; D/A: 4/8/2009
Claimant’s Counsel: Pedro Guerrero
Employer/Carrier’s Counsel: Christopher Cleary
Briefly: – ATTORNEY’S FEES – JCC Kerr denied the Motion for claimant-paid attorney’s fees and found there was no evidence or documentation to show claimant’s counsel obtained benefits for his client.
Summary: The JCC noted that Attorney Guerrero claimed entitlement to the claimant-paid attorney’s fees as he spent significant time “facilitating” the provision of benefits and was actively engaged in ensuring the prompt and efficient provision of benefits, although there was no concern benefits could or would be suspended at any time.
The JCC found Attorney Guerrero did not separately obtain any benefits for his client and could not identify any benefits which were provided as a result of his efforts as opposed to those provided voluntarily by the carrier as part of a normal claims-handling process. The JCC recognized the parties were in agreement regarding the payment of a claimant-paid fee and the agreement of the parties should be awarded weight in any proceeding. However, the JCC found the underlying basis for the provision of attorney’s fees and costs must be in conformity with F.S. §440.34 and a stipulation alone cannot and does not empower the JCC to ignore the obligation imposed under F.S. §440.34(3)(a) to award fees only in a situation where benefits have been secured by an attorney.
The JCC found there was no entitlement to a claimant-paid attorney’s fee over and above the $78,750.00 in fees already paid to counsel ($38,750 by the claimant and $30,000 by the Employer/Carrier).
Jeffrey W. Keller v. Green Energy Harvesting Venture 1/Insurance Company of the West
JCC Dietz; Melbourne-Sebastian District; Order Date: September 30, 2016
OJCC Case: 15-028375RLD; D/A: 7/1/2015
Claimant’s Counsel: Kenneth E. Ehrlich
Employer/Carrier’s Counsel: Ya’Sheaka Campbell Williams
Briefly: CAUSAL RELATIONSHIP – JCC Dietz granted the claim for evaluation by an orthopedist for evaluation of the cervical spine to rule in/out causal relationship to the accident and treatment if necessary.
Summary: The JCC noted the claimant’s health insurance covered medical treatment but ended when the claimant’s employment was terminated, resulting in no additional medical treatment or pain medication to help cover the cervical and lumbar pain he was experiencing. The JCC found that after litigation was initiated, Dr. Bryan Reiter reported objective findings in the cervical spine including spasm which was consistent with the claimant’s complaints of neck pain radiating into the head, headaches, and numbness and tingling in the arms. Dr. Reiter recommended the claimant’s cervical condition be evaluated by a spine surgeon and the claimant be evaluated by a pain management specialist.
The JCC found the claimant’s injuries to his spine were uncontested and that no challenge was made to the accident causing his injury.
The JCC found the claimant met his burden of proof that he suffered a compensable accident with subsequent cervical complaints and was entitled to evaluation by an orthopedic spine specialist to determine whether any additional cervical treatment is necessary as a result of the work-related accident.
Linda Gardner v. AVT Simulation/Technology Insurance Company/AmTrust North America of Florida
JCC Sculco; Orlando District; Order Date: September 30, 2016
OJCC Case: 14-008553TWS; D/A: 12/30/2013
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Gregory B. White
Briefly: HINDRANCE TO RECOVERY – JCC Sculco denied the claim for authorization of total hip replacement surgery, but awarded authorization for evaluation with a neurologist. The JCC found the primary purpose of the total hip replacement surgery in this case is to treat the pre-existing arthritis and that it was not medically necessary to perform total hip replacement surgery in order to treat the compensable hip fracture.
Summary: The JCC identified the “hindrance to recovery” doctrine and cited various cases reflecting that the Employer/Carrier can be responsible for treating an unrelated condition if one of the primary purposes of the treatment is also the removal of the hindrance to recovery from the compensable accident.
Here, the JCC accepted the opinion of the EMA, Dr. Murrah, that it was not medically necessary to perform total hip replacement surgery in order to treat the claimant’s compensable osteophyte fracture. The JCC noted that Dr. Murrah opined the preexisting hip degeneration was not impeding or hindering healing of the compensable osteophyte fracture. Further, the JCC noted that Dr. Murrah also stated that “we can always speculate as to whether the – osteophyte is actually a significant source of pain at this point.” The JCC found this testimony is insufficient to support authorization of the hip replacement surgery under the hindrance to recovery theory.
However, the JCC did find a neurological evaluation was medically necessary and reasonable required by the nature of the injury. The JCC found the greater weight of the evidence supports the claimant’s entitlement to neurological evaluation to address her nerve symptoms pursuant to the opinion of Dr. Beckner, the authorized physician.