FL Case Law Summaries – 10/2/15
1st DCA Orders
Ernesto O. Sierra v. Metropolitan Protective Services/Guarantee Insurance
Appeal of the Order of JCC Rosen; Opinion Dated September 30, 2015
Case No. 1D15-0095; DOI: 4/1/2012;
Attorney for Appellant: Michael Goldstein; Attorney for Appellee: Walter C. Wyatt
Briefly: THE 120-DAY RULE, F.S. 440.20(4) – The 1st DCA reversed and remanded the JCC’s Order for failing to make sufficient findings concerning the application of F.S. 440.20(4), the 120-day rule, in order to determine whether the Employer/Carrier waived the right to deny compensability of a post-traumatic stress disorder.
Summary: The DCA reversed and remanded this issue to the JCC for determination of findings of fact or conclusions of law relevant to the application of the 120-day rule, under subsection 440.20(4). The DCA held that a correct analysis of the issues required the following findings: (1) the date the Employer/Carrier first provided benefits for a psychiatric injury; (2) the identity of the specific psychiatric injury for which benefits were provided; and (3) whether the Employer/Carrier timely denied compensability of the psychiatric injury for which it provided benefits – i.e., within the 120 day period immediately following the initial provision of benefits for the specific psychiatric injury. The DCA also held that the necessary analysis may included the determination of whether the “carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120 day period,” which is a statutory exception to the 120-day rule.
Once this analysis occurs, then the identity of any psychiatric injury made compensable by operation of the 120-day provision of 440.20(4), may be determined, including whether the compensable psychiatric injury is the major contributing cause of the need for the specific treatment requested by the claimant and whether such treatment is medically necessary.
The DCA stated that it was important to note that, because medical treatment is usually provided for an injury, not an “accident”, a declaration that the need for specific medical treatment is not caused by a major part of the work place “accident” evades the essential determination of the identity of the compensable injury.
Accordingly, when determining whether the compensable psychiatric injury is the major contributing cause for the need of the requested treatment, the JCC must consider whether the Employer/Carrier has shown a “break” in the causation chain so that the compensable psychiatric injury, if any, is “no longer” the major contributing cause of the need for requested treatment.
Judith A. Bedwel v. Stone Container ER Corp./Broadspire Insurance
Appeal of the Order of JCC; Opinion Dated September 30, 2015
Case No. 1D15-2686; DOI: 6/22/1987
Attorney for Appellant: Bill McCabe; Attorney for Appellee: William H. Rogner
Briefly: IME ON APPEAL – The DCA denied the claimant’s writ of certiorari and rejected the claimant’s argument that the JCC departed from the essential requirements of law when she ordered the claimant to undergo an IME in the midst of an unresolved and still-litigated medical dispute for this 1987 date of accident.
Summary: The DCA pointed out that the law governing this June 22, 1987, date of accident gives the JCC broad discretion in ordering an IME. The DCA cited the case of Berry Corp. v. Smith, 576 So. 2d 1366 (Fla. 1st DCA 1991), and held that the JCC was authorized to order an IME using investigative power provided under Florida Statutes 440.29(1)(1987).
The DCA addressed a common misunderstanding of the required element of a departure from the essential requirements of law. The DCA explained that the undetermined and inchoate merits of the untried claim for medical benefits is irrelevant to the question of whether the JCC departed from the essential requirements of law when the JCC ordered the claimant to undergo an IME in the midst of an unresolved and still-litigated medical dispute. The DCA noted that any subsequent adjudication of the issues will be subject to plenary review on appeal.
JCC ORDERS
Michael E. Dzielak v. Professional Staffing and Payroll Services, LLC/Ascendant Claims Services
JCC Sturgis; Ft. Myers District; Order Date: September 30, 2015
OJCC Case: 15-014341KAS; D/A: 05/20/2015
Claimant’s Counsel: Victor Arias; Employer/Carrier Counsel: Daniel Gonzalez
Briefly: COVERAGE – JCC Sturgis found Ascendant Commercial Insurance was not the carrier on the date of accident based upon the documentary evidence. However, the JCC could not dismiss with prejudice claims against Ascendant Claims Services in the absence of documentation regarding the relationship between Ascendant Commercial Insurance and Ascendant Claims Services, if any.
Summary: The JCC found Ascendant Commercial Ins was not the carrier on the date of accident and based this finding upon the affidavit of the director of underwriting for Ascendant Commercial Insurance who averred that the employer did not have coverage with Ascendant Commercial Insurance until subsequent to the alleged work accident and injury. The JCC also reviewed the proof of coverage page from the Florida Department of Financial Services and noted that the claimant’s counsel, although objecting to the motion, filed no response.
However, the JCC could not dismiss with prejudice claims against Ascendant Claims Services in the absence of documentation regarding the relationship between Ascendant Commercial Insurance and Ascendant Claims Services, if any.
John O’Connor v. Indian River County BCC/Johns Eastern Company, Inc.
JCC Dietz; Sebastian-Melbourne District; Order Date: September 30, 2015
OJCC Case: 15-003598RLD; D/A: 01/10/2015
Claimant’s Counsel: Kristine Callagy; Employer/Carrier Counsel: Mark E. Hill
Briefly: PREVAILING PARTY COSTS – JCC Dietz ordered the claimant to reimburse the Employer/Carrier $538.20 in taxable costs as the Employer/Carrier is the prevailing party when the claimant dismissed its own action. However, the JCC denied the Employer/Carrier’s request for costs of investigation and testing.
Summary: The JCC awarded the Employer/Carrier prevailing party costs and found that the Employer/Carrier is the prevailing party if the claimant dismisses its action. The JCC noted that orders entered at a later date may entitle the claimant to prevailing party costs. This is the natural outcome of issues that are dealt with and resolved on a piecemeal basis, such as in workers’ compensation.
However, in the absence of authority to support a finding that investigation and testing constitute a taxable cost, the JCC denied the Employer/Carrier’s request to obtain prevailing costs of the industrial hygienist’s testing and investigation which were never placed into evidence. The JCC noted the industrial hygienist’s costs were incurred while investigating and testing for mold. The JCC found that the Employer/Carrier did not meet the burden of establishing these charges are related specifically to the claimant, as opposed to dealing with environmental issues that relate to all employees working at the location.
Ronald Matheny v. Indian River Fire Rescue/Johns Eastern Company
JCC Dietz; Sebastian-Melbourne District; Order Date: September 30, 2015
OJCC Case: 14-029102RLD; D/A: 11/16/2014
Claimant’s Counsel: Kristine Callagy; Employer/Carrier Counsel: Mark E. Hill
Briefly: PREVAILING PARTY COSTS – JCC Dietz awarded taxable costs to the Employer/Carrier to be paid by the claimant for depositions transcripts, but denied the Employer/Carrier’s request for costs of investigation and testing in the amount of $22,805.78.
Summary: The testing was conducted by the Employer/Carrier by an industrial hygienist who monitored air samples in the location of the claimant’s work. The claimant argued the Employer/Carrier’s testing was never proven to be related to the claimant’s claim as opposed to work the county was doing at multiple locations to serve as many as seventy (70) claims. The JCC found that the Employer/Carrier did not meet the burden of establishing that these charges are related specifically to the claimant, as opposed to dealing with the environmental issues that would impact all of the employees working at this location.
Leslie E. Todd v. Quest Diagnostics/Travelers Insurance
JCC Rosen; St. Petersburg District; Order Date: September 30, 2015
OJCC Case: 14-018105SLR; D/A: 05/06/2014
Claimant’s Counsel: T. Lee Bodie; Employer/Carrier Counsel: Donald S. Bennett
Briefly: CAUSAL RELATIONSHIP – JCC Rosen denied the claim for compensability of the claimant’s neck, back, right arm, right leg and headaches and accepted the opinion of the Expert Medical Advisor that these were not related to the industrial accident.
Summary: The JCC appointed G. E. Vega as the Expert Medical Advisor to resolve the conflicts in the opinions of Dr. Zak and Dr. Companioni, the IME physicians obtained by the parties. Dr. Vega testified that the claimant sustained an “interval worsening” of the C5-6 disk following the industrial accident, but that the major contributing cause of the need for medical care and treatment for the neck condition was related to the pre-existing condition. Dr. Vega opined that the workplace injury is not the major contributing cause of the employee’s need for medical treatment in light of the pre-existing medical conditions and that no medical care or treatment was necessary as a result of the compensable injury.
Victor Ocampo-Martinez v. Heritage Drywall Company/Auto Owners
JCC Rosen; St. Petersburg District; Order Date: September 30, 2015
OJCC Case: 11-027310SLR; D/A: 09/10/2011
Claimant’s Counsel: Michael Winer; Employer/Carrier Counsel: Adam C. Muth
Briefly: ORDER TO SHOW CAUSE – JCC Rosen vacated the previously issued order to show cause requiring the claimant to show good cause by written response as to why sanctions, including attorney’s fees and costs, should not be imposed for claimant’s failure to attend the mediation.
Summary: JCC entered an order to show cause allowing the claimant ten days to submit in writing good cause as to why an order as to sanctions, attorney’s fees and costs should not be imposed on the claimant for failure to attend mediation. The claimant filed a response and moved to vacate the order to show cause. The pleadings filed clearly showed the claimant was deported from the United States to Mexico and is currently unable to re-enter the United States. Although no evidence was submitted as to why the claimant cannot regain entry to the U.S., the JCC relied on representations in the pleadings filed on behalf of the claimant.
The JCC continued the state mediation and final hearing and allowed the claimant and the representative of the Employer/Carrier to appear telephonically at the state mediation.
Mary Jane Douglas v. Zipz’s N.Y. Pizza Company
JCC Basquill; West Palm Beach District; Order Date: September 30, 2015
OJCC Case: 14-026451PMB; D/A: 10/25/2014
Claimant’s Counsel: Michael J. Celeste, Jr.; Employer/Carrier Counsel: William R. Foman
Briefly: TEMPORARY DISABILITY BENEFITS – JCC Basquill awarded four weeks of temporary total disability benefits plus additional temporary partial disability benefits and accepted the medical evidence presented by the claimant over that of the Employer/Carrier.
Summary: The JCC accepted the opinions of Dr. Simon, the claimant’s IME physician, over that Dr. Zeide on the grounds that Dr. Simon performed a thorough examination of the claimant and actually reviewed the lumbar films and deposition testimony of Dr. McNabb, chiropractor, who saw the claimant before the date of accident for prior neck pain. The JCC found that Dr. Zeide never reviewed the actual MRI films, never read Dr. McNabb’s deposition and relied only on Dr. McNabb’s report.
The JCC found that Dr. Zeide erroneously opined that the claimant suffered previous back pain which was contradicted by Dr. McNabb himself in his deposition. The JCC accepted Dr. Simon’s opinion that the claimant is not at maximum medical improvement, that she has work restrictions, and that she requires medically necessary treatment as a result of the industrial accident which is indeed the major contributing cause of her complaints.