FL Case Law Summaries – 10/22/15
BY:
1st DCA Orders
Rosa Estela Rubio v. Gymboree Corporation/Gallagher Bassett Services, Inc.
DCA Case #1D15-2685; Petition for Writ of Certiorari
Order Date: October 20, 2015
Appellant’s Counsel: Mark L. Zientz
Appellee’s Counsel: H. George Kagan
Briefly: EXPERT MEDICAL ADVISOR – The 1st DCA denied the claimant’s Petition for Writ of Certiorari and held that, even absent a request from a party, a JCC can – and under the plain terms of F.S. §440.13(9)(c) and §440.25(4)(d), must – appoint an Expert Medical Advisor if a disagreement in medical opinions exists. The DCA also held that the JCC did not depart from the essential requirements of law when extending the hearing beyond the 210-day deadline in order to appoint an Expert Medical Advisor.
Summary: The DCA held the claimant failed to demonstrate that the JCC departed from the essential requirement of law and denied the Petition for Writ of Certiorari.
The DCA noted that the Employer/Carrier filed its Motion for Expert Medical Advisor only eight days before the final hearing and the claimant restricted his argument to the timeliness of the JCC’s appointment of the EMA. The DCA also noted its prior holding that, absent a timely request, a party cannot raise as error on appeal the JCC’s failure to appoint an EMA, Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So. 2d 355 (Fla. 1st DCA 1998).
Based on the plain meaning of F.S. §440.13(9)(c) and §440.25(4)(d), the DCA held that, even absent a request from a party, a JCC must appoint an Expert Medical Advisor if a disagreement in the medical opinions exists. Under these circumstances, the DCA stated that the JCC could have, in effect, passed on the E/C’s motion for EMA, but he was not required to do so as a matter of law.
The DCA explained that the statutory deadline for holding a hearing is not inflexible and a JCC may grant a continuance for good cause shown.
JCC Orders
Christopher C. Njoku v. Diocese of St. Petersburg/Commercial Risk Management
JCC Lorenzen; Tampa District; Order Date: October 20, 2015
OJCC Case: 14-017938EHL; D/A: 11/5/2012
Claimant’s Counsel: Bradley Smith
Employer/Carrier’s Counsel: Gwen Jacobs
Briefly: MISREPRESENTATION DEFENSE– JCC Lorenzen found the claimant did not misrepresent his condition in order to obtain workers’ compensation benefits. The JCC explained it was reasonable the claimant might not remember the accident ten years later at a doctor’s office visit, or might consider it irrelevant after he told the Employer/Carrier about it. Further, the JCC found the surveillance did not demonstrate the claimant misled his doctors.
Summary: The JCC found that the claimant did, in fact, inform the Employer/Carrier of his prior accident and, although the claimant failed to reveal this accident on the patient intake form to his treating physician or to the IME physician, the explanation that he forgot about it was accepted by the JCC.
With regard to surveillance, the JCC accepted the claimant’s testimony that he performed even heavier physical activities than shown on the surveillance tape the year after the accident, when he continued working for the employer.
The JCC found factually the quality of the evidence was insufficient to sustain the Employer/Carrier’s burden of proof that the claimant engaged in any conduct prohibited by F.S. §440.105(4).
Vincent DePascale v. Palm Beach County Fire Rescue/Preferred Government Claims Solutions
JCC Punancy; West Palm Beach District; Order Date: October 20, 2015
OJCC Case: 15-004903SHP; D/A: 11/23/2014
Claimant’s Counsel: Michael Clelland
Employer/Carrier’s Counsel: Lyle Platt
Briefly: PRESUMPTION UNDER F. S. §112.18 – JCC Punancy granted the claim for compensability of the claimant’s heart disease and applied the presumption under F.S. §112.18(1).
Summary: JCC Punancy found that the claimant is a member of a protected class, suffers from a protected condition, underwent and passed a pre-employment physical without any evidence of the condition claimed, and that the condition resulted in disability.
The JCC found the claimant did not meet his burden of proof of proving medical evidence in support of the presumption and, as such, the Employer/Carrier was required to rebut the presumption with “competent evidence.” However, the JCC also found the evidence presented from the Employer/Carrier did not reach to the level of competent evidence needed to overcome the presumption and granted the claim for compensability.
Timothy Becker v. DOW Company/Broadspire
JCC Hill; Miami District; Order Date: October 20, 2015
OJCC Case: 82-000399CMH; D/A: 10/21/1982
Claimant’s Counsel: Stephen B. Wilson
Employer/Carrier’s Counsel: Jennifer L. Hodges
Briefly: RES JUDICATA – JCC Hill denied the Employer/Carrier’s Motion for Summary Final Order raising the defense of res judicata and noted the claimant has been in the workers’ compensation system for 33 years and is still receiving various medical benefits.
Summary: JCC Hill noted that previously in 2001, the claimant sought psychiatric care in an amendment to a pretrial stipulation, but that the claim was eventually voluntarily withdrawn. The JCC found that the claimant should have litigated any perceived need for psychiatric care in the past.
However, the JCC also noted that due to the fluid nature of the claimant’s emotional conditions, the need for care to address such conditions can wax and wane over time. The JCC found that the claimant’s current claim for psychiatric care is based on a 2015 report and represents a new and independent event. In this respect, a current medical referral cannot logically be considered to have been due, ripe, and justiciable.
Wallace Cruz v. American Airlines/Sedgwick CMS
JCC Medina-Shore; Miami District; Order Date: October 20, 2015
OJCC Case: 10-000260SMS; D/A: 9/21/2009
Claimant’s Counsel: Toni Lynne Villaverde
Employer/Carrier’s Counsel: Michael Hernandez
Briefly: STATUTE OF LIMITATIONS – JCC Medina-Shore found that a voluntary authorization of remedial treatment tolled the statute of limitations.
Summary: The JCC found that the Employer/Carrier voluntarily authorized treatment which, in turn, tolled the statute of limitations. The JCC accepted the testimony of the physician with regard to his office practices in obtaining authorization for treatment over the adjuster’s testimony. The JCC found the adjuster did not testify from her personal knowledge of the claim.
Alex Eugene v. Comcast/Liberty Mutual Insurance
JCC Hogan; Ft. Lauderdale District; Order Date: October 20, 2015
OJCC Case: 15-004186GBH; D/A: 5/9/2007
Claimant’s Counsel: Bradley Asnis
Employer/Carrier’s Counsel: Beth T. Koller
Briefly: STATUTE OF LIMITATIONS – JCC Hogan found the Petition for Benefits is barred by the statute of limitations.
Summary: The JCC found the claimant did not file the Petition for Benefits within the statutory time frame. The claimant asserted that the carrier was estopped from raising the statute of limitations defense because the carrier failed to provide the claimant with an information brochure pursuant to F.S. §440.185(4).
The JCC considered the testimony of the claimant and the adjuster and found that, more likely than not, the carrier mailed to the claimant the informational brochure that provided information regarding the statute of limitations. Accordingly, the JCC rejected the claimant’s testimony based upon his memory as less credible than the adjuster’s testimony provided while reviewing the claims file.
Gregory V. Davis v. Labor Ready/ESIS WC Claims
JCC Holley: Jacksonville District; Order Date: October 20, 2015
OJCC Case: 14-024805WRH; D/A: 9/15/2014
Claimant’s Counsel: Jonathan Israel
Employer/Carrier’s Counsel: Morgan A. Indek
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS – JCC Holley both granted and denied temporary partial disability benefits for different periods of time based upon a finding that medical evidence supports the claimant was on work restrictions preventing him from returning to work at his prior ability and that the burden shifted to the Employer/Carrier to show why the claimant should not receive temporary partial disability benefits.
Summary: The Employer/Carrier argued that an October 1, 2014, offer of a light duty job was delivered to the claimant, but that the claimant refused the light duty employment, voluntarily limited his income, and that the industrial accident was not the major contributing cause of the lost earnings. Claimant agreed he did receive the offer of employment, but did not report to work until October 9, 2014, and was informed by the employer that he only had one week to accept the offer. The claimant was advised he would need to contact “corporate” to reissue the offer so the claimant could accept the job offer. Claimant says he never heard back from the Employer.
The JCC found that the claimant did not attempt to comply with the October 1, 2014, offer of employment until October 9, 2014, and denied TPD from 10/2/2014 to 10/8/2014. However, the JCC found that the Employer/Carrier did not sufficiently show the claimant refused employment or that he voluntarily limited his income after October 9, 2014, and awarded TPD for other periods of time.