FL Case Law Summaries – 10/23/15
BY:
JCC Orders
Analays Alvarez Blanco v. Kelly Services, Inc./ESIS WC Claims
JCC Castiello; Miami District; Order Date: October 21, 2015
OJCC Case: 10-013409GCC; D/A: 10/21/2009
Claimant’s Counsel: Pro se; former counsel Cullen J. Lane; former counsel Bram Gechtman; former counsel Monica De Feria Cooper
Employer/Carrier’s Counsel: Sean Conrecode and Dawn Traverso
Briefly: MOTION TO ENFORCE – JCC Castiello granted the Employer/Carrier’s Motion to Enforce Settlement Agreement and found that the claimant was provided with timely notice of the evidentiary hearing on the matter, but chose to disregard that notice. The JCC treated claimant’s failure to appear at the Motion to Enforce Settlement Agreement as an admission that the claimant lacks meritorious grounds to challenge the motion.
Summary: The JCC found that although the claimant did not attend the evidentiary hearing, she was represented by her counsel of record at the time who was noticed of all relevant matters. Thus, the JCC found that in addition to actual written notice from the court, the claimant had notice of the evidentiary hearing through her attorney.
The JCC found that it is well settled that “notice to an attorney or to an attorney’s office… qualifies as notice to the client.” The JCC concluded that the claimant chose to disregard the hearing and, therefore, treated her failure to appear at the Motion to Enforce Settlement Agreement as an admission that the claimant lacks meritorious grounds to challenge the motion. The JCC found that the parties settled the case and described the specific terms of a settlement agreement.
Jose Matamoros v. Modern Business Associates, Inc./Bridgefield Employers Insurance Company
JCC Massey; Tampa District; Order Date: October 21, 2015
OJCC Case: 15-004245MAM; D/A: 1/21/2015
Claimant’s Counsel: Stephen Barbas
Employer/Carrier’s Counsel: Gwen G. Jacobs
Briefly: MANAGED CARE GRIEVANCE PROCEDURE – JCC Massey dismissed the Petition for Benefits on the grounds that the claimant did not exhaust the managed care grievance procedures before filing the Petition for Benefits.
Summary: The parties stipulated and agreed that a valid managed care plan is in existence and governs the claim. The parties also agreed that the claimant received proper and timely notice of the managed care plan and the relevant grievance forms and procedures. On the same date the claimant filed the Petition for Benefits seeking authorization of a recommended surgery, the claimant filed a managed care grievance with the carrier, also requesting authorization of the same surgery. The Employer/Carrier sought dismissal of the Petition on grounds that the claimant failed to exhaust the managed care grievance procedures.
Pursuant to F.S. §440.192(3), the JCC dismissed the Petition for Benefits and found that it is undisputed that the claimant had not exhausted the managed care grievance procedures before filing the Petition for Benefits.
Robbie Lockett, Sr. v. Modern Contractors, Inc./Bridgefield Employers Insurance Company
JCC Lewis; Ft. Lauderdale District; Order Date: October 21, 2015
OJCC Case: 15-019886DAL; D/A: 2/5/2015
Claimant’s Counsel: Jason Pearl
Employer/Carrier’s Counsel: Keith Mann
Briefly: CHILD SUPPORT ARREARAGE – JCC Lewis found that the settlement agreement filed with the court pursuant to F.S. §440.20(11)(d) failed to provide for the appropriate recovery of child support arrearages.
Summary: The JCC found that the settlement allocation did not reflect an accurate outstanding child support arrearage amount and noted that the records of the county clerk of Florida reflect an arrearage for two pending cases and support orders.
The JCC required at least 50% of the claimant’s net settlement to be allocated to the payment of outstanding child support arrearages. Further, the JCC noted that pursuant to Rule 60Q-6.123, the JCC is required to pro rate the child support allocations where more than one current child support order exists. The JCC specified that 47% of the child support arrearage would be allocated to one case and 53% to the other and approved the child support allocations in the pro rata shares as determined by the JCC.
Yvonne Lodge v. Brevard County Water Resources/Preferred Government Claim Solutions
JCC Dietz; Sebastian-Melbourne District; Order Date: October 21, 2015
OJCC Case: 06-006110RLD; D/A: 2/21/1995
Claimant’s Counsel: Meredith Smith
Employer/Carrier’s Counsel: John Gierach
Briefly: ATTORNEY’S FEE – JCC Dietz granted the claimant’s Motion for Attorney’s Fees and Costs as to entitlement for obtaining an IME in a claim involving a 1995 date of accident.
Summary: The JCC found that the Petition for Benefits filed in March 2006 placed the Employer/Carrier on notice of the request for an IME in this claim involving a 1995 accident date. In their response to the Petition, the Employer/Carrier denied further medical care. The claimant then prepared a Motion to Compel IME which was filed over two months after the Petition for Benefits. The IME was eventually obtained.
The Employer/Carrier argued that a Petition for Benefits does not create an obligation to provide an IME. The JCC rejected this argument and found that the failure to provide timely benefits when requested constitutes opposition and delays to the claimant’s rightful entitlement to an IME. The JCC found that the claimant required services of an attorney to obtain this benefit and is entitled to an attorney’s fee and costs for successfully prosecuting the claim for IME.
Eva M. Strawder v. Santa Fe HealthCare/Multi-Line Claims Service
JCC Hill; Gainesville District; Order Date: October 21, 2015
OJCC Case: 08-030646MRH; D/A: 1/30/1989
Claimant’s Counsel: Gary Fernandes
Employer/Carrier’s Counsel: Pamela Foels
Briefly: ATTORNEY’S FEES – JCC Hill granted in part the amended Verified Petition for Attorney’s Fees and Costs. The JCC awarded an hourly rate of $250.
Summary: The claimant’s counsel claimed 170.3 hours obtaining benefits and requested an hourly rate of $250. The Employer/Carrier agreed to the $250 hourly rate, but disputed the hours expended and claimed 59.6 hours were reasonable. After considering each of the objections, the JCC found the claimant’s counsel reasonably expended 116 hours and awarded the $250 hourly rate.
With regard to costs, the JCC found that it was unclear whether copies claimed as taxable costs by claimant’s counsel were reasonably necessary to assist the court in reaching a conclusion and are appropriate for reimbursement. Likewise, the JCC found that the claim for faxes and postage and office expenses should not be reimbursed under the Statewide Guidelines for Taxation of Costs in Civil Actions.
Ruben Rodriquez v. Tallahassee Fire Department/City of Tallahassee
JCC Lazzara; Tallahassee District; Order Date: October 21, 2015
OJCC Case: 14-016085JJL; D/A: 6/20/2014
Claimant’s Counsel: Kristine Callagy
Employer/Carrier’s Counsel: Christopher J. Dubois
Briefly: PREVAILING PARTY COSTS – JCC Lazzara granted prevailing party costs to the Employer/Carrier to be paid by the claimant in the amount of $397.36.
Summary: The JCC found that a final compensation order was entered in favor of the Employer/Carrier which was per curium affirmed by the 1st DCA. The JCC found the Employer/Carrier was the prevailing party in the matter. The JCC was guided by the Statewide Guidelines for Taxation of Costs in Civil Actions and awarded taxable costs with the exception of photocopy, fax, and postage charges. The JCC found that costs advanced for taking depositions, personnel, and medical records are taxable and recoverable.
Karen Klingelhofer v. Southeast Personnel Leasing, Inc./Packard Claims Administration
JCC Rosen; St. Petersburg District; Order Date: October 21, 2015
OJCC Case: 15-014770SLR; D/A: 4/28/2015
Claimant’s Counsel: Stacy Ortiz
Employer/Carrier’s Counsel: Clara Arrington
Briefly: MULTIPLE ADVANCES – JCC Rosen ordered the Employer/Carrier shall advance the claimant $2,000 in a case that was initially accepted as compensable, but has been totally denied and in which a prior advance of $1,500 was paid.
Summary: The JCC evaluated the evidence and found the claimant’s current debt is in excess of $2,000 and that the claimant will use the advance to reduce her bills. The claimant appeared at hearing on crutches which were given to her by her initial physicians during the period of time they were authorized to treat her. The claimant testified she missed work because she was unable to drive due to lack of use of her right leg due to injury and because of the pain medication she was taking. The JCC found that the claimant’s termination, for whatever reason, from her employment is immaterial to a determination of whether she is entitled to the advance. Further, the JCC found the claimant established a plausible nexus between her injury and inability to earn wages by showing an actual impairment based on a doctor’s report that she is temporarily and totally disabled.
The JCC noted F.S. 440.20(12)(d) and rejected the Employer/Carrier’s argument that, because this is an additional advance on top of the initial $1,500 advance, the JCC must include a finding regarding prejudice to the Employer/Carrier. The JCC found that material prejudice to the Employer/Carrier should not be considered as the advance payment presently before the JCC is the first amount of $2,000 in this case. The JCC noted the initial $1,500 advance was agreed to by the parties without JCC approval. Nevertheless, the JCC found insufficient proof that the Employer/Carrier is materially prejudiced by the advance.
Ana Raposo v. Flagler County School Board/Johns Eastern Company
JCC Anderson; Daytona Beach District; Order Date: October 21, 2015
OJCC Case: 14-021931WWA; D/A: 7/2/2014
Claimant’s Counsel: Keith Warnock
Employer/Carrier’s Counsel: Nancy Blastic
Briefly: MAJOR CONTRIBUTING CAUSE; TPD – The JCC accepted the opinion of the claimant’s IME physician, Dr. Kollmer, over that of the authorized treating physician and found that the industrial accident is the major contributing cause of various conditions.
Summary: JCC Anderson accepted Dr. Kollmer’s opinion as the claimant’s IME physician on major contributing cause and on the existence of work restrictions as a result of her work-related injuries. The JCC found Dr. Kollmer’s opinion was more logical and reasonable, given that the claimant did not require treatment prior to the industrial accident and that the MRI report relied upon by the authorized treating physician did not include views of the sacroiliac joint.
The JCC also accepted the claimant’s testimony that she did not receive letters offering employment sent by certified mail to her. Additionally, the JCC found that, even if the claimant had received letters offering employment, there was nothing in those letters suggesting the employer was willing to accommodate her work restrictions. The JCC found the claimant proved the causal connection between her injuries and her loss of wages for the time periods in dispute.