FL Case Law Summaries – 10/26/15
BY:
Joshua C. Nelson, Former Counsel of the Claimant, Mahnaz Redaei v. Pharmerica/Specialty Risk Services, Inc.
Appeal of the order of JCC Lorenzen; Order Date: October 22, 2015
Case: 1D15-1582; D/A: 10/29/2001
Appellant’s Counsel: Richard W. Ervin
Appellee’s Counsel: Ben H. Cristal and Michael L. Cantrell
Briefly: ATTORNEY’S FEES – The 1st DCA reversed JCC Lorenzen’s order denying claimant’s Motion to Strike Employer/Carrier’s untimely response to the Appellant’s Petition for Attorney’s Fees and Costs. The DCA held that the Employer/Carrier failed to establish good cause for late filing of their response to the Petition for Attorney’s Fees and that the JCC had no discretion to reduce the amount of the claim for attorney’s fees and costs.
Summary: At the trial level, claimant’s former counsel filed a Motion to Strike Employer/Carrier’s untimely response to the Petition for Attorney’s Fees and Costs. The JCC found that the Employer/Carrier untimely and inadvertently filed the response to the Petition for Attorney’s Fees. The JCC recognized that mere inadvertence is not generally good cause to excuse untimely performance of a mandatory act, nevertheless, she denied the Motion to Strike Employer/Carrier’s response.
The 1st DCA held that Rule 60Q-6.124(3)(b) required the JCC to accept the allegations and the Motion for Attorney’s Fees and Costs as true on the grounds the Employer/Carrier failed to establish good cause for filing their response untimely.
Additionally, the DCA affirmed the JCC’s denial of an award for any of the paralegal time based upon the review of the itemization attached to the Verified Petition which did not make it clear what time was clerical and what time, if any, was “non-clerical and meaningful legal support.”
JCC Orders
Joan Ann Anastos v. Prather & Company, Inc./Zenith Insurance Company
JCC Weiss; Ft. Myers District; Order Date: October 22, 2015
OJCC Case: 15-014753JAW; D/A: 7/25/2014
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Robert Osburn
Briefly: ORDER DENYING WASHOUT SETTLEMENT – JCC Weiss denied a Joint Petition for Lump-Sum Settlement without prejudice on the grounds that there is no evidence the claimant reached maximum medical improvement.
Summary: Based upon the claimant’s testimony and review of the Joint Petition for Lump-Sum Settlement along with the attachments, the JCC found that the claimant has not reached maximum medical improvement as the only evidence the claimant was placed MMI was from a date three months before the claimant underwent shoulder surgery.
Victor Guzman v. McDonald Construction Corp./RetailFirst Insurance Company and Bridgefield Employers Insurance Company
JCC Massey; Tampa District; Order Date: October 22, 2015
OJCC Case: 08-010881MAM; D/A: 12/7/2005
Claimant’s Counsel: Bradley Smith
Employer/Carrier’s Counsel: Curt Harbsmeier
Briefly: MEDICAL BENEFITS – JCC Massey denied the claim for authorization of a Genium prosthesis on the grounds that it is not medically necessary in light of the prescription for a new C-Leg.
Summary: The industrial accident resulted in the claimant’s left leg being amputated above the knee. The claimant’s authorized orthopedic specialist, Dr. Herscovici, and authorized pain management specialist, Dr. Batas, recommended that the claimant be provided with a new C-Leg which was authorized and offered to the claimant. The claimant declined the C-Leg and requested a Genium Prosthesis.
The JCC found that both Dr. Batas and Dr. Herscovici have opined unequivocally that the Genium Prosthesis is not medically necessary. The JCC found there was no medical opinion to the contrary and disagreed with the claimant that the medical testimony can and should be interpreted in a different way.
The JCC also rejected the claimant’s argument that the Employer/Carrier waived their right to contest medical necessity by operation of F.S. §440.13(3)(d). The JCC found that this argument was raised for the first time in the claimant’s trial summary filed two days before trial and deprived the Employer/Carrier of a proper and timely notice. The JCC found the Employer/Carrier was materially prejudiced by its inability to prepare a defense to this argument.
Andrew Junod v. State of Florida DOC-NW FL Reception Center Annex/Division of Risk Management
JCC Roesch; Panama City District; Order Date: October 22, 2015
OJCC Case: 14-028933LAR; D/A: 4/19/2010
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Colleen Ortiz
Briefly: PRESUMPTION UNDER F.S. §112.18; STATUTE OF LIMITATIONS – JCC Roesch granted the claim for compensability of coronary heart disease and acute myocardial infarction via the presumption.
Summary: The claimant is a corrections officer who suffered a heart attack in 2010 at home, following his usual work shift. The JCC stated that the question to be addressed is when the claimant knew or should have known his heart condition arose out of work performed in the course and scope of employment. The JCC found that the claimant’s testimony was persuasive that he was not aware that his heart condition could be deemed an injury arising out of work until November 2014 when he was speaking with a co-worker who suggested to him that his condition was possibly work-related.
The JCC rejected the Employer/Carrier’s argument that the statute of limitations bars this claim and found he satisfactorily complied with F.S. §440.19(1) by filing his Petition within two years after the date of which he knew or should have known his injury arose out of work performed in the course and scope of employment.
Brandilyn Gunter v. Sun Holdings, Inc. d/b/a Burger King/Helmsman Management Services
JCC Sculco; Orlando District; Order Date: October 22, 2015
OJCC Case: 15-001549TWS; D/A: 10/5/2014
Claimant’s Counsel: Sean P. McCormack
Employer/Carrier’s Counsel: Adam M. Gill and Humberto S. Valdes
Briefly: PENALTIES – JCC Sculco found the claimant is not entitled to penalties under F.S. §440.20(7) based on the Employer/Carrier mailing payment of a $2,000 advance on August 4, 2015, that the Employer/Carrier was ordered to pay on July 27, 2015.
Summary: The JCC noted that F.S. §440.20(7) provides a penalty for payment of “compensation” payable under the terms of an award made more than seven days after it becomes due. However, the JCC found that statute was inapplicable under the present situation because an advance payment is not “compensation due” a claimant. The JCC explained that advance orders are analogous to washout settlement orders for represented claimants, which are not considered “an award of compensation” for purposes of penalties.
However, the JCC noted that pursuant to Rule 60Q-6.125, the JCC has a wide variety of possible sanctions that can be imposed on a party or attorney for failure to comply with any order of the judge.
Carol Darnell, for Dennis Darnell (deceased) v. Hillsborough County/Gallagher Bassett Services, Inc.
JCC Spangler; Tampa District; Order Date: October 22, 2015
OJCC Case: 13-001063EDS; D/A: 7/28/1981
Claimant’s Counsel: Manuel Franco
Employer/Carrier’s Counsel: Timothy D. Wolf
Briefly: ATTORNEY’S FEES – JCC Spangler awarded an attorney’s fee at the rate of $225 per hour.
Summary: The JCC found that claimant’s counsel successfully prosecuted various claims. The claimant requested reimbursement of approximately 97 hours of productive attorney time. However, the JCC found from the testimony presented by the claimant that approximately ten hours of attorney time is being allocated to the prosecution of the three Petitions for Benefits at issue. The JCC awarded 30 hours of attorney time for prosecution of these claims at an hourly rate of $225.
In determining an hourly rate, the JCC found that as a general consideration, the workers’ compensation law is considered as one of the most complex statutes and areas of the law being practiced in the state, and that was particularly on display in this case wherein the law underlying the facts of the case is over 35 years old and was altered over 25 years ago.
The JCC also ordered an additional 20 hours of attorney time for a successfully prosecuting the claim for entitlement to attorney’s fees.
Maria Ines Zegarra v. D&A Building Services, Inc./Travelers Insurance
JCC Condry; Orlando District; Order Date: October 22, 2015
OJCC Case: 08-025991WJC; D/A: 9/30/2007
Claimant’s Counsel: Jose M. Carrion and Monte Shoemaker
Employer/Carrier’s Counsel: Thomas H. McDonald
Briefly: PERMANENT TOTAL DISABILITY BENEFITS; APPORTIONMENT – JCC Condry awarded permanent total disability benefits and denied the apportionment defense.
Summary: The JCC accepted the testimony of the claimant’s vocational expert, Ms. Pennachio, as more persuasive than the employer/carrier’s vocational expert, Dr. Pinder, when considering the claimant’s physical restrictions and vocational factors regarding the claimant’s return to suitable employment.
The JCC found that the Employer/Carrier’s argument that there is no objective evidence supportive of the work restrictions used is flawed as the physical evidence of injury has been clearly established by examination findings and diagnostic test results revealing disk protrusions at L5-S1 and bulges at L3-4 and L4-5. The JCC pointed out that Ms. Pennachio relied on restrictions from various physicians regarding the claimants’ chronic pain attributable to the compensable industrial injury.
The JCC found that the claimant has established that she more likely than not is unable to perform even sedentary work within a fifty mile radius of where she resides and is permanently and totally disabled when considering her work restrictions combined with vocational factors.
The JCC denied the apportionment defense on the grounds that the Employer/Carrier produced no direct evidence of a pre-existing permanent impairment or disability, nor argued how the presented evidence supports such an apportionment claim.
Maria Ferreyra v. Metro-Dade County and Miami-Dade County Risk Management
JCC Kerr; Miami District; Order Date: October 22, 2015
OJCC Case: 98-011352CMH; D/A: 5/7/1998
Claimant’s Counsel: Robert Krebs
Employer/Carrier’s Counsel: Lynda Slade
Briefly: SECOND OPINION; FUNCTIONAL CAPACITY EVALUATION– JCC Kerr denied the claim for a second opinion with an orthopedist to address work restrictions and denied the claim for a functional capacity evaluation. The JCC found there was no legal basis for an orthopedic opinion purely to address work restrictions and that there was no evidence that a functional capacity evaluation was recommended by an authorized treating physician.
Summary: The claimant requested a second opinion with an orthopedist on the grounds that the claimant’s present authorized orthopedic physician refuses to recommend a functional capacity evaluation. The JCC noted that a prior compensation order was entered in 2007 wherein the JCC found the claimant had permanent work restrictions and awarded palliative care for the claimant’s low back injury. The JCC found that these findings stand as the law of the case.
The JCC found that the claimant’s present authorized treating physician has no obligation to provide new work restrictions as there is no evidence in a change in condition or any intervening act or accident that would require modification of a prior order.
Further, the JCC found there is no evidence of a referral for a functional capacity evaluation from an authorized treating physician.
Karen Klingelhofer v. Southeast Personnel Leasing, Inc./Packard Claims Administration
JCC Rosen; St. Petersburg District; Order Date: October 22, 2015
OJCC Case: 15-014770SLR; D/A: 4/28/2015
Claimant’s Counsel: Stacy Ortiz
Employer/Carrier’s Counsel: Warren K. Sponsler
Briefly: ATTORNEY’S ATTENDANCE AT IME – JCC Rosen ordered that the claimant shall attend an IME and that the attorneys for either or both parties shall be allowed to attend per the guidelines of the order. The JCC ordered that the Employer/Carrier shall be responsible for providing a court reporter to transcribe the examination process.
Summary: The Employer/Carrier filed a Motion to Compel the claimant to attend an IME and the claimant filed a Motion for Protective Order to prevent the Employer/Carrier’s attorney from attending the Independent Medical Examination.
The JCC found that the claimant did not provide evidence to conclude that the attorney for the Employer/Carrier would be unduly distracting or disruptive of the independent medical examination. Instead, the attorney for the Employer/Carrier advised the court that the doctor is agreeable to having both attorneys in the examination room during the IME process. The JCC reviewed various DCA opinions and found that by allowing a videographer, a court reporter and/or attorney for the claimant to be present in the examination room during the IME, it should follow as part of due process that an attorney for the Employer/Carrier should also be allowed in the examination room during the examination process, particularly since it is the Employer/Carrier’s independent medical examiner’s examination.
The JCC did require certain restrictions including that neither attorney shall speak to the doctor or the claimant during the examination.
Terry Sutherland v. Boca Raton Regional Hospital/PMA Insurance Company
JCC D’Ambrosio; West Palm Beach District; Order Date: October 22, 2015
OJCC Case: 14-004413MAD; D/A: 10/7/2013
Claimant’s Counsel: Jeffrey Friedman
Employer/Carrier’s Counsel: Jeffrey Marks
Briefly: MAJOR CONTRIBUTING CAUSE – JCC D’Ambrosio found the claimant sustained a compensable low back and hip injury arising out of the course and scope of employment and found the Employer/Carrier waived their right to deny compensability of the lumbar spine and hip injuries.
Summary: The Employer/Carrier raised the defense of major contributing cause. The JCC rejected this defense and found there was no evidence that the claimant’s pre-existing lumbar condition was disabling at the time of his work accident. The JCC accepted the opinion of the claimant’s IME, Dr. Robert Simon, that the cause of the claimant’s anatomical condition is irrelevant when the claimant comes to have pain after a clearly identifiable accident, and it is the pain which requires treatment.
Additionally, the JCC noted that the carrier’s denial of compensability of the injuries was raised more than 120 days after the initial provision of compensation benefits. The JCC found, pursuant to F.S. §440.20(4), the Employer/Carrier waived the right to deny compensability.