FL Case Law Summaries – 10/27/15
By:
JCC Orders
Brandy Williams v. Dollar General Corp.
JCC Beck; Sarasota District; Order Date: October 23, 2015
OJCC Case: 13-026754DBB; D/A: 10/24/2010
Claimant’s Counsel: Barbara H. Gormley
Employer/Carrier’s Counsel: Beatriz E. Justin
Briefly: MOTION TO STRIKE – JCC Beck granted the Employer/Carrier’s Motion to Strike opinions of Dr. Howard Goldman and denied claimant’s Motion for Expert Medical Advisor.
Summary: The JCC granted the Employer/Carrier’s Motion to Strike the IME opinion of psychiatrist, Dr. Howard Goldman, offered by the claimant. The Employer/Carrier learned at the deposition of Dr. Goldman that the claimant returned to Dr. Goldman after the IME for two follow-up visits. The Employer/Carrier argued that the claimant is entitled to only one IME and that the IME physician may not provide follow-up care and treatment unless the Employer/Carrier agrees. The Employer/Carrier contended there was no notice provided for the updated evaluations and that Dr. Goldman provided treatment, including prescriptions for medication for the claimant.
The JCC found that the Employer/Carrier properly objected to Dr. Goldman’s opinion at his deposition once it was discovered he had seen and treated the claimant.
Ray Martinez v. Osceola Heritage Park/Berkshire Hathaway Homestate Insurance Company
JCC Pitts; Orlando District; Order Date: October 23, 2015
OJCC Case: 14-022556NPP; D/A: 6/23/2014
Claimant’s Counsel: Jason W. Gumula
Employer/Carrier’s Counsel: Lourdes M. Sancerni
Briefly: ATTENDANT CARE – JCC Pitts awarded attendant care benefits based upon the opinions of the physicians that attendant care was medically necessary and that the Employer/Carrier failed to reasonably investigate the claimant’s need for attendant care or to assist the wife in obtaining the necessary prescription for attendant care.
Summary: After reviewing the medical opinions, JCC Pitts awarded attendant care benefits for the claimant’s psychiatric condition. The JCC found the Employer/Carrier failed to reasonably investigate the claimant’s need for attendant care and that the carrier left it up to the wife to ask the physician to write an attendant care prescription. The JCC noted that a nurse case manager was assigned to the file and attended the medical appointments. The JCC found that the carrier and nurse case manager had the duty to investigate the request for prescriptions from the treating physicians and to discuss the details of the attendant care. There were many issues not addressed by the physicians that the nurse case manager should have investigated, including whether professional or non-professional attendant care was necessary, whether the wife could perform the attendant care services, or whether an outside attendant should be utilized.
The JCC found that in an efficient and self executing system, neither the claimant nor his wife should have been left to their own devices to comply with the statutory requirements in attendant care.
Randy Blackmon v. Thyssen Krupp Elevator/Sedgwick CMS
JCC D’Ambrosio; West Palm Beach District; Order Date: October 23, 2015
OJCC Case: 11-005026MAD; D/A: 1/31/2009
Claimant’s Counsel: Matthew Sosonkin
Employer/Carrier’s Counsel: David E. Evoy
Briefly: PETITION FOR MODIFICATION (PTD) – JCC D’Ambrosio denied the Employer/Carrier’s Petition for Modification and ordered that the Employer/Carrier shall continue to pay permanent total disability benefits to the claimant.
Summary: The JCC found that the evidence failed to support the Employer/Carrier’s position that a change in condition had occurred since the adjudication of permanent total disability benefits on December 6, 2013. The Employer/Carrier relied on the testimony of Dr. Reiter that the claimant was able to return to work full-duty with no restrictions. The JCC found that the Employer/Carrier’s position was not supported by the weight of the evidence including the medical and vocational factors.
The JCC found that Dr. Reiter’s recent deposition testimony was inherently inconsistent with his own office notes reflecting the claimant’s complaints of pain, difficulty with ambulation, and crepitus. The JCC noted that just six weeks prior to the full duty release, Dr. Reiter set the claimant for an MRI due to symptomatic complaints. The JCC found Dr. Reiter placed the claimant at maximum medical improvement with a 5% permanent impairment rating of the total body with permanent work restrictions. The JCC also found that the record is devoid of any vocational evidence to show that the claimant is able to engage in at least a sedentary employment within a 50-mile radius of his residence due to his physical limitations.
Claudio Alvarez-Diveni v. Handyman Home Repair Service of Pinellas, Inc./Valley Forge Insurance Company/CNA
JCC Beck; Sarasota District; Order Date: October 23, 2015
OJCC Case: 14-016513DBB; D/A: 5/30/2014
Claimant’s Counsel: Lisa A. Kalo
Employer/Carrier’s Counsel: April Foster Conye
Briefly: MOTION TO ENFORCE SETTLEMENT – JCC Beck denied the Employer/Carrier’s Motion to Enforce Settlement Agreement and found the evidence did not establish a clear meeting of the minds between claimant’s counsel and the claimant and did not establish a clear and unequivocal grant of authority from the claimant to his attorney to settle the entire claim.
Summary: The JCC found that the claimant did not understand that his entire claim was settled because the day after the settlement offer he was inquiring about medical treatment. The JCC found the following: that the claimant did not agree to settle his claim; the claimant did not understand that his attorney thought he accepted the agreement; and the claimant did not give clear, unequivocal authority to settle. It was clear from the claimant’s testimony that he was confused and the JCC found there was no meeting of the minds regarding the settlement with the claimant.
Lorenzo Greenwich v. Winn-Dixie, Inc./Florida Workers Comp Guaranty Association & Sedgwick CMS
JCC Hogan; Fort Lauderdale District; Order Date: October 23, 2015
OJCC Case: 98-027128GBH; D/A: 11/10/1998
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Isabel Alcocer
Briefly: MEDICAL APPARATUS AND TREATMENT – JCC Hogan denied claims for authorization of a left knee brace, back brace, and spinal cord stimulator on the grounds that the JCC previously denied compensability of the left knee and that the Expert Medical Advisor testified that a back brace and spinal cord stimulator were not necessary and not causally related to the subject accident.
Summary: The JCC found that previously in 2010, the JCC entered an order denying compensability of the claimant’s left knee pain condition. Pursuant to the prior JCC order, authorization of the left knee brace is denied.
The JCC also found that the Expert Medical Advisor, Dr. Friedman, testified that future treatment did not include recommendations for a back brace or spinal cord stimulator. Dr. Friedman explained that the type of pain the claimant was experiencing was localized to the spine area and was not a radiating, nerve root-type pain and that a spinal cord stimulator would not be appropriate or related to the compensable accident.