FL Case Law Summaries – 10/29/15
BY:
JCC Orders
Richard E. O’Farrell v. FSIGA/Scotty’s/Commercial Risk Management, Inc.
JCC Massey; Tampa District; Order Date: October 27, 2015
OJCC Case: 92-001019MAM; D/A: 2/20/1992
Claimant’s Counsel: Dennis Palso
Employer/Carrier’s Counsel: James H. Smith
Briefly: MOTION TO ENFORCE SETTLEMENT – JCC Massey granted the Employer/Carrier’s Motion to Enforce Settlement and found the claimant provided full authority and permission to his attorney to settle the workers’ compensation claim.
Summary: An agreement to settle the workers’ compensation claim was reached following a private mediation and the attorneys exchanged letters reflecting the terms of settlement agreement. Subsequently, the claimant failed to execute the settlement documents and the Employer/Carrier filed the Motion to Enforce Settlement. Upon commencement of the hearing, it was determined that claimant’s counsel and the claimant were in adverse positions, and therefore, claimant’s counsel withdrew as counsel of record and the hearing was continued so that the claimant may retain the services of another attorney.
The Judge accepted the testimony of claimant’s counsel at the time the settlement was reached that she had claimant’s full authority and permission to accept settlement on behalf of the claimant. The JCC rejected the testimony of the claimant to the contrary and found the claimant was highly inconsistent, self-contradictory, and lacking in credibility. The JCC found that it was fairly apparent that the claimant agreed to settle his case, possibly in part due to pressure from his wife and daughter, gave his attorney authority to settle the case, but later had second thoughts and attempted to either get out of the settlement or add new terms.
After reviewing the evidence, the JCC found there was a meeting of the minds as to all essential elements of the settlement, with no contingencies.
Makarova Brown v. IPC International/Liberty Mutual Insurance
JCC Humphries; Jacksonville District; Order Date: October 27, 2015
OJCC Case: 11-005508RJH; D/A: 1/7/2011
Claimant’s Counsel: Mark A. Touby and Sylvia Morrow
Employer/Carrier’s Counsel: Jonathan Minchin
Briefly: ONE-TIME CHANGE – JCC Humphries ordered that the Employer/Carrier shall authorize Dr. Kenneth Hodor as the claimant’s change of physician.
Summary: The claimant sought a one-time change of physician pursuant to F.S. §440.13(2)(f). The JCC rejected the Employer/Carrier’s argument that the claimant’s request for a specific physician rendered their request ambiguous or that the inclusion of a specific physician had somehow obscured the request for a one-time change.
The JCC found that the carrier did not respond to the request within five days and still had not responded by the day of hearing. The JCC found the claimant was entitled to her selection of physician and selected Dr. Kenneth Hodor.
Sheila Stone v. School Board of Osceola County/Johns Eastern
JCC Pitts; Orlando District; Order Date: October 27, 2015
OJCC Case: 15-006099MPP; D/A: 3/8/2013
Claimant’s Counsel: David Rickey
Employer/Carrier’s Counsel: Pamela Jean Cox and Jodi Kay Mustoe
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Pitts denied the claim for authorization of continued treatment and found the claim for medical care subsequent to attaining maximum medical improvement, including either periodic visits or further evaluations by the authorized doctor, was not established as medically necessary.
Summary: The JCC relied on the case of Echevarria v. Lexor Investments, Inc., 153 So. 3d 991 (Fla. 1st DCA 2015) and noted that some permanent injuries do not require ongoing active treatment, but may require periodic doctor visits to ensure that the compensable injury is not worsening or in need of further evaluation or treatment.
After reviewing the evidence, the JCC found that the claimant did not establish that either periodic visits or further evaluations by the authorized doctor were appropriate or medically necessary for the compensable, non-displaced patellar fracture.
Jose Cruz v. American Airlines/Sedgwick CMS
JCC Kerr; Miami District; Order Date: October 27, 2015
OJCC Case: 12-029348MGK; D/A: 12/3/2012
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Daren Dorminy
Briefly: SANCTIONS – JCC Kerr granted in part and denied in part the Employer/Carrier’s Motion for Sanctions based on alleged actions of claimant’s counsel.
Summary: The Employer/Carrier argued that the actions of claimant’s counsel of sending a court reporter to a consensus IME and presenting additional documents to a physician at deposition without providing copies of the documents to the Employer/Carrier in advance were violations of an agreement of the parties and a prior order of the JCC which required the imposition of sanctions. The carrier also argued that there were multiple attempts to reach counsel for the claimant by email and telephone in the days leading up to the final hearing that were unsuccessful as claimant’s counsel did not respond to any attempts to reach her. Counsel for the claimant withdrew the outstanding Petition for Benefits just hours before the final hearing while counsel for the Employer/Carrier was in route from Orlando to Miami.
Counsel for the claimant argued she did not intentionally violate the JCC’s prior Order in this case and acknowledged that she is extremely busy and did not return phone calls or emails.
The JCC was not persuaded by counsel for the claimant’s testimony and found her actions in obtaining a court reporter for a consensus IME and attempting to provide additional documents to a physician at his deposition without contacting the opposing party were inappropriate and in violation of the Court’s prior order. The JCC did not award sanctions for her failure to return phone calls or emails, but noted he was trouble by the lack of professionalism exhibited by counsel for the claimant.
The JCC concluded that the payment of costs related to the filing and hearing of Employer/Carrier’s emergency Motion in Limine is appropriate as a sanction.
Timothy Treacy v. Memorial Healthcare Systems/Preferred Governmental Claims Solutions
JCC Lewis; Fort Lauderdale District; Order Date: October 27, 2015
OJCC Case: 13-026992DAL; D/A: 9/30/2012
Claimant’s Counsel: Michael Celeste
Employer/Carrier’s Counsel: Michael Riedhammer
Briefly: STATUTE OF LIMITATIONS – JCC Lewis denied the Employer/Carrier’s Motion for Summary Final Order and found the claimant’s Petition was not barred by the expiration of the statute of limitations.
Summary: The claimant filed a Petition for Benefits on July 20, 2015, requesting a determination of compensability and treatment of the claimant’s low back based upon a repetitive trauma theory or accident. The Employer/Carrier asserted that this was a new accident and injury, alleged to have occurred on September 30, 2012, and is barred by the expiration of the statute of limitations.
The JCC found the claimant did not contend he is alleging a new accident or injury, but was merely asserting an alternative “repetitive trauma” theory of compensability of his low back injury which occurred on September 30, 2012. The JCC found that, although the subject Petition for Benefits was filed on July 20, 2015, the claimant previously filed a Petition for Benefits on June 3, 2015, requesting a determination of compensability of medical treatment for the same back injury. The JCC noted that the Employer/Carrier did not raise the expiration of the statute of limitations in their response to the June 3, 2015, Petition and, therefore, when the claimant subsequently filed his Petition on July 20, 2015, seeking benefits for the same injury and date of accident under the repetitive theory, the statute of limitations had been tolled.
Ryan Burks v. Steve Johnson Decorative Floors, LLC/AmTrust North America of Florida
JCC Beck; Sarasota District; Order Date: October 27, 2015
OJCC Case: 14-017840DDB; D/A: 1/13/2014
Claimant’s Counsel: Eric M. Christiansen
Employer/Carrier’s Counsel: Daniel R. Goodman
Briefly: TEMPORARY DISABILITY; WORK RESTRICTIONS – JCC Beck denied the claim for TTD and TPD benefits and found the claimant was under no physical restrictions that would prohibit him from any type of work.
Summary: The accident occurred when the claimant was involved in a motor vehicle accident and the driver’s side mirror dislodged and hit the claimant in the face, causing a rupture and laceration to his left eye globe. Ophthalmologist Dr. Joseph Hegleh performed surgery to repair claimant’s eye. Dr. Hegleh recommended sunglasses for the claimant as some protection because of his photophobia and light sensitivity, especially outdoors.
The JCC found that the claimant was constantly trying to get Dr. Hegleh to provide work restrictions, but Dr. Hegleh did not agree. The JCC found that, according to Dr. Hegleh, instructions to wear sunglasses for light sensitivity are not a restriction on work activities. The JCC rejected the claimant’s testimony that Dr. Hegleh restricted him to indoor-work only. The JCC noted the claimant’s assertion that he is too light-sensitive to work outdoors is at odds with his playing outdoors without sunglasses in a rock band called “Wicked Revolution.”