FL Case Law Summaries – 10/30/15
BY:
JCC Orders
William Rayburn v. Century Rain Aid Corp./Travelers Insurance
JCC Lorenzen; Tampa District; Order Date: October 28, 2015
OJCC Case: 14-015872EHL; D/A: 8/24/1988
Claimant’s Counsel: Lawrence Anzalone
Employer/Carrier’s Counsel: Anne K. Dinan
Briefly: ERECTILE DYSFUNCTION; OPIOID MEDICATION– JCC Lorenzen ordered the Employer/Carrier shall pay the bills for erectile dysfunction and Opana, or its generic equivalent.
Summary: Dr. Martin, an authorized physician, prescribed Opana (oxymorphone) for pain management due to the claimant’s compensable injury. Dr. Martin testified the claimant’s compensable back injury and opioid medication he prescribed for the compensable back injury are two of several factors causing claimant’s erectile dysfunction and need for medication for this condition.
The JCC rejected the Employer/Carrier’s IME physician, Dr. Maniscalco’s, opinion, that the claimant only required over-the-counter anti-inflammatory medication for pain management. The JCC noted Dr. Maniscalco’s opinion was not based on a physical examination and Dr. Maniscalco provided no opinion regarding claimant’s erectile dysfunction.
Randolph Warren v. PaceSetter Personal Services/Liberty Insurance Company & ACE USA
JCC Lorenzen; Tampa District; Order Date: October 28, 2015
OJCC Case: 15-016693EHL; D/A: 6/1/2015
Claimant’s Counsel: William H. McKnight
Employer/Carrier’s Counsel: James F. Kidd
Briefly: ADVANCE – JCC Lorenzen denied the claimant’s Motion for Advance and found the claimant did not establish any of the qualifying factors for an advance.
Summary: The JCC noted that in order to be entitled to an advance, an injured employee must show he has not returned to work in the same or equivalent employment and has a substantial loss of wages, substantial loss of earning capacity, or an impairment. Additionally, the employee must establish that there is some nexus between the injury and the need for the advance.
Although the JCC was able to observe a scar on the claimant’s foot and noted the claimant complained of pain when on his feet, the JCC was not able to determine that the claimant had an anatomical or functional abnormality to support a finding that the claimant had an actual or apparent impairment.
The JCC found that the claimant had returned to the same or equivalent employment, both with the employer and then with a subsequent employer, and did not have a substantial loss of earning capacity. The JCC also found that the claimant’s current employment provides him with equivalent earnings and that he suffered no actual wage loss.
Zacarias Blanco v. Sedano’s Supermarket/OptaComp
JCC Kerr; Miami District; Order Date: October 28, 2015
OJCC Case: 10-021518MGK; D/A: 2/10/2009
Claimant’s Counsel: Monica De Feria Cooper
Employer/Carrier’s Counsel: Luis Estrada
Briefly: ENTITLEMENT TO ATTORNEY’S FEE – JCC Kerr found the carrier agreed to provide the requested medical benefits 47 days after it received the Petition for Benefits and the claimant’s attorney was entitled to an Employer/Carrier-paid attorney’s fee.
Summary: On November 21, 2014, claimant filed a Petition for Benefits requesting a follow-up appointment with Dr. Young. On January 23, 2015, a response to the Petition for Benefits was issued advising of a follow-up appointment with Dr. Young was scheduled for February 9, 2015. The Employer/Carrier denied fee entitlement on the grounds that the Petition for Benefits was not ripe, due, or owing on the day filed. According to the Employer/Carrier, the claimant had a quarterly appointment with Dr. Young and had just attended an appointment and was not due for another follow up appointment until mid-January.
The JCC found that the Employer/Carrier first informed the claimant of the follow-up appointment with Dr. Young 47 days after receiving the Petition for Benefits and, accordingly, claimant’s attorney is entitled to an attorney’s fee on this issue.
Beverly Heath v. Precisionaire of Florida, Inc./Gallagher Bassett Services, Inc.
JCC Sojourner; Lakeland District; Order Date: October 28, 2015
OJCC Case: 06-035775MES; D/A: 6/2/2006
Claimant’s Counsel: Pat T. DiCesare
Employer/Carrier’s Counsel: Claude M. Harden
Briefly: MAJOR CONTRIBUTING CAUSE; APPORTIONMENT – JCC Sojourner found the Expert Medical Advisor’s opinion on major contributing cause is presumed to be correct. The EMA physician opined that the injury was the major contributing cause of the claimant’s current neck complaints, although the claimant did have unrelated degenerative changes.
Summary: The JCC accepted the opinion of the EMA physician, Dr. Broom, on the issue of major contributing cause and noted that Dr. Broom opined that if the claimant was determined to be a surgical candidate, that the accident injury would be the major contributing cause of the need for that surgery.
The JCC found that no evidence was offered to support an apportionment defense.
Vincent Sansone v. Frank Crum/Frank Winston Crum Insurance, Inc.
JCC D’Ambrosio; West Palm Beach District; Order Date: October 28, 2015
OJCC Case: 15-000982MAD; D/A: 1/14/2015
Claimant’s Counsel: Martha Fornaris
Employer/Carrier’s Counsel: Paul Luger
Briefly: ENTITLEMENT TO ATTORNEY’S FEES – JCC D’Ambrosio denied the Verified Petition for Attorney’s Fees and found that the requested benefits were paid within 45 days of the carrier’s receipt of the Petition for Benefits.
Summary: The JCC found that the carrier timely paid the requested hospital bills within 45 days of its receipt of the bills.
The JCC rejected the claimant’s argument that attorney fee entitlement attaches because the carrier failed to respond to the Petition for Benefits within 14 days under F.S. §440.192(8). The JCC found this argument ignores the language of F.S. §440.34(3) which states, “attorney’s fees shall not attach under this subsection until thirty days after the date the carrier receives the Petition.”
The JCC noted that, although the carrier initially denied the Petition for Benefits, the carrier rescinded their denial at a time when there was no responsibility of the claimant for payment of the bills as the carrier agreed to pay the bills upon receipt of the proper billing forms.
Maikel Adrian Rodriguez v. USA Bouquet, LLC/AmTrust North America of Florida
JCC Kerr; Miami District; Order Date: October 28, 2015
OJCC Case: 15-009051MGK; D/A: 1/31/2015
Claimant’s Counsel: Jose J. Larraz
Employer/Carrier’s Counsel: Andrew R. Borah and Joseph Kessler
Briefly: AUTHORIZATION OF ORTHOPEDIST – JCC Kerr denied the claim for authorization of an orthopedist and found the claimant did not meet his burden of proof to show that the Employer/Carrier’s authorization of Dr. Ringler, podiatrist, did not satisfy the claim for an orthopedist.
Summary: The claimant requested authorization of an orthopedic specialist. In response, the Employer/Carrier authorized Dr. Adam Ringler, podiatrist, and claimant treated with Dr. Ringler in lieu of an orthopedist for a period of over eight months.
The JCC found the only medical opinion offered as evidence came from the emergency room physician who testified that a podiatrist was adequately qualified to treat the claimant’s ankle injury. The JCC further found the claimant introduced no medical evidence to support his claim, only claimant’s own deposition testimony which was insufficient as a lay witness.
Marie C. Horacius v. Orange Lake Resorts/Pennsylvania Manufacturers Association
JCC Pitts; Orlando District; Order Date: October 28, 2015
OJCC Case: 13-011345NPP; D/A: 4/12/2013
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Christopher E. Dennis
Briefly: PREVAILING PARTY COSTS – JCC Pitts awarded prevailing party costs to be paid by the claimant to the Employer/Carrier.
Summary: The JCC awarded prevailing party costs to the Employer/Carrier following a final compensation order wherein the JCC found the claimant made false, fraudulent or misleading statements for the purpose of securing workers’ compensation benefits.
Although the claimant did not challenge any of the requested costs in the verified response to the motion, the JCC analyzed each of the requested costs and found them to be properly taxable under the uniform guidelines. Costs ordered to be reimbursed to the Employer/Carrier included a court reporter charge for claimant’s deposition and other necessary depositions, fees for obtaining an IME, costs to obtain relevant medical records, and the costs to serve subpoenas upon the claimant to secure her attendance at the Final Hearing.
Suzanne Ham v. Computer Science Corp./American Zurich Insurance Company
JCC Winn; Pensacola District; Order Date: October 28, 2015
OJCC Case: 14-021763NSW; D/A: 10/7/2013
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Jonathan Walker
Briefly: MOTION TO ENFORCE SETTLEMENT – JCC Winn denied the Employer/Carrier’s Motion to Enforce Settlement Agreement and found the Employer/Carrier failed to carry its burden of establishing a meeting of the minds, or mutual or reciprocal assent to a certain and definite proposition.
Summary: It was noted that the claimant appeared via telephone at the mediation. The JCC agreed with the claimant that she did not sign the mediation agreement. This fact was also confirmed by the claimant’s former counsel.
The JCC noted that the mediation agreement and claimant’s signature thereon was the only evidence presented as to the existence of a settlement agreement having been reached and since the JCC found the claimant did not sign such agreement, there is no evidence of a valid, binding settlement agreement.