FL Case Law Summaries – 10/5/15
JCC ORDERS
Pedro Rodriguez v. Olive Garden USA/Liberty Mutual Insurance
JCC Castiello; Miami District; Order Date: October 1, 2015
OJCC Case: 14-001658GCC; D/A: 12/10/2013
Claimant’s Counsel: Ivan Morales; Employer/Carrier Counsel: Henry J. Roman
Briefly: RECOUPMENT; NEURO-PSYCHOLOGICAL TESTING – JCC Castiello reviewed the statute regarding the return of a recoupment or overpayment by an Employer/Carrier, Florida Statute Sec. 440.45(12) and found that the specific statutory language does not compel recovery of an overpayment by installments.
Summary: The JCC found that, pursuant to the Statute regarding return of an overpayment, the employee is liable to repay the sum to the Employer/Carrier or to have that sum deducted from future benefits Florida Statutes Sec. 440.45(12). However, this statutory language does not compel the recovery of an overpayment by installments as argued by the claimant. While the Employer/Carrier would be able to utilize installments to reclaim the precise sum which they deducted, they are not required to utilize that method.
The JCC awarded a psychiatric evaluation to evaluate the relationship between the claimant’s anxiety, grossly observed depression, and emotional issues. The JCC found that it is only after proper psychiatric evaluation that a definitive conclusion can be made with respect to the claimant’s psychiatric condition and how it may or may not correspond to his compensable accident. Accordingly, the JCC found that the need for neuro-psychological testing and care is not ripe for consideration at this time as the claimant must first undergo the proper evaluations with a psychiatrist.
Clifford Griffith v. International Technology/Auto Owners Insurance
JCC Spangler; Tampa District; Order Date: September 30, 2015
OJCC Case: 94-004950EDS; D/A: 04/14/1994
Claimant’s Counsel: Douglas Glicken; Employer/Carrier Counsel: Matthew Jones
Briefly: COMPENSABILITY; CAUSAL RELATIONSHIP – JCC Spangler determined the claimant’s bilateral hip condition, diagnosed as bilateral avascular necrosis, is compensable and related to the 1994 accident.
Summary: The JCC concluded that the greater weight of the medical evidence admitted supports a conclusion that the claimant’s avascular necrosis developed as a result of the compensable injuries he received in the 1994 compensable accident. In making his decision, the JCC noted that there is no dispute that trauma is a known and accepted risk factor in the development of avascular necrosis. The JCC accepted the opinions of Dr. McKnight, the primary care physician who has treated the claimant since the accident, and found that Dr. McKnight is in the best position to evaluate the physical effects of the various injuries the claimant sustained in the accident.
The JCC rejected the medical opinion relied upon by the Employer/Carrier of Dr. Lurate, who concluded the source of the claimant’s condition was unknown. The JCC found that Dr. Lurate did not have a comprehensive set of the records of the claimant’s treatment history. The JCC noted Dr. Lurate’s opinions are not definitive and, at most, are hypothetical in form. Phrases such as “appears to be” are a suggestion, and not a conclusion to be relied upon.
Alternatively, the JCC accepted the claimant’s argument that, effectively, the Employer/Carrier accepted the claimant’s bilateral hip condition as compensable by allowing the condition to be evaluated, diagnostically assessed, and even treated over the course of time in excess of one year.
David M. Baricko v. Barnett Transportation, Inc./York Risk Services Group
JCC Rosen; St. Petersburg District; Order Date: October 1, 2015
OJCC Case: 14-027898SLR; D/A: 08/15/2013
Claimant’s Counsel: John F. Sharpless; Employer/Carrier Counsel: Linda Farrell
Briefly: JCC DISQUALIFICATION – Judge Rosen denied the Motion for Disqualification as legally insufficient on its face and filed untimely.
Summary: Claimant’s counsel filed a Motion for Disqualification of JCC Rosen on September 23, 2015, but the affidavit signed by the claimant in support of the motion was signed and notarized with the date of September 10, 2015. Thus, the JCC found the motion is legally insufficient on its face and that it was filed more than ten days after the claimant’s signed affidavit after discovery of facts regarding the relationship of the undersigned Judge of Compensation Claims and the current attorney for the claimant as asserted in the motion.
The JCC noted that the claimant proceeded as a pro se litigant through proceedings following withdrawal of prior counsel until September 17, 2015, when the claimant’s current attorney filed a Notice of Appearance, and thereafter, on September 23, 2015, filed a Motion for Disqualification with two attached exhibits in support. The JCC cited Rule 60Q-6.125 in Florida Rules of Judicial Administration, Rule 2.330(e) which states: “A Motion to Disqualify shall be filed within a reasonable time not to exceed ten days after discovery of facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling.”
Abelardo Kelzi v. Canvas Vending Unlimited, LLC
JCC Roesch; Panama City District; Order Date: October 1, 2015
OJCC Case: 14-015324LAR; D/A: 06/25/2014
Claimant’s Counsel: Monica DeFeria Cooper; Employer: Jeffrey Jacobs
Briefly: INDEPENDENT CONTRACTOR – JCC Roesch denied the claimant’s Petition for Determination for Compensability and accepted the Employer’s argument that the claimant was not an employee, but was an independent contractor.
Summary: The JCC evaluated Florida Statutes 440.02(15)(d) and found the claimant met various statutory criteria qualifying as an independent contractor. The JCC noted the claimant sold beverages at concerts and controlled the means of selling, and it was the claimant’s responsibility to choose and purchase the beverages he wanted to sell. There was no evidence that the claimant was identified in any way as a representative of the employer.
The claimant candidly acknowledged that he was responsible for his own work and that he worked without supervision. The claimant received a commission and the success or failure of his work as a vendor depended entirely upon the relationship of business receipts to expenditures. The claimant was required to provide equipment or materials he used and he was responsible for the satisfactory completion of the services he performed.
Ela Gonzalez v. McDonald’s/Amerisure Insurance
JCC Kerr; Miami District; Order Date: October 1, 2015
OJCC Case: 12-005404MGK; D/A: 12/06/2011
Claimant’s Counsel: Monica DeFeria Cooper; Employer/Carrier Counsel: William H. Rogner
Briefly: EXPERT MEDICAL ADVISOR – JCC Kerr appointed an Expert Medical Advisor and found that the Motion to Appoint Expert Medical Advisor was filed within a reasonable time after the conflict was discovered and that there was a disagreement in the medical opinions between two physicians.
Summary: Although the notice of conflict was filed just over two weeks after the deposition of the IME Physician and one month after the conflict arose, the JCC found that the Motion for IME or Notice of Conflict filed in this case was timely. In making this determination, the JCC noted there was no bright line test for what period of time is “reasonable” and cited the decision of Palm Springs General Hospital v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997); where raising the issue nineteen days after the dispute became apparent and one week prior to the final hearing was determined to be timely.
JCC Kerr appointed Dr. Kenneth Hoder as the Expert Medical Advisor.
Geraldo Perez v. Encore Construction Company/Encore Construction
JCC Condry; Orlando District; Order Date: October 1, 2015
OJCC Case: 07-023849WJC; D/A: 05/16/2007
Claimant’s Counsel: Francis Mendez; Employer/Carrier Counsel: Jannine Galvez
Briefly: MOTION TO ENFORCE – JCC Condry granted the Motion to Enforce Settlement Agreement and accepted the testimony of Attorney Mendez that his client agreed to the terms of a settlement and signed the mediation agreement to that effect in his physical presence.
Summary: The JCC noted that after the claimant signed the mediation agreement and paperwork with CMS concerning the Medicare Set-Aside agreement, the attorney lost contact with his client. The claimant failed to appear at the evidentiary hearing and to provide any explanation as to why he failed to execute the settlement paperwork.
Dayan Diaz v. Residential Plaza Blue Lagoon/Hartford Fire Insurance Company
JCC Kerr; Miami District; Order Date: October 1, 2015
OJCC Case: 14-022027MGK; D/A: 09/20/2014
Claimant’s Counsel: Ricardo Morales; Employer/Carrier Counsel: Charlotte Zubizarreta
Briefly: MOTION TO ENFORCE – JCC Kerr granted claimant’s Motion to Enforce Settlement, but denied the Employer/Carrier’s Cross-Motion to Enforce Settlement.
Summary: The claimant testified he agreed to settle his case, sign a general release, and not to reapply for employment with the Employer, Residential Plaza Blue Lagoon. However, the claimant testified he did not agree to never reapply for employment with SOI Inc. as alleged by the Employer/Carrier in the Cross-Motion to Enforce Settlement. The claimant testified that he had never heard of SOI, Inc., and believed his employer was Residential Plaza Blue Lagoon. Counsel for the claimant testified the terms of the settlement did not include SOI, Inc.
The JCC found that no evidence was presented regarding whether SOI, Inc., retained counsel as the actual employer, made any payments to the claimant or on his behalf as the actual employer, or that SOI, Inc., stood in the shoes of Residential Plaza Blue Lagoon as the actual employer.
After reviewing the pleadings filed and history of the case, the JCC found that the correct parties to this case are Residential Plaza Blue Lagoon. Further, the JCC found that Counsel for the Employer/Carrier did not represent The Hartford. The JCC concluded that the only party Counsel for the Employer/Carrier had authority to negotiate a settlement on behalf of was Residential Plaza Blue Lagoon.
Ronald W. Paul v. FPL Group/Broadspire
JCC Hogan; Ft. Lauderdale District; Order Date: October 1, 2015
OJCC Case: 15-003781GBH; D/A: 07/30/2014
Claimant’s Counsel: Bradley S. Douglas; Employer/Carrier Counsel: Lizzette M. Francisco
Briefly: COMPENSABILITY; KNEE REPLACEMENT SURGERY – JCC Hogan granted the claim for compensability of the meniscus tear to the claimant’s left knee, but denied authorization of the knee replacement surgery.
Summary: The JCC found that the Employer/Carrier accepted the “accident” as compensable and that the medical records noted a diagnosis of knee and leg strain. The Employer/Carrier’s IME, Dr. Hermida, orthopedic surgeon, opined that the claimant sustained a meniscus tear. The claimant’s IME physician, Dr. Aparicio, diagnosed knee pain, medial meniscus tear, and osteoarthritis of the left knee.
The JCC accepted the opinions of Dr. Hermida and Dr. Aparicio regarding a diagnosis of a meniscus tear as a result of the industrial accident, over the opinion of Dr. Meli who noted that the claimant had significant, severe and chronic pre-existing degenerative osteoarthritis.
With regard to the request for knee replacement surgery, the claimant’s own IME physician, Dr. Aparicio, recommended arthroscopy to the knee to deal with the meniscal tear, but stated that unicompartmental arthroplasty is one step beyond what the claimant really needs. The JCC found that because the claimant is bound by the opinion of his IME provider and his IME provider opined that the requested surgery is not medically necessary, the request for authorization for a knee replacement surgery must be denied.