FL Case Law Summaries – 10/5/16
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JCC ORDERS
Audrey Skidmore v. Seminole County State Attorney’s Office/Division of Risk Management
JCC Sculco; Orlando District; Order Date: September 23, 2016
OJCC Case: 15-008439TWS; D/A: 11/19/2014
Claimant’s Counsel: Thomas A. Vaughn
Employer/Carrier’s Counsel: James T. Armstrong
Briefly: ONE-TIME CHANGE – JCC Sculco ordered the Employer/Carrier to authorize Dr. Richard Smith as claimant’s change of physician pursuant to F.S. §440.13(2)(f), and found there was no attempt to deceive or take advantage of the Employer/Carrier where claimant’s counsel faxed the written request for a one-time change in physician to co-counsel for the Employer/Carrier instead of the Employer/Carrier’s lead attorney.
Summary: In May 2015, Attorney Scott Berglund filed a Notice of Appearance of Co-Counsel for the Employer/Carrier due to Attorney James Armstrong being in the hospital at the time.
On December 3, 2015, counsel for the claimant faxed a letter to Attorney Berglund requesting a change of physician to Dr. Richard Smith pursuant to F.S. §440.13(2)(f). Mr. Berglund testified he did not immediately contact the adjuster upon receipt of the fax because “Jim Armstrong was the attorney handling the file and I was not.” He did instruct his assistant to send a fax request to Mr. Armstrong the day he received it. However, he testified that “unfortunately, it was sent regular mail.”
The JCC noted that claimant’s counsel indicated the letter was sent to Attorney Berglund due to an inadvertent oversight and the JCC accepted his representation that there was no attempt to deceive or take advantage of the Employer/Carrier.
Under these specific circumstances, the JCC found the December 3, 2015, request for a change of physician faxed to Attorney Berglund was effective to trigger the Employer/Carrier’s obligation, and, therefore, the Employer/Carrier’s offer of Dr. Friedman made on December 14, 2015, was not timely. Consequently, the claimant is entitled to select Dr. Richard Smith as the change of physician.
The JCC rejected the Employer/Carrier’s argument that the statute requires a request for a change of physician to be sent to the carrier and not its counsel.
Marlene Napoles v. Kendall Regional Medical Center/Broadspire
JCC Tampa; Massey District; Order Date: September 23, 2016
OJCC Case: 15-013813MAM; D/A: 6/24/2011
Claimant’s Counsel: Mark Touby
Employer/Carrier’s Counsel: Danni Germano
Briefly: PERMANENT TOTAL DISABILITY – JCC Massey granted the claim for permanent total disability benefits and found the claimant satisfied the third prong of the Blake decision by proving work-related physical restrictions, while not alone totaling disabling, preclude the claimant from engaging in at least sedentary employment when combined with vocational factors.
Summary: Here, the claimant is 57 years old, was born in Cuba, and worked as a nurse in the U.S. for sixteen years. She is fluent in Spanish, but claims to speak or understand very little English. The claimant injured her back moving a heavy patient and sustained an L5-S1 disc herniation. She was placed at MMI by Dr. Luis Pagan with a 5% permanent impairment rating and permanent restrictions of no lifting over 20 pounds, occasional bending, occasional lifting, occasional pushing and pulling, occasional squatting and occasional twisting. The claimant returned to work for the Employer performing various modified job duties within her restrictions, but was given a “notice of separation” from her employer and has not worked since then.
The JCC found that pursuant to the opinion of the EMA physician, the work restrictions placed her in a “sedentary” category of work.
The JCC accepted the testimony of the claimant’s vocational expert, James Sullivan, who testified that based on the claimant’s age, education, narrow field of experience, limited English skills, and limited transferrable skills, there are no sedentary jobs appropriate for her and she is essentially unemployable.
The JCC found the testimony of Mr. Sullivan to be more persuasive than the vocational expert who testified on behalf of the Employer/Carrier, Mr. Lopez. The JCC found the computer-generated “vocational alternatives” presented by Mr. Lopez to be less than realistic based on the claimant’s actual skills and experience. The JCC noted that Mr. Lopez either did not know or did not recall certain facts or data which would seem to be important in the analysis and lost credibility when he offered the opinion that the claimant can speak and understand more English than she admits.
William Dustin Earnshaw v. Genesis Healthcare Group, LLC/Oakhurst Center/Broadspire
JCC Hill; Gainesville District; Order Date: September 23, 2016
OJCC Case: 16-000726MRH; D/A: 9/28/2015
Claimant’s Counsel: David Rickey
Employer/Carrier’s Counsel: Thomas Vecchio
Briefly: OCCUPATIONAL DISEASE – JCC Hill denied the claim for compensability of the claimant’s meningitis caused by streptococcus pneumoniae and found there was no persuasive evidence that the claimant’s streptococcus pneumoniae was actually caused by employment conditions characteristic of and peculiar to being a CNA in a nursing home.
Summary: The JCC reviewed the medical evidence and found the testimony was insufficient to establish, without hesitation, that being a CNA in a nursing home does present a particular hazard of contracting streptococcus pneumoniae or that there is a substantially higher incidence of the disease in CNAs working in nursing homes.
The JCC also found uncontested medical evidence supports a finding that streptococcus pneumoniae is an ordinary disease in life and is very common in the community. The JCC found there was no medical evidence that CNAs working in nursing homes contract the disease substantially more frequently than the general public.
Jose Luis Delgado v. City Concrete Systems, Inc./FCCI Insurance Group
JCC Lazzara; Ft. Lauderdale District; Order Date: September 23, 2016
OJCC Case: 14-010793JJL; D/A: 4/23/2014
Claimant’s Counsel: Kevin R. Gallagher & Tara P. Schlairet
Employer/Carrier’s Counsel: Diane B. Hernandez
Briefly: ATTORNEY’S FEES – JCC Lazzara denied approval of the straight stipulation for attorney’s fees of $20,000.00 and found the hourly rate submitted was excessive and would not have been agreed to but for the global settlement, and that the fee agreement resulted in reduced net monies to the claimant.
Summary: The JCC noted that back on August 16, 2015, the court approved fees for a washout settlement for the total sum of $184,250.00, out of which the claimant’s counsel would pay a statutory guideline fee of $19,175.00. The claimant would receive net settlement proceeds of $163,904.50.
Ten months after the washout settlement was consummated, counsel for the Employer/Carrier filed the parties’ straight stipulation for attorney’s fees providing for payment to the Gallagher Law Group of a carrier-paid fee in the amount of $20,000.00 for obtaining benefits. The stipulation valued the secured benefits at $35,437.96.
The JCC found there was nothing in the documents showing the claimant had executed the document or was provided notice thereof as required by Rule 60Q-6.124(2). Also, the JCC found that claimant’s counsel did not attach an affidavit pursuant to Rule 60Q-6.124(2) as required if payment of the fee is excess of the statutory guideline amount. Further, the JCC found the parties did not disclose to the court at the time of the washout that a side fee payable by the carrier was still pending.
The JCC noted that, when asked at the hearing why there was a ten-month delay in filing the fee stipulation, Mr. Gallagher simply offered that the parties were waiting for the decision in Castellanos, but he did not disclose nor volunteer that the actual amount of the fee had been finalized in 2015 at the time the case was settled. The JCC found this exhibits a lack of candor before the tribunal, and found the $20,000.00 carrier-paid side fee had been negotiated back in 2015 as revealed in the carrier’s payout ledger attached to the fee stipulation. The payout ledger clearly demonstrated that the $20,000.00 was carved out of the global settlement prior to the Castellanos ruling.
The JCC found that the $20,000.00 Employer/Carrier-paid attorney’s fee for which the parties now sought approval was issued by the Employer/Carrier and transmitted by the carrier to Gallagher Law Group, P.A., on July 27, 2015, and that this amount was carved out of the global settlement of $243,036.04 by agreement. The JCC noted the payout ledger shows in July 2015, the Employer/Carrier issued three checks simultaneous with the issuance of the other checks constituting the washout settlement. The JCC found that if the checks or the side fee were in fact negotiated by counsel for the claimant before the side fee was approved by this tribunal, it would constitute a violation of F.S. §440.105(4) applicable at the time.
The JCC found that because the parties negotiated and paid the actual fee that could not possibly be approved by the JCC under F.S. §440.105(4) or F.S. §440.34(1), that such conduct could be considered collusion to knowingly assist, conspire with, or urge any person to fraudulently violate the provisions of Chapter 440.
The JCC found that any part of the stipulated carrier-paid fee that is not approved should belong to the injured worker as part of the global settlement, rather than revert back to the pocket of the carrier who may have been a willing party to the reason why the fee was disapproved.
The JCC found that $4,293.80 of the stipulated carrier-paid fee of $20,000.00 is approved and the remaining portion of the unapproved fee in the sum of $15,706.20 shall be remitted to the claimant as part of his workers’ compensation settlement.
Osmel Perdomo v. Mr. Glass Doors & Windows, Inc./Tower Group Companies
JCC Medina-Shore; Miami District; Order Date: September 23, 2016
OJCC Case: 13-005031SMS; D/A: 12/4/2012
Claimant’s Counsel: Orlando Murillo
Former Claimant’s Counsel: Anthony Forte of Gallagher Law Group
Employer/Carrier’s Counsel: Zal Linder
Briefly: ATTORNEY’S FEES – JCC Medina-Shore found the claimant’s former counsel, Mr. Gallagher, is entitled to an Employer/Carrier-paid attorney’s fee for securing authorization of a surgery and found the surgery was authorized more than thirty days following the filing of a Petition for Benefits.
Summary: The JCC noted the Employer/Carrier filed a response to the Petition for Benefits indicating the request for surgery was “under review.” The JCC found that while the Employer/Carrier’s Response to the Petition for Benefits is not a denial of surgery, it was incumbent upon the Employer/Carrier to “timely” notify the claimant and/or his attorney once the surgery was authorized.
The JCC found that, although it appears the pre-certification and surgical appointments were tentatively scheduled, authorization for the surgery was not provided within thirty days of the Petition for Benefits. The JCC found the Employer/Carrier relayed its authorization of surgery to the doctor on the 31st day and to the claimant on the 34th day following the filing of the Petition for Benefits.
Georgene Patterson v. Polk County Board of County Commissioners/Commercial Risk Management, Inc.
JCC Sojourner; Lakeland District; Order Date: September 23, 2016
OJCC Case: 02-017724MES, 03-001326MES, 16-005697MES; D/A: 6/22/2001
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Curt Harbsmeier
Briefly: REPETITIVE TRAUMA – JCC Sojourner denied the claim for medical benefits and compensability of a 2001 injury, and found the claimant did not provide any evidence the alleged injury was caused by repetitive trauma.
Summary: The JCC noted the claimant alleged the work she performed was heavy and repetitive in nature. However, the JCC found her testimony alone did not establish a repetitive trauma injury, and that claimant’s physicians testified the claimant’s current symptoms are due to a combination of factors. The JCC found the 2001 work accident is not the major contributing cause of the claimant’s current need for treatment.
Instead, the JCC noted the physicians testified that several factors combined to cause the claimant’s current need for treatment, including the progression of a degenerative disc disease which was personal in nature. The JCC specifically noted that Dr. Amman testified that the need for treatment was due to a combination of factors which included the work injury, the claimant’s weight, normal wear and tear, and repetitive trauma. When Dr. Amman was asked whether he could determine how much each of these factors contributed to the need for palliative treatment, he said he could not.
Ronald K. Barnes v. State of Florida Dept. of Corrections-Hardee/Division of Risk Management
JCC Sojourner; Lakeland District; Order Date: September 26, 2016
OJCC Case: 15-015142MES; D/A: 2/15/2014
Claimant’s Counsel: James Spears
Employer/Carrier’s Counsel: Tiffany Stanton Hawks
Briefly: PERMANENT IMPAIRMENT RATING; PRESUMPTION UNDER F.S. §112.18 – JCC Sojourner found it was premature to determine the issue of permanent impairment rating for the claimant’s gastrointestinal condition, however, the JCC determined the permanent impairment rating for the claimant’s cardiac condition is 35% and accepted the opinion of Dr. Mathias that the claimant fell into Class 3.
Summary: The JCC accepted the opinion of Dr. Mathias over that of Dr. Perloff and found the claimant had a 35% Class 3 permanent impairment rating for his cardiac condition. The JCC found that Dr. Perloff does not do ablation procedures and had rejected the claimant’s complaints of ongoing palpitations stating the cardiac ablation had been successful and there was no objective medical evidence of palpitations.
On the other hand, the JCC noted that Dr. Mathias does perform cardiac ablations and that Dr. Mathias explained about 30% of his patients have breakthrough palpitations and require repeat ablations. The JCC accepted Dr. Mathias’ opinion given his greater experience and expertise in this area and explained that Dr. Mathias actually physically examined and spoke with the claimant. Dr. Perloff performed a “paper” IME and did not meet with or examine the claimant.
Ivenet Severe v. Wizard Services, Tropical Growers USA, Inc./Castlepoint Insurance/Tower Group
JCC Forte; Ft. Lauderdale District; Order Date: September 26, 2016
OJCC Case: 12-002054IF; D/A: 12/9/2011
Claimant’s Counsel: D. Robert “Bobby” Wells
Employer/Carrier’s Counsel: Stephanie A. Robinson
Briefly: ATTORNEY’S FEES – JCC Forte denied the claim for attorney’s fees and accepted the Employer/Carrier’s position that the requested medical treatment was authorized timely in response to both Petitions for Benefits and any delay in provision of follow-up medical care was due to the claimant’s failure to schedule an appointment at his convenience.
Summary: It was the claimant’s position that fee entitlement from the Employer/Carrier is due because although the Employer/Carrier responded to both Petitions acknowledging Dr. Goldberg and US Healthworks remained authorized, an appointment was not actually provided.
The Employer/Carrier explained that any delay in the provision of follow-up care was due to the claimant’s failure to schedule an appointment and that the authorized provider, US Healthworks, is a walk-in clinic with no particular requirement that the adjuster must schedule the appointment before the claimant can be seen.
The JCC explained found is no legal precedent that requires a claims adjuster to schedule an appointment for follow-up care with an authorized provider such as in this case. The JCC found that Dr. Goldberg or any other provider at US Healthworks remained authorized to treat the claimant and any failure of the claimant to be seen was not due to the Employer/Carrier’s nonfeasance, but that of the claimant.
Vickie McCue-Smith v. Brookdale Senior Living/Gallagher Bassett Services, Inc.
JCC Humphries; Jacksonville District; Order Date: September 27, 2016
OJCC Case: 14-015176RJH; D/A: 4/24/2013
Claimant’s Former Counsel: Catherine Agacinski
Employer/Carrier’s Counsel: Thomas Vecchio
Briefly: ATTORNEY’S FEES – JCC Humphries denied the Verified Petition for Attorney’s Fees and found the evidence established that the Employer/Carrier timely agreed to pay the bills at issue within ten days after the Petition for Benefits was filed and there was no showing the claimant secured an increase in benefits.
Summary: The JCC found the claimant’s former counsel failed to establish fee entitlement for the medical bills and an increase in the average weekly wage. The JCC found the evidence established that the Employer/Carrier agreed to pay the bills in a timely manner within ten days of the filing of a Petition for Benefits, the claimant had no liability for the bills and the Judge of Compensation Claims was divested of jurisdiction.
Further, the JCC found former counsel for the claimant did not establish she is due a fee on allegedly unpaid amounts of disability benefits based on an increase in the average weekly wage. The JCC found that claimant’s former counsel failed to establish the Employer/Carrier did not correctly address the average weekly wage and pay benefits resulting from that adjustment. The JCC noted the Employer/Carrier timely responded to the Petition for Benefits conceding an increase in the average weekly wage and setting forth the amounts to be paid.