FL Case Law Summaries – 10/6/15
1st DCA OPINIONS
Pierre Raymond Edmond v. Avis Budget Group, Inc./CNA Claim Plus
Appeal of the Order of JCC Basquill; Opinion Date: October 2, 2015
Case Number: 1D14-5945; D/A: 08/15/2012
Attorney for Appellant: Michael H. Stauder
Attorney for Appellee: H. George Kagan
Briefly: ATTORNEY’S FEES – The 1st DCA reversed and remanded to the JCC for determination of whether the JCC considered the claim for additional “fees on fees” for efforts necessary to establish entitlement to an attorney’s fee award under Florida Statute Sec. 440.34.
Summary: The lower tribunal permitted the claimant to amend his attorney’s fees claims to include additional fees related to fee entitlement, “fees on fees”, but ultimately the JCC did not expressly rule on the issue. Without a specific ruling from the JCC, the 1st DCA was unable to determine if the JCC considered the claim for additional fees when he awarded a carrier-paid fee based on a percentage of the benefits secured under Section 440.34.
Ronald Matheny v. Indian River Fire Rescue/Johns Eastern Company
Opinion Date: October 2, 2015
Case Number: 1D15-2719
Attorney for Petitioner: Kristine Callagy
Attorney for Respondents: William H. Rogner
Briefly: WRIT OF CERTIORARI – The 1st DCA dismissed the Petition for Writ of Certiorari for lack of jurisdiction because the writ was filed untimely.
Summary: The deadline for filing the Writ of Certiorari, including in workers’ compensation cases, is controlled by Florida Rule of Appellate Procedure 9.100(c), requiring such a Petition to be filed within thirty days after “rendition” of the order to be reviewed.
In this case, the lower tribunal rendered the order under review on May 12, 2015, so that the last date to file a Writ of Certiorari was June 11, 2015, which did not fall on a weekend or holiday. The petitioner untimely filed the petition on June 12, 2015, thirty-one days after rendition of the order.
The DCA also held that the petitioner was not entitled to an additional five days from the date of “service”, because Rule 9.100(c) requires such a petition to be filed within thirty days after “rendition” of the order to be reviewed.
JCC ORDERS
James Cotto v. Cascade Engineering/Liberty Mutual Insurance
JCC Hogan; Ft. Lauderdale District; Order Date: October 2, 2015
OJCC Case: 14-009305GBH; D/A: 04/10/2014
Claimant’s Counsel: Jason G. Barnett
Employer/Carrier Counsel: Michele R. F. Leissle
Briefly: MEDICAL TREATMENT; TEMPORARY TOTAL DISABILITY – JCC Hogan granted the claim for authorization of lumbar injections pursuant to the opinion of Dr. Krost, the authorized treating pain management physician, and found the recommendation was not “stale”. Notwithstanding Dr. Krost’s opinion that MMI was attained, the JCC also granted the claim for TTD based on Dr. Krost’s referral for lumbar injections.
Summary: The authorized pain management provider, Dr. Krost, diagnosed cervical and lumbar sprain/strain injury as a result of a work-related fall. Dr. Krost recommended lumbar epidural injections to address the discogenic-related pain generator. The Employer/Carrier conceded that Dr. Krost recommended epidural steroid injections, but that the lumbar injections were denied by the Employer/Carrier based on an “internal review.” The Employer/Carrier argued there was no further request by the doctor or recommendation for lumbar injections since December 2014 and it is not known if the lumbar injections are currently recommended or are medically necessary and/or causally related to the work injury.
The JCC held that there is no legal basis to suggest that a recommendation or referral from an authorized doctor can become stale in the absence of a change in claimant’s condition that would affect the need for the recommended benefit. The JCC found that the Employer/Carrier did not provide any evidence to support a finding that there is a change in the claimant’s condition that would affect the need for the recommended epidural steroid injections.
With regard to temporary total disability benefits, the JCC stated that an award in medical care and treatment is inconsistent with the denial of temporary indemnity benefits for the same time period and is reversible error under Rosa v. Progressive Employer Services/Sunz Insurance/USIS, 84 So. 3d 472 (Fla. 1st DCA 2012). The JCC explained that, although Dr. Krost’s medical reports noted that the claimant was at maximum medical improvement and the claimant could return without restrictions, his reports also noted the recommendation of the epidural steroid injections which claimant has not received. The JCC stated that the Rosa decision requires that she grant the request for temporary indemnity benefits.