FL Case Law Summaries – 10/7/15
JCC Orders
Joyce Berkery v. Pet Supermarket, Inc./Zenith Insurance Company
JCC Sojourner; Lakeland District; Order Date: October 5, 2015
OJCC Case: 15-002418MES; D/A: 8/23/2014
Claimant’s Counsel: Pro se; former attorney Pat T. DeCesare
Employer/Carrier Counsel: Stephen Berlin
Briefly: ATTORNEY’S FEES – JCC Sojourner denied the former claimant counsel’s request for an attorney’s fee paid by the Employer/Carrier for obtaining a $2,000 lump sum advance. The JCC found the claimant was responsible for payment of her own attorney’s costs.
Summary: The JCC relied on the 1st DCA opinion of City of Miami v. Mazur, 449 So. 2d 986 (Fla. 1st DCA 1984) and found that even though the claimant prevailed in her request for a $2,000 advance, there was no benefit secured as contemplated by the statute and, therefore, there is no attorney’s fee awarded.
The JCC noted that the pro se claimant is responsible for reimbursement of costs to her prior attorney.
Donald Alderman v. The Miner Corporation/Tokio Marine Management, Inc.
JCC Sculco; Orlando District; Order Date: October 5, 2015
OJCC Case: 14-007721TWS; D/A: 2/1/2013
Claimant’s Counsel: Clint Lavender
Employer/Carrier Counsel: Morgan Indek
Briefly: EXPERT MEDICAL ADVISOR – JCC Sculco found that there was a conflict between the medical opinions of Dr. Weber, Dr. Friedman, and Dr. Tall regarding the need for care, MMI, and work restrictions. The JCC appointed Dr. Robert Murrah to act as Expert Medical Advisor.
Summary: In response to a Notice of Conflict of Medical Opinions, the JCC heard arguments, reviewed the evidence, and appointed Dr. Robert Murrah to act as the Expert Medical Advisor. The JCC continued the final hearing and listed various issues for the EMA to address including: Does the claimant require further medical care? What treatment is medically necessary? Has the claimant reached maximum medical improvement? Does the claimant have a permanent impairment rating? What are his work restrictions? Is the industrial accident the major contributing cause of these work restrictions?
Eugene Evarisse v. The Green Experts/Wesco Insurance Company
JCC Hogan; Ft. Lauderdale District; Order Date: October 5, 2015
OJCC Case: 15-006826GBH; D/A: 1/14/2015
Claimant’s Counsel: Steven Fried
Employer/Carrier Counsel: Robin Ross
Briefly: MOTION TO DISMISS – JCC Hogan granted the Employer/Carrier’s Motion to Dismiss on the grounds that the claimant failed to appear for three depositions and failed to appear following an order granting a Motion to Compel Attendance at Deposition.
Summary: Although the claimant’s attorney argued that the claimant is willing to appear for his deposition but lacks transportation and funds to travel to the deposition location, the JCC found there was no evidence to support the claimant’s argument. The JCC cited Rule 60Q-6.125(1) which states that failure to comply with any order of the judge may subject a party or attorney to one or more of the following: striking the claims, petitions, defenses or pleadings; imposition of costs or attorney’s fees; or such other sanction as a judge may deem appropriate.
Ofelia Portieles v. Millenium Kid Care/Guide One Insurance Group
JCC Massey; Tampa District; Order Date: October 5, 2015
OJCC Case: 12-024551MAM; D/A: 9/18/2012
Claimant’s Counsel: Stephen Barbas
Employer/Carrier Counsel: Heather McLeod
Briefly: IME – JCC Massey denied the Employer/Carrier’s Motion for IME and noted there is no Petition for Benefits currently pending, in whole or part.
Summary: The JCC reviewed the OJCC docket and relied on various cases holding that the JCC lacks jurisdiction to grant an IME in the absence of a Petition for Benefits. Further, the JCC noted that there is no current existing “dispute” to support the appointment of an IME under F.S. 440.13(5)(a).
Rebeca Cintron v. American Airlines/Sedgwick CMS
JCC Hill; Miami District; Order Date: October 5, 2015
OJCC Case: 10-007453CMH; D/A: 3/10/2010 & 6/27/2012
Claimant’s Counsel: Toni Lynne Villaverde
Employer/Carrier Counsel: Robert A. Donahue
Briefly: MEDICAL BILLING – JCC Hill directed the Employer/Carrier to comply with and abide by their agreement to facilitate and coordinate the processing and submission of outstanding medical bills, to include their completion in the English language on the desired national healthcare forms in a manner which accurately describes the medical services and supplies to be provided in Puerto Rico and their corresponding codes.
Summary: The JCC noted that the claimant is a resident of Puerto Rico, a Territory of the United States, and is desirous of having authorized surgery performed in Puerto Rico. The JCC also noted that the parties agreed to the recommendations for treatment and surgeries and that there is no reimbursement dispute between the out of state providers. Therefore, the JCC found the claimant met her burden of proof that the medical benefits claimed in the petition are compensable and payments are due.
The JCC explained that the ongoing dispute involves the completion of various forms translated into English so that the carrier’s out of state medical pay unit can accurately describe and identify applicable codes for reporting the medical procedures and services to the Division. The carrier agreed to provide these tasks through its contract with an independent entity. The JCC found that the independent entity has not performed their job and, as a result, there have been repeated delays, that if not soon corrected will make a “mockery” of the legislative directive of the workers’ compensation laws and rules to be interpreted and applied. The JCC found that the carrier has fallen short in facilitating and coordinating quick and efficient delivery of medical benefits, and that the Employer/Carrier has not met the burden of proof to demonstrate due diligence in the processing of the medical bills for payment.
Susan Smith v. School Board of Broward County
JCC Lewis; Ft. Lauderdale District; Order Date: October 5, 2015
OJCC Case: 91-001189DAL D/A: 3/19/1991
Claimant’s Counsel: R. Cory Schnepper
Employer/Carrier Counsel: Michael Fichtel
Briefly: MOTION TO ENFORCE COURT ORDER ON DISCOVERY– JCC Lewis noted that by prior court order, the JCC directed the claimant to produce to the Employer/Carrier various documents within fifteen days and that the claimant failed to produce copies of the documents as ordered. The parties represented at hearing that they will attempt to identify which documents remain outstanding and will attempt to agree on the reasonable costs of production.
Summary: JCC Lewis noted that he entered a prior order on June 30, 2015, requiring the claimant to produce various documents within fifteen days. The Employer/Carrier now indicated that they have not received certain documents, but would review their own file to determine whether those documents are already in possession of the Employer/Carrier but received from other sources. It was agreed that counsel for the Employer/Carrier will notify claimant’s counsel of the status of these documents within fifteen days. Copies of those documents for which the Employer/Carrier still seek production shall be produced by the claimant within fifteen days after such notification.
The parties will attempt to agree on reasonable costs of production.
Lourieuse Saintil v. The Millard Group/York Risk Services Group, Inc.
JCC Lewis; Ft. Lauderdale District; Order Date: October 5, 2015
OJCC Case: 12-005865DAL; D/A: 11/28/2011
Claimant’s Counsel: Kevin Gallagher
Employer/Carrier Counsel: Jeffrey Marks
Briefly: ATTORNEY’S FEES – JCC Lewis ordered that, within 45 days, the claimant shall file a Verified Motion for Attorney’s Fees and Costs, which will address the issue of entitlement pursuant to a Motion to Compel Verified Petition for Attorney’s Fees and Costs filed by the Employer/Carrier.
Summary: The Employer/Carrier asserted that the claimant filed various petitions and sought benefits including a determination of compensability, and that the claimant subsequently filed a notice of resolution indicating that all issues contained in the petition, with the exception of attorney’s fees and costs, were resolved. The Employer/Carrier now seek an order compelling the claimant to file a Verified Petition or Motion for Attorney’s Fees and Costs.
In opposition, the claimant contended that the Employer/Carrier has not stipulated to entitlement of fees and costs and that the attorney’s fee statute is currently under constitutional review by the Florida Supreme Court.
The Judge required the claimant to file a Verified Motion for Attorney’s Fees and Costs pursuant to Rule 60Q-6.124(5)(a) which provides that the judge may require a party to file a Verified Motion for Attorney’s Fee as to any Petition for Benefits that has no pending claims other than entitlement to attorney’s fees and costs. The JCC also noted that by bifurcating the fee hearing and trying only the issue of entitlement to a fee payable by an Employer/Carrier, it will not be necessary for the JCC to consider the amount or quantum of the fee at this time, which is the issue that the Florida Supreme Court has pending before it.