FL Case Law Summaries – 10/8/15
JCC Orders
Susan K. Worsham v. Alachua County School Board/Florida School Boards Insurance Trust
JCC Hill; Gainesville District; Order Date: October 6, 2015
OJCC Case: 95-000406MRH; D/A: 1/6/1995
Briefly: ATTORNEY’S FEES – JCC Hill granted the claimant’s Verified Petition for Attorney’s Fees in the amount of $950 for time expended in attending the claimant’s deposition when there were no pending Petitions for Benefits.
Summary: Here, because the Employer/Carrier did not file a response to the Verified Petition, the JCC accepted the allegations contained in the Verified Petition as true. The JCC noted Rule 60Q-6.124(3)(b), “…failure to file a timely and specific response to a Motion for Attorney’s Fees and Costs detailing matters that are disputed shall, absent good cause, result in acceptance of the allegations in the Motion as true.”
Sylvester Rush v. E/C #1 ABC Drywall Corporation/Summit Holdings Claims and E/C #2 Waste Management/Gallagher Bassett Services, Inc.
JCC Lewis; Ft. Lauderdale District; Order Date: October 6, 2015
OJCC Case: 14-005525DAL & 14-015812DAL; D/A: 10/19/2010 & 4/19/2013
Briefly: MOTION FOR PROTECTIVE ORDER –The claimant objected to record custodian depositions and subpoenas on the grounds that seeking production of the claimant’s entire health insurance file, irrespective of the relevancy of the medical conditions or remoteness of the dates of treatment, is invasive and overly broad. The JCC noted there is a pending claim for permanent total disability and allowed the subpoenas and scheduled records custodian depositions to go forward with proceedings in place for in-camera inspection, if needed.
Summary: JCC Lewis allowed the Employer/Carrier to schedule the depositions of records custodian witnesses in order to obtain the claimant’s entire health insurance file, but allowed the claimant to review records prior to production to the Employer/Carrier and raise objections if appropriate, including whether the claimant believes the records contain information that is protected or not within the scope of permissible discovery. The JCC allowed any records to which an objection is interposed to be sealed by the court reporter and submitted to the JCC for in-camera inspection or review, along with the deposition transcript. The JCC explained that this procedure allows the Employer/Carrier to pursue its discovery while preserving the claimant’s objections for determination prior to the actual disclosure of the records.
Darren Myrick v. Seasons 52 USA/Liberty Mutual
JCC Basquill; West Palm Beach District; Order Date: October 6, 2015
OJCC Case: 15-017772TMB; D/A: 6/11/2015
Briefly: MOTION FOR ADVANCE – JCC Basquill awarded a $2,000 lump sum in a totally controverted case and accepted the claimant’s testimony as credible.
Summary: The JCC noted that this case is a total controvert, but that after the alleged industrial accident, the claimant worked only three days before being hospitalized for 26 days as a result of the alleged injury. The claimant testified that he was not able to pay his bills following his hospitalization without the help of his girlfriend and parents. The claimant testified that he was in arrears in excess of $3,000.
The JCC found the claimant’s testimony to be credible and that the claimant satisfied his burden of proof for a lump sum advance.
Susan Smith v. School Board of Broward County/The School Board of Broward County
JCC Lewis; Ft. Lauderdale District; Order Date: October 6, 2015
OJCC Case: 91-001189DAL; D/A: 3/19/1991
Briefly: MOTION TO COMPEL DISCOVERY– JCC Lewis granted the Employer/Carrier’s Motion to Compel Responses to Discovery Questions and noted the claimant refused to testify at deposition as to the full names, addresses or phone numbers of her past and present attendant care providers.
Summary: JCC Lewis found that the names, addresses and phone numbers of the claimant’s past and present attendant care providers are relevant and reasonably calculated to lead to admissible evidence at trial. The JCC overruled the claimant’s objection despite the claimant’s argument that these individuals may no longer be willing to provide the attendant care/housekeeping services if they are contacted by the Employer/Carrier or deposed.
Orestes Lopez v. Weekly Asphalt Paving, Inc./Gallagher Bassett Services, Inc.
JCC Roesch; West Palm Beach District; Order Date: October 6, 2015
OJCC Case: 14-024462SHP; D/A: 9/17/2014
Briefly: CATASTROPHIC TTD; HANDICAPPED-EQUIPPED HOUSING – JCC Roesch denied the claim for catastrophic temporary total disability and noted that the statute expressly prohibits enhanced temporary total disability under F.S. 440.15(2)(b) if the claimant is collecting permanent total disability benefits. Judge Roesch granted the claim for handicapped-equipped housing, noting that the claimant’s apartment is not suitable given the claimant’s injuries and resulting limitations and cannot be modified.
Summary: The JCC denied the catastrophic temporary total disability benefits based upon the fact that the claimant is receiving permanent total disability benefits.
The claimant is currently residing at West Gables Rehab Center and cannot be discharged until such time as appropriate housing is provided by the Employer/Carrier. The claimant filed a Petition for Benefits requesting appropriate handicapped-equipped housing and argued that prior to the accident, the claimant resided in a rental apartment that is no longer suitable for the claimant and cannot be modified.
The JCC accepted the expert testimony offered by the claimant in regard to the type of wheelchair-accessible housing necessary for the claimant. The JCC stated that: “it appears to the undersigned that this claimant is simply languishing at West Gables Rehab while the carrier herein simply ignores his situation.”
Danny Cox v. Emergency One, Inc./Travelers Insurance
JCC Hill; Gainesville District; Order Date: October 6, 2015
OJCC Case: 15-009362MRH; D/A: 2/12/2015
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Hill granted the claim for temporary partial disability benefits and found the claimant is not at maximum medical improvement, his work restrictions prevent him from performing his prior job, and that the claimant has established wage loss caused by the work accident. The JCC also denied the Employer/Carrier’s argument that the claimant is estopped from seeking temporary partial disability because he planned to retire on the date of his work accident.
Summary: JCC Hill found that the claimant met each of the elements required for the award of temporary partial disability benefits and specifically found that the claimant proved a causal connection between the injury and loss of income. The JCC found that the claimant’s work restrictions prevented him from physically performing his prior job with the employer and that the claimant was physically unable to perform a job he planned to begin after his retirement.
The JCC rejected the Employer/Carrier’s argument that the claimant is estopped from seeking temporary partial disability benefits because he planned to retire on the date of the work accident. The JCC outlined the elements of estoppel to include: (1) a representation by the party to be estopped to the party claiming estoppel as to some material fact which is contrary to the position later asserted by the estopped party; (2) a reasonable reliance on the present representation by the party claiming estoppel; (3) a detrimental change in position by the party claiming estoppel caused by the representation and reliance thereon.
The JCC also found there is no legal authority to establish that because the claimant was injured on his last date of work, the employer is somehow relieved of its legal obligation to provide indemnity benefits where the claimant otherwise established entitlement.
Brunilda DeJesus v. Univita Holdings, LLC/Gallagher Bassett Services, Inc.
JCC Forte; Fort Lauderdale District; Order Date: October 6, 2015
OJCC Case: 13-019483IF; D/A: 6/21/2013
Briefly: MOTION TO DISMISS – JCC Forte granted the Motion to Dismiss all Petitions for Benefits for failure to appear at the live pretrial and the claimant’s deposition scheduled on numerous occasions.
Summary: The JCC noted that no fewer than three Orders to Show Cause were issued by the court for claimant’s failure to appear at properly noticed court proceedings and that the claimant failed to attend her deposition which was scheduled on at least five occasions. The JCC found that the claimant could not provide any explanation as to why she received every Order to Show Cause on the matter and the Notice of Hearing on the instant proceeding, but did not receive any of the Notices of Depositions or prior notices by this tribunal to appear at mediation or pretrial hearings. The JCC rejected the claimant’s explanation as not credible and dismissed all petitions without prejudice.