FL Case Law Summaries – 10/9/15
JCC ORDERS
Treva L. Taylor v. Target Corporation/Sedgwick CMS
JCC Rosen; St. Petersburg District; Order Date: October 7, 2015
OJCC Case: 15-013059SLR; D/A: 9/4/2014
Briefly: MOTION TO ENFORCE MEDIATION AGREEMENT – JCC Rosen granted the claimant’s ore tenus Motion for Summary Final Order and found the parties entered into a valid mediation agreement whereby the Employer/Carrier agreed to authorize surgery.
Summary: The claimant suffered a compensable back injury and the Employer/Carrier authorized Dr. Andrew Messer to treat her injuries. Dr. Messer recommended two surgical procedures, a total disk replacement at C6-7, or cervical discectomy, fusion, and plating at the same level. Dr. Messer refused to accept the medical and surgical fee schedule for a discectomy, but was willing to accept the fee schedule for the fusion and plating. The carrier authorized either surgery and the parties have been waiting seven weeks for Dr. Messer to return certain codes to make sure that he will accept the fee schedule for the cervical fusion.
The JCC instructed the parties to diligently work to resolve the financial issue with Dr. Messer and to schedule future proceedings with the court if needed.
Bryon Bishop v. Arena Football League and Arena Football One, LLC
JCC Sculco; Orlando District; Order Date: October 7, 2015
OJCC Case: 14-007837TWS; D/A: 7/31/2013
Briefly: PROFESSIONAL ATHLETE EXCEPTION TO COVERAGE; COMPENSABILITY –JCC Sculco found that AFL One was the claimant’s employer on the date of accident pursuant to a contract agreement between the parties. The JCC also found that there was no clear and convincing evidence to reject the opinions of Dr. Murrah, Expert Medical Advisor.
Summary: There are many issues in this claim. AFL One raised a defense that the claimant was not an employee of AFL based, in part, on the professional athlete exception to coverage contained in F. S. Sec. 440.02(17)(c)(3). However, the JCC found that the parties were bound by the standard player contract and, pursuant to the contract, AFL One is liable for claimant’s workers’ compensation benefits. The JCC also incorporated the terms of the prior order entered in this case in December of 2014 on this issue.
The JCC noted that Dr. Murrah was appointed an Expert Medical Advisor and opined that the claimant “definitely sustained injuries to the neck, low back, right knee and left foot, using the date of injury of July 31, 2013.” The JCC found there is no clear and convincing evidence to reject the opinions of Dr. Murrah, but that Dr. Murrah’s opinions do not support a finding of compensability of the claimant’s left arm condition.
Ashon J. Lillie v. Florida City Police Department/Gallagher Bassett Services, Inc.
JCC Medina-Shore; Miami District; Order Date: October 7, 2015
OJCC Case: 14-016437SMS; D/A: 6/30/2013
Briefly: DAUBERT – JCC Medina-Shore denied the Employer/Carrier’s Motion to Limit Expert Testimony regarding the expert opinions of Mr. Kirkham and Mr. Blackledge, both experts in the area of law enforcement.
Summary: The JCC found that the expert testimony of Mr. Kirkman and Mr. Blackledge was relevant and should be considered as it relates to whether the claimant was engaged in his “primary responsibility” as a police officer at the time of the accident. The JCC found that both of these experts presented testimony which should be tested and weighed by the JCC. The JCC explained that once the testimony of the experts is offered at final hearing, the JCC will determine whether the principles and methods used by the experts have been properly applied to the facts of the instant case.
Additionally, the JCC stated that when deciding whether Mr. Kirkman’s assessment of the situation was correct, she intends to take into account the Employer/Carrier’s argument that Mr. Kirkman failed to consider all relevant evidence
Larry Ricks v. First Coast Tractor and Mower/Sentry Casualty Company/Sentry Select Insurance Company
JCC Humphries; Jacksonville District; Order Date: October 7, 2015
OJCC Case: 90-000930RJH; D/A: 3/9/1990
Briefly: SPECIAL DISABILITY TRUST FUND – JCC Humphries granted the Employer/Carrier’s claim for reimbursement against the Special Disability Trust Fund for attendant care benefits, but denied the claim for reimbursement against the Fund for the claimant’s wheelchair.
Summary: With regard to attendant care, the Fund argued that Florida Administrative Code Rule 69L-10.016(1) requires the Employer/Carrier submit attendant care logs as part of their proof for reimbursement. The JCC concluded this rule was not applicable because persons who perform attendant care services for the injured worker are not health care providers under the statute.
Additionally, the JCC found that this rule was not in effect on the date of accident and that there is no uniform requirement by the Special Disability Trust Fund requiring when attendant care logs are required.
With regard to the wheelchair, the JCC found the Carrier failed to establish competent evidence of the medical necessity of the wheelchair.
Robert Fraser v. East Coast Restaurants, Inc./Zenith Insurance Company
JCC Sturgis; Ft. Myers District; Order Date: October 7, 2015
OJCC Case: 15-005879KAS & 15-012908KAS; D/A: 4/1/2014 & 3/7/2015
Briefly: MOTION TO ENFORCE SETTLEMENT – JCC Sturgis found the claimant settled his claim against the Employer/Carrier and denied the claimant’s request to set aside the settlement.
Summary: The claimant is not represented in this case and disagreed with the way his workers’ compensation claims were handled. Many of his assertions went to the facts of the claims, not to the issue before the JCC as to whether the settlement agreement should be set aside. The JCC found there was no legal basis to set aside the settlement agreement and that there was no evidence there was undue influence, duress, or misrepresentation on the part of the insurance adjuster as implied by the claimant’s Motion to Set Aside Settlement Agreement.
Ernest Spencer v. Waste Pro/Liberty Mutual Insurance
JCC Hill; Gainesville District; Order Date: October 7, 2015
OJCC Case: 13-025845MRH; D/A: 9/25/2013
Briefly: ATTORNEY’S FEES – JCC Hill awarded a carrier-paid “medical-only” fee in the amount of $1,500, noting that statutory fee would equate to $15.45 per hour.
Summary: It was uncontested that claimant’s counsel is entitled to attorney’s fees. The only issue presented to the JCC was the amount of the fee. The statutory fee would equate to $15.45. Claimant’s counsel argued an alternative fee for obtaining “medical only” benefits pursuant to F.S. Sec. 440.34(7) was applicable. The Employer/Carrier argued that an hourly fee was appropriate.
The JCC found that an hourly fee is not permissible for this 2013 date of accident and that a statutory fee would not adequately compensate claimant’s counsel for his time.
Joyce Berkery v. Pet Supermarket, Inc./Zenith Insurance Company
JCC Sojourner; Lakeland District; Order Date: October 7, 2015
OJCC Case: 15-002418MES; D/A: 8/23/2014
Briefly: PREVAILING PARTY COSTS – JCC Sojourner awarded the Employer/Carrier recovery of costs and noted a final hearing was scheduled to take place, but just prior to hearing the claimant, through her attorney, dismissed all outstanding petitions.
Summary: The claimant alleged an injury and filed several Petitions for Benefits through her counsel. As a result, the Employer/Carrier took the claimant’s deposition and subsequently denied the entire claim on the basis that the claimant made material misrepresentations. Prior to the final hearing, the claimant dismissed all outstanding petitions. The JCC awarded the Employer/Carrier prevailing party costs pursuant to F.S. Sec. 440.34(3).
Henry Reed v. BellSouth Telecommunications/Sedgwick CMS
JCC Lazzara; Tallahassee District; Order Date: October 7, 2015
OJCC Case: 90-004091JJL; D/A: 11/4/1990
Briefly: ATTENDANT CARE –JCC Lazzara denied an increase in the attendant care hourly rate, but awarded the claimant’s spouse past due adjustment installments for attendant care benefits payable at the rate of $7.25 per hour pursuant to an agreement of the parties in 2003.
Summary: The JCC noted the parties entered into a Joint Stipulation in 2003 providing that the claimant’s wife would be paid for attendant care services at a rate commensurate with the “Federal Minimum Wage” and that any change to the “Federal Minimum Wage would be reflected in the yearly attendant care rate.” However, since 2009, the Federal Minimum Wage has not changed. In denying the claimant’s request to increase the rate of payment for attendant care services, the JCC noted that the claimant’s spouse is not entitled to receive the Federal Minimum Wage due to an employment relationship, but rather is receiving the Federal Minimum Wage as a result of a contractual arrangement between the parties.
The JCC rejected the claimant’s estoppel argument that, in the past, the carrier has paid attendant care using the Florida minimum wage rather than the lower Federal rate, as not timely or appropriately raised.