FL Case Law Summaries – 11/11/15
BY:
1st DCA Orders
Bismark A. Batres v. Safelite Auto Glass/Sedgwick CMS
Appeal of the Order from JCC Kerr
DCA Order Date: November 5, 2015
Case: 1D15-913; D/A: 3/12/2014
Appellant’s Counsel: Bill McCabe and Ivan P. Morales
Appellee’s Counsel: Mary Frances Nelson and David Halpern
Briefly: TEMPORARY PARTIAL DISABILITY; “MISCONDUCT”– The 1st DCA per curiam affirmed JCC Kerr’s order denying temporary partial disability benefits on the grounds that claimant’s actions of using cocaine on the weekend justified his termination for cause and was sufficient to bar entitlement to temporary partial disability benefits.
Summary: The claimant violated the employer’s zero policy drug policy. The claimant testified that he used cocaine on the weekend and that there was no evidence that he was impaired at work. The employer representative testified that company policy is zero tolerance as the safety of the entire work process would be compromised if employees were under the influence of drugs and alcohol while using sharp objects to replace wind screens at work. This policy was explained to the employees during the hiring process and all employees were required to undergo a pre-employment drug screen.
The JCC determined that the claimant’s violation of the employer’s zero tolerance drug policy rose to the level of misconduct such that temporary partial disability benefits are not payable following termination from employment pursuant to F.S. §440.15(4)(e) or F.S. §440.02(18).
The JCC rejected the claimant’s argument that repeated violations of explicit policies after several warnings are required for a finding of misconduct. The JCC found there was no requirement to allow repeated violations of a zero tolerance drug policy which could place other workers’ safety in jeopardy. The JCC found that a single incidence of cocaine use was a willful and wanton disregard of the employer’s interest, and sufficiently egregious such that it rose to the level of misconduct sufficient to bar his entitlement to temporary partial disability benefits.
The claimant argued that his temporary partial disability benefits should be reinstated following a subsequent surgery and that disqualification from receipt of temporary benefits should not be indefinite. However, the JCC found that the claimant failed to show his loss of earnings was a result of the industrial injury even after the surgery. The JCC found that had the claimant not been terminated for misconduct, the employer would have continued to make a light-duty job available to him within his restrictions.
Edwin Vazquez v. Carlos Romero, L&R Structural Corp. and Acosta Construction/Associated Industries Insurance Company, Guarantee Insurance Company and Star Insurance
DCA Order Date: November 9, 2015
Case: 1D15-0623
Appellant’s Counsel: Matias R. Dorta for Carlos Romero
Appellee’s Counsel: Rayford H. Taylor; William T. Goran; and Stephanie R. Hayes, Staff Counsel for the Office of the Judges of Compensation Claims
Briefly: JURISDICTION OVER DISCOVERY – The 1st DCA withdrew its prior opinion on this matter and granted claimant’s Writ of Prohibition to prevent the Judge of Compensation Claims from exercising jurisdiction over discovery requests that an alleged employer filed after claimant voluntarily dismissed the Petition for Benefits against three alleged employers and their carriers.
Summary: The claimant filed three Petitions for Benefits against three different employers and all employers denied having an employer/employee relationship with the claimant, thereby denying compensability. The claimant then dismissed his Petitions without prejudice and filed a tort claim in circuit court. Nonetheless, employer Romero filed new papers before the JCC and attempted to rescind his prior denial of compensability, tried to provide benefits to the claimant (which the claimant rejected), and filed a contribution action against another alleged employer. Romero also sought discovery related to the contribution claim, including discovery of the claimant’s medical records from a non-party hospital. The JCC entered an order finding that he had jurisdiction over Romero’s discovery efforts within the workers’ compensation arena.
The DCA held there is no justiciable controversy for the JCC regarding the parties’ rights and obligations under the Workers’ Compensation Act and that the claimant’s dismissal of his Petition for Benefits divested the JCC of jurisdiction.
Additionally, the DCA held that F.S. §440.42(4) does not confer jurisdiction on the JCC with regard to a claim for contribution, because that statute applies only to disputes over carriers’ relative coverage responsibilities after underlying liability has been conceded or otherwise established.
The DCA instructed the defendants that they may conduct discovery in circuit court and may, if appropriate, assert workers’ compensation immunity as a defense.
JCC Orders
John L. Fifer v. Hernando Aluminum, Inc./Auto Owners
JCC Lorenzen; Tampa District; Order Date: November 9, 2015
OJCC Case: 13-020119EHL; D/A: 5/30/2013
Claimant’s Counsel: Alfred Deutschman
Employer/Carrier’s Counsel: Shawn McKamey
Briefly: ADVANCE – JCC Lorenzen denied the request for an advance and found she had no jurisdiction
to consider the matter without a Petition for Benefits.
Summary: The JCC found that it is the filing of the Petition for Benefits that transforms an injured employee into a “claimant” who may seek an advance under F.S. §440.20(12)(c). The JCC found that an injured employee who has not filed a Petition seeking any type of benefit beyond an advance is not a “claimant” and cannot request an advance despite the existence of an ongoing, accepted worker’s compensation claim.
The JCC reasoned that she cannot consider an advance in the absence of a Petition for Benefits because she cannot compel the carrier to perform an act when she has no jurisdiction over the carrier. The JCC found she did not acquire jurisdiction simply because there is an ongoing accepted workers’ compensation claim. The JCC acknowledged that the claimant is not currently being denied any benefit to which he feels entitled so that the filing of a Petition would be frivolous.
Maria Gelyon v. American Medical Systems/Gallagher Bassett Services, Inc.
JCC Rosen; St. Petersburg District; Order Date: November 9, 2015
OJCC Case: 15-024465SLR; D/A: 9/5/2012
Claimant’s Counsel: Nancy Cavey
Employer/Carrier’s Counsel: Gregory Brooks
Briefly: EX PARTE ATTORNEY’S FEE – JCC Rosen denied the ex parte attorney’s fee for lack of jurisdiction.
Summary: Claimant’s counsel moved for an ex parte attorney’s fee to be paid by the claimant. There was no objection by the Employer/Carrier to payment of an ex parte attorney’s fee by the claimant to her attorney.
The Verified Petition for ex parte attorney’s fee did not allege that the requested fee was based on benefits paid to the claimant through the workers’ compensation claim or paid pursuant to a “medical only” claim. There was no breakdown of benefits secured except that counsel for the claimant “negotiated a resolution of the workers’ compensation lien.”
The JCC explained that workers’ compensation liens arise under F.S. §440.39 when a worker is injured due to the fault of the third party. If the claimant makes a recovery from a third party, the Employer/Carrier is entitled to reimbursement of medical and indemnity benefits. The JCC found there is no provision in Florida Statutes for payment of an attorney’s fee, either by the claimant or the Employer/Carrier, regarding liens under F.S. §440.39.
The JCC held that no evidence supported a finding of benefits were secured by the attorney for the claimant.
Jimmie Cohen v. Woodruff & Sons, Inc./Commercial Risk Management
JCC Beck; Sarasota District; Order Date: November 9, 2015
OJCC Case: 10-019920DBB; D/A: 3/19/2010
Claimant’s Counsel: Edward T. Mason
Employer/Carrier’s Counsel: Clara O. Arrington
Briefly: MULTIPLE ADVANCES – JCC Beck denied the request for an additional lump sum advance and noted that the claimant had previously received a $2,000 advance.
Summary: The JCC found that, because the claimant already was awarded a $2,000 advance, the JCC must inquire into the reasonableness of the advance. The JCC found that another advance in this case would materially prejudice the rights of the Employer/Carrier and is not reasonable under the circumstances.
The JCC found that the claimant has not worked for several years, hasn’t really looked for work, and has not repaid the initial $2,000 advance. The JCC found that the claimant did not make the best use of his prior advance and there are no benefits presently being paid by the Employer/Carrier from which they could recoup either advance.
Leon Cardona v. Flagler County School Board/Johns Eastern
JCC Anderson; Daytona Beach District; Order Date: November 9, 2015
OJCC Case: 15-006931WWA; D/A: 4/28/2014
Claimant’s Counsel: Keith Warnock
Employer/Carrier’s Counsel: Nancy Blastic
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Anderson ordered the Employer/Carrier to pay temporary partial disability benefits.
Summary: The JCC found that claimant established a prima facie case of lost earning capacity and accepted the opinion of the authorized neurologist, Dr. Karaffa, that the claimant had post-concussion syndrome, with headaches and vertigo, causally related by the industrial accident with corresponding work restrictions.
The JCC noted the Employer/Carrier raised the defense that the claimant was terminated from employment for reasons unrelated to the industrial accident. However, the JCC found it was unnecessary to address the merits of such a defense, because no evidence was presented that the claimant was terminated by the employer. The evidence was that the claimant was not terminated and remained on the employer’s list as a substitute available for the employer to call for work.