FL Case Law Summaries – 1/11/16
BY:
JCC ORDERS
Danny Rogers v. Gateway Farms LLC, Get Up & Go, David Hajos
JCC Hill; Gainesville District; Order Date: January 6, 2016
OJCC Case: 15-016938MRH; D/A: 3/21/2015
Claimant’s Counsel: Dean Burnetti
Employer/Carrier’s Counsel: Pro se
Briefly: EMPLOYEE/EMPLOYER RELATIONSHIP; NOTICE OF INJURY – JCC Hill found that an employer/employee relationship existed between the claimant and the employer, Mr. Hajos, who appeared pro se, and that the claimant sustained a compensable injury when he tripped over a hose and fell, injuring his arm.
Summary: The JCC explained that an employer/employee relationship can be determined based on the element of control over the employee, including a determination of who has the right to direct the employee with regard to what work activities shall be done, how the work should be performed, and when the work shall be done. See LaGrande v. B and L Services, Inc., 432 So. 2nd 1364 (Fla. 1st DCA 1983). The JCC found as follows: the claimant was hired by Mr. Hajos; the claimant’s work was directed by Mr. Hajos; the claimant used materials and tools supplied by Mr. Hajos; the claimant was paid by Mr. Hajos; and the claimant performed the work on Mr. Hajos’ property.
The JCC also found that the claimant was injured on Saturday and notified Mr. Hajos the following Monday of the accident and injury, within thirty days pursuant to F.S. §440.185(1).
Kim A. Yarbrough v. Federal Express Corporation/Sedgwick CMS
JCC Beck; Sarasota District; Order Date: January 6, 2016
OJCC Case: 13-008143DBB & 15-011391DBB; D/A: 8/16/2012 & 8/2/2010
Claimant’s Counsel: Eric M. Christiansen
Employer/Carrier’s Counsel: Beatriz Justin
Briefly: COSTS OF IME VIDEOGRAPHER – The JCC could not find that the additional fees charged by the Employer/Carrier’s IME physician for videotaping the IME, as requested by the claimant, were reasonable or permissible and denied the Employer/Carrier’s request that the claimant pay the additional $500 fee to videotape the IME.
Summary: The JCC concluded the record evidence contained no foundational information as to how the physician arrived at the additional video fees or how the services were billed or documented.
Connie Pearl Beal v. Broward Community College/Gallagher Bassett Services, Inc.
JCC Lewis; Ft. Lauderdale District; Order Date: January 6, 2016
OJCC Case: 03-002659DAL; D/A: 6/11/2002
Claimant’s Counsel: Eric Berger
Employer/Carrier’s Counsel: Marybell Lajo
Briefly: ENTITLEMENT TO ATTORNEY’S FEES – JCC Lewis denied entitlement to attorney’s fees based upon the Employer/Carrier’s withdrawal of its Motion to Dismiss for Lack of Prosecution.
Summary: The claimant sought an attorney’s fee pursuant to F.S. §440.34(3)(c) on the grounds the Employer/Carrier’s withdrawal of its Motion to Dismiss for Lack of Prosecution was akin to the claimant’s overcoming a statute of limitations defense, thereby entitling the claimant to recover an attorney’s fee for prevailing on the issue of compensability. The JCC rejected this argument and found the Employer/Carrier did not deny an injury occurred for which workers’ compensation was payable.
The JCC explained that the Employer/Carrier’s Motion to Dismiss for Lack of Prosecution never advanced any compensability defenses such as statute of limitations or fraud. Instead, the Motion to Dismiss merely asserted that the last record activity was more than one year prior to the filing of the Motion. The JCC noted that, contrary to the claimant’s argument, the Employer/Carrier’s Motion avers the claimant did sustain a compensable accident.
James Low v. Citrus County BOCC/York Risk Services Group
JCC Lorenzen; Tampa District; Order Date: January 7, 2016
OJCC Case: 15-013134EHL; D/A: 7/10/2014
Claimant’s Counsel: Matthew Carillo
Employer/Carrier’s Counsel: Bettina Carrier
Briefly: AUTHORIZATION OF SURGERY; TPD – JCC Lorenzen ordered that the Employer/Carrier shall authorize Dr. Manseau to perform a second arthroscopic surgery on the claimant’s right shoulder and found that the claimant was entitled to authorization of another arthroscope as a diagnostic test.
Summary: The JCC found that the Employer/Carrier provided no evidence to support its defenses that the need for repeat surgery was related to a personal condition or any degenerative process. The JCC found the claimant’s torn labrum was related to the compensable accident and that the claimant was entitled to another arthroscopic surgery to treat the compensable injury. The JCC accepted the claimant’s testimony that the first shoulder surgery did not improve his symptoms.
Additionally, the JCC found that due to the need for a second surgery, the claimant had not reached maximum medical improvement and was entitled to temporary partial disability benefits. The JCC accepted the opinion of the authorized physician, Dr. Manseau, that the claimant’s work restrictions correlated to the claimant’s subjective complaints of pain on lifting his right arm or lifting heavy weights. The JCC rejected each of the Employer/Carrier’s defenses and rejected the opinion of the Employer/Carrier’s IME physician, Dr. Halpern, that there is no correlation between the claimant’s pain complaints and his examination findings.
Karenna Robbins v. Signature Brands, LLC/PMA Insurance Company
JCC Hill; Gainesville District; Order Date: January 7, 2016
OJCC Case: 15-013435MRH; D/A: 10/20/2014
Claimant’s Counsel: Daniel L. Hightower
Employer/Carrier’s Counsel: Jeffrey E. Appel
Briefly: CAUSAL RELATIONSHIP OF MEDICAL TREATMENT – JCC Hill found that the recommendation for a physical medicine and rehabilitation specialist was causally related to the industrial accident and that the Employer/Carrier failed to demonstrate a break in the causal chain, such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the compensable injury.
Summary: The JCC noted that a “break” occurs when the work-related cause drops to 50% or less of the total cause of the need for the requested benefit. In this case, Dr. Cordner, the Expert Medical Advisor, diagnosed the claimant with back pain and opined that the claimant had no co-morbid conditions such that there was no break in the causal chain. The JCC found the Employer/Carrier did not meet its burden to establish the requested treatment was necessitated by a condition unrelated to the compensable back injury.
William Rainey v. State of Florida Dept. of Corrections Zephyr Hills CI/Division of Risk Management
JCC Rosen; St. Petersburg District; Order Date: January 7, 2016
OJCC Case: 15-011748SLR; D/A: 1/31/2015
Claimant’s Counsel: Tonya A. Oliver & Jason Fox
Employer/Carrier’s Counsel: Curt Harbsmeier
Briefly: PRESUMPTION UNDER F.S. §112.18(1) – JCC Rosen found the claimant’s claim for coronary artery disease was compensable and rejected the Employer/Carrier’s position that the IME physician, Dr. Nocero, established objective evidence of more than risk factors that the claimant had coronary artery disease at the time of hiring.
Summary: The JCC found that less than a preponderance of evidence showed the claimant suffered from coronary artery disease at the time of his pre-employment physical and hiring. The JCC rejected the carrier’s argument that Dr. Nocero established that the claimant was a diabetic whose diabetes was not properly controlled which led to the formation of plaque and coronary artery disease at the time of hiring.