FL Case Law Summaries – 1/11/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
To receive daily e-mails with case law summaries, please email esantos@eralcides.com
First DCA Orders
Palm Beach County BOCC, and Palm Beach County Fire/ Preferred Government Claims Solutions v. Jonathan Brown
JCC D’ Ambrosio: West Palm Beach District Order Date: October 13, 2016
OJCC Case: 14-022337MAD Date of Accident: 8/11/05 & 8/5/14
Claimant’s Counsel: Kelli Hastings Employer/Carrier’s Counsel: Lyle C. Platt
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Compensability; 120 Day Rule – The First DCA affirmed JCC D’Ambrosio’s determination of compensability of the Claimant’s heart disease and subsequent heart surgery based on the Employer/Carrier’s failure to deny the claim within the 120 day pay and investigate period.
Summary: The Employer/Carrier initially accepted compensability of the Claimant’s heart disease in 2005 and continued authorizing treatment every six months for the next ten years. When the Claimant’s authorized treating cardiologist recommended surgery in 2014, the Employer/Carrier denied any and all treatment based on major contributing cause. The JCC determined that the Employer/Carrier accepted the compensability of the initial heart disease and the recommended surgery by not denying the claim within the 120 day period. The Claimant’s cardiologist testified that if he had been contacted within the 120 days, he could have definitively stated that the heart condition was congenital in nature and not work related.
The JCC also rejected the Employer/Carrier’s argument that although the Employer/Carrier accepted compensability of the initial heart condition, they can later contest the major contributing cause of the need for future medical care. This argument was rejected based on the fact that the Employer/Carrier made a minimal effort to ascertain the major contributing cause of the need for treatment for ten years after initially authorizing treatment.
Tompkins Beckwith, Inc., and Workers Compensation Administrative Trust Fund/Argonaut Insurance Company v. Mark C. Cooper
JCC Humphries: Jacksonville District Order Date: October 5, 2016
OJCC Case: 82-000425RJH Date of Accident: 11/4/1982
Claimant’s Counsel: Bill McCabe Employer/Carrier’s Counsel: Cynthia Shaw
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Permanent Total Supplemental Benefits – The First DCA affirmed JCC Humphries’ denial of Permanent Total Supplemental Benefits based on the Joint Petition executed by the parties on October 7, 1986.
Summary: The Employer/Carrier as well as the Workers’ Compensation Administration Trust Fund (“WCATF”) denied the supplemental benefits on the basis that the claimant settled his right to all indemnity benefits by operation of a “Joint Petition.” As part of the Joint Petition, the Employer/Carrier agreed to make a lump sum payment as well as various other annuity payments over the course of 40 years. The JCC concluded that the Joint Petition met the requirements set forth by Fla. Stat. § 440.20 (12) and that the Employer/Carrier did not owe the Claimant any additional funds other than those provided by the Joint Petition.
The JCC did rule that based on the language of the Joint Petition, the WCATF is still liable for supplemental benefits based on Fla. Stat. § 440.15(1)(e)(1).
Michael Bowman v. Goodwill Industries Inc. and Patriot Risk Services
JCC Beck: Sarasota District Order Date: October 28, 2016
OJCC Case: 15-004259DBB Date of Accident: 4/4/16
Claimant’s Counsel: Craig Stewart Employer/Carrier’s Counsel: Daniel DeMay
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Apportionment – The First DCA reversed JCC Beck’s determination that the Employer/Carrier was entitled to apportionment of the medical and indemnity benefits. The DCA found that the record contained insufficient evidence to meet the statutory requirements for establishing the affirmative defense of apportionment.
Summary: Only one out of forty-six paragraphs in the Final Order discussed apportionment. The Claimant’s authorized treating physician ruled that the workplace accident accelerated or aggravated the Claimant’s pre-existing degenerative arthritis. The physician attributed 60% of the need for treatment to the workplace accident and 40% to the degenerative arthritis.
The DCA did not state specifically why the evidence was insufficient to establish an apportionment defense. However, it should be noted that the First DCA previously held in Staffmark v. Merrell that ambiguous pre-existing conditions like age, or degenerative changes are likely insufficient to award an apportionment defense. 43 So. 3d 792 (Fla. 1st DCA 2010). The Employer/Carrier must be able to point to a specific accident or disease through medical records or other documentary evidence. Here, the physician relied upon an ambiguous pre-existing condition and did not specify what medical evidence was used in making the apportionment of fault.
Kilyn Construction Inc. v. Dedrick Pierce
JCC Roesch: Panama City District Order Date: October 4, 2016
OJCC Case: 12-023471JJL Date of Accident: 10/10/12
Claimant’s Counsel: Paul Anderson Employer/Carrier’s Counsel: Diane Tutt
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Medical Benefits (Handicap Accessible Housing) – The First DCA reversed and remanded JCC Reusch’s award of handicap accessible housing and auto insurance benefits as they were both deemed unreasonable and not medically necessary in spite of the Employer/Carrier’s failure to aid the Claimant in obtaining new housing.
Summary: The Claimant was left paralyzed from the waist down as a result of a workplace accident in 2012 when the Claimant fell from a roof. During prior litigation, the Employer/Carrier was order to provide the Claimant with handicap accessible housing as well as a handicap accessible van. The Employer/Carrier was only required to pay the difference between the Claimant’s pre-accident housing ($1,000/month) and the cost of the handicap housing. The Claimant eventually lost his apartment and the Employer/Carrier offered little or no help obtaining a new residence. The Claimant later filed a PFB seeking payment of $17,500 for six months of rent ($3,500/month) and $4,464 for six months of auto insurance. In contrast to the Claimant’s original two-bedroom apartment costing $1,000 per month, the Claimant’s new residence was a four-bedroom house on approximately four acres of land near the water.
JCC Roesch determined that because the Employer/Carrier failed to aid the Claimant in obtaining a new residence and new auto insurance the Claimant was free to obtain housing and insurance on his own. The DCA reversed this decision on the grounds that both the housing and insurance costs were unreasonable and not medically necessary. The Claimant’s pre-accident housing consisted of a two-bedroom apartment that cost $1,000 per month. Nothing in the record provided any justification for why a house costing more than three times that amount was reasonable or medically necessary. Furthermore, as auto insurance policies meeting all state regulations were available for $712, the policy proposed by the Claimant costing $4,464 was also denied as unreasonable and unnecessary.
City of Dania Beach and PGCS v. David Zipoli
JCC Lewis: Fort Lauderdale District Order Date: October 10, 2016
OJCC Case: 14-029380DAL Date of Accident: 1/16/09
Claimant’s Counsel: Kimberly Hill Employer/Carrier’s Counsel: George Boring
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Statute of Limitations – The First DCA ruled that the Employer/Carrier was not estopped from denying future benefits based on the statute of limitations because the only misleading or erroneous information the Claimant relied upon was from the physician’s office, not the Employer/Carrier.
Summary: The Claimant sustained injuries to his lower back on January 16, 2009 as the result of a workplace accident. The parties stipulated that the Claimant reached MMI on July 28, 2009 and that the last medical treatment took place in May of 2010. On December 22, 2014, more than four years after the Claimant last received any workers’ compensation benefits, the Claimant filed a PFB seeking authorization of medical care, IBs “at the correct rate,” penalties and interest on any late payment of indemnity benefits, and attorney’s fees and costs.
The JCC initially determined that the Employer/Carrier was estopped from asserting a statute of limitations because the Claimant detrimentally relied upon incorrect information from his authorized treating physician’s office that his case was closed and that he was no longer authorized to receive medical treatment.
The First DCA ultimately reversed the JCC’s conclusion that the Claimant’s reliance on the physician’s statement precluded the Employer/Carrier from asserting the statute of limitations. The fundamental element of estoppel is that one party is harmed by the detrimental reliance on another party’s misrepresentation. Unlike the Gauthier v. Florida International University case relied upon by the Claimant, the misrepresentation in this case came from the physician’s office, not the Employer/Carrier. 38 So. 3d 221 (Fla. 1st DCA 2010). The Employer/Carrier cannot be estopped from asserting the statute of limitations based on misinformation given out by a non-party.
Drivers Management LLC, and ESIS v. Catherine Hood
JCC Humphries: Jacksonville District Order Date: October 20, 2016
OJCC Case: 15-003891RJH Date of Accident: 6/22/14
JCC Order: Click Here 1st DCA Order: Click Here
Claimant’s Counsel: Jonathan B. Israel Employer/Carrier’s Counsel: Susan Saponznikoff
Briefly: IME Reports; Temporary Partial Disability – The First DCA affirmed JCC Humphries’ award of TPD and continued medical treatment. The Claimant alleged injuries to her right shoulder and neck after attempting to unload her delivery truck. The Employer/Carrier accepted compensability of Claimant’s right shoulder injury but contested the compensability of the alleged neck injury. JCC Humphries concluded that both the right shoulder and neck injuries were compensable despite the testimony of the Employer/Carrier’s IME, Dr. Gammel.
Summary: The report from Dr. Gammel was not admitted into evidence because the Employer/Carrier failed to have the report authenticated. The JCC stated that even if the report was admissible, the opinion would have been rejected as the physician did not evaluate the Claimant, did not review any of the prior testimony of the Claimant, and failed to indicate which, if any, medical records were reviewed in preparation of the report.
The Claimant was determined not to be at maximum medical improvement and as such was entitled to TPD benefits from July 9, 2014 and continuing. The Claimant’s request for continued medical treatment with her authorized treating physician was also granted.
Rafael Cruz-Ramirez v. American Airlines/Sedgwick
JCC Rosen: St. Petersburg District Order Date: October 4, 2016
OJCC Case: 10-005218SLR, 10-005223SLR Date of Accident: 11/5/09 & 7/13/09
Claimant’s Counsel: Toni Villaverde Employer/Carrier’s Counsel: Robert Donahue
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Attorney’s Fee – JCC Rosen entered an order awarding attorney’s fees to both the Claimant’s current attorney, Ms. Villaverde, and the Claimant’s former attorney, Mr. Buechele. The Claimant appealed the award to Mr. Buechele and the employer disclaimed any objection to paying the fees as directed by the JCC.
The First DCA reversed and remanded this decision and determined that Mr. Buechele was not entitled to any attorney’s fees. No benefits were secured while the Claimant was represented by Mr. Buechele and he was therefore not entitled to the award of any fees or costs.