FL Case Law Summaries – 11/12/15
BY:
JCC Orders
Hanna H. Sines v. Progressive Employer Services, Inc., Land O’Sun Management Corporation/Scibel Associates, Inc. and Insurance Company of Americas
JCC Hill; Gainesville District; Order Date: November 10, 2015
OJCC Case: 03-15205MRH; D/A: 12/2/2002
Claimant’s Counsel: David Hill
Employer/Carrier’s Counsel: Russell Young
Briefly: MOTION FOR PROTECTIVE ORDER – JCC Hill granted the claimant’s Motion for Protective Order to prevent the Employer/Carrier from obtaining tax records of claimant’s daughter who runs two businesses out of her home with the claimant.
Summary: The claimant receives permanent total disability benefits and lives with her daughter who is the sole owner/proprietor of two businesses she runs out of her home. The Employer/Carrier sought production via a subpoena duces tecum directed to the daughter’s businesses seeking business information, including tax returns.
The JCC found that the claimant’s sworn DWC-19s and the depositions of the claimant and her daughter established that the claimant does not work for the business or receive income from the business. The JCC found the claimant provided the Employer/Carrier with all of her financial documentation and there is no evidence that the tax records from the daughter’s two businesses are relevant to the permanent total disability benefits the claimant receives.
Further, the JCC found that even if the claimant performed limited services in her daughter’s businesses, it would be an insufficient basis upon which to compel tax records and would likely be an insufficient basis to reduce claimant’s PTD benefits. The JCC found that the question is the worker’s ability to sell his or her services in a competitive job market.
Jack G. Riley v. SCI Funeral Services of Florida, Inc./Gallagher Bassett Services, Inc.
JCC Sojourner; Lakeland District; Order Date: November 10, 2015
OJCC Case: 00-013080MES; D/A: 6/1/2000
Claimant’s Counsel: E. Taylor Davidson
Employer/Carrier’s Counsel: Ronald Greninger
Briefly: ATTORNEY’S FEES – JCC Sojourner awarded an attorney’s fee based on a $275 per hour rate and 67.30 hours of attorney’s time.
Summary: This is a 2000 date of accident and the JCC found that the starting point in determining a reasonable fee to be paid is a statutory fee; however, the parties indicated that the statutory fee is not determinable at this time as benefits are ongoing.
Claimant’s counsel testified that the customary fee charged in the locality is $300 per hour. Counsel for the Employer/Carrier acknowledged that fees for Board Certified attorneys range from $225-$275 per hour. The JCC found the benefits obtained were significant to the claimant as they involve the ongoing provision of medical care and determined that an appropriate hourly rate is $275 per hour for attorney time and $85 per hour for paralegal time.
Mayra Crawford v. Florida Dept. of Corrections/OptaComp
JCC Punancy; West Palm Beach District; Order Date: November 10, 2015
OJCC Case: 13-013942SHP; D/A: 5/10/2013
Claimant’s Counsel: William Heller
Employer/Carrier’s Counsel: Kip O. Lassner
Briefly: CLAIMS NOT IDENTIFIED – JCC Punancy denied the claims for compensability and treatment of “possible cervical radiculopathy” and found that the Petition for Benefits failed to state the type or nature of medical treatment claimant has been prescribed which has not been authorized.
Summary: The JCC found that the recommendations at issue, pursuant to the opinions of Dr. Goldberg, were not claimed via a Petition for Benefits. The JCC found that no medical opinion testimony was introduced into evidence, the adjuster was not deposed, and no claim was made for return visits to the authorized physician. Additionally, the JCC found the claimant failed to exercise her right to a one-time change in treating physicians.
The JCC found that it is unknown what treatment claimant seeks to have authorized and that the claimant essentially requested the JCC to determine the medical care and treatment made necessary for her as a result of the industrial accident. The JCC dismissed the claims for compensability and treatment as moot.
Dominga Galva v. Sunbelt Health Care Apopka/Adventist Health System
JCC Sculco; Orlando District; Order Date: November 10, 2015
OJCC Case: 03-038000TWS; D/A: 8/20/2003
Claimant’s Counsel: D. Robert Wells
Employer/Carrier’s Counsel: Eric Eide
Briefly: STATUTE OF LIMITATIONS – JCC Sculco denied the Employer/Carrier’s statute of limitations defense and found that the claimant’s prior Petitions for Benefits from 2011 and 2012 remained pending because of the court’s reservation of jurisdiction on the amount of fees and costs owed and tolled the statute of limitations.
Summary: The JCC rejected the Employer/Carrier’s argument that the holding in Longley v. Miami Dade County School Board, 82 So. 3d 1098 (Fla 1st DCA 2012), applies only to a reservation of jurisdiction after entitlement to fees and costs, but not to a reservation of jurisdiction as to an amount only. The JCC found there is nothing in the language of the opinion that suggests such a distinction was material or important to the court’s decision.
The JCC found the logic of Longley would apply equally to the amount of fees and costs as it would to entitlement.
Denise Cushing v. Miller’s Davie Ale House/Liberty Insurance Corporation
JCC D’Ambrosio; West Palm Beach District; Order Date: November 10, 2015
OJCC Case: 14-029115MAD; D/A: 5/22/2014
Claimant’s Counsel: Dominique Celeste
Employer/Carrier’s Counsel: Michele Leissle
Briefly: PARODI; COMPENSABILITY OF INSECT BITE – JCC D’Ambrosio denied the claim for compensability of a staph infection following an insect bite and found the claimant failed to meet her burden of proof to show the Employer/Carrier wrongfully denied care which would allow the opinion of Dr. Spirazza in evidence under Parodi v. Florida Contracting Company, Inc., 16 So. 3d 958 (Fla 1st DCA 2009).
Summary: The JCC noted that the first requirement of Parodi is that the claimant make a specific request for care, but this was not done in this case. The JCC found the claimant did not contact the carrier for authorization to see a doctor, but instead went directly on her own to Dr. Spirazza as confirmed by the claimant’s deposition testimony. The JCC also found that the claimant did not comply with the second requirement of Parodi which requires a reasonable amount of time for the Employer/Carrier to provide authorization.
The JCC found the claimant did not meet her burden of proof that the care rendered by Dr. Spirazza is compensable, reasonable, or medically necessary. The JCC accepted the testimony of Dr. Osiyemi, the Employer/Carrier’s IME infectious disease expert, as uncontroverted in that there were no significant findings and no evidence of an infection with the claimant. The JCC noted the hospital records clearly indicate the claimant was not sure if she was bitten by an insect as claimed and that she advised Dr. Osiyemi she scratched her face rather than being bitten by an insect.
Esad Babahmetovic v. Scan Design Florida, Inc./Zenith Insurance Company
JCC Lorenzen; Tampa District; Order Date: November 10, 2015
OJCC Case: 13-029994EHL; D/A: 10/9/2013
Claimant’s Counsel: Dennis A. Palso
Employer/Carrier’s Counsel: Thomas F. Scully
Briefly: ONE-TIME CHANGE; DAUBERT – On remand from the 1st DCA, the JCC found the claimant had an absolute right to a one-time change in physician as the Employer/Carrier accepted compensability of the injury, and, because the Employer/Carrier did not timely provide claimant with a one-time change, claimant is entitled to select a physician. Also, the JCC reviewed the Daubert requirements and found that Dr. Delgado’s testimony met the requirements of F.S. §90.702 and was admissible.
Summary: The Employer/Carrier did not challenge the claimant’s right to a one-time change of doctor because it agreed claimant suffered a compensable sprain, and there was no evidence of any event or factor contributing to the existence of the sprain other than the accident.
The JCC found the claimant had an absolute right to a one-time change in physician as the Employer/Carrier has accepted compensability of the injury, and, because the Employer/Carrier did not timely provide claimant with a one-time change, claimant is entitled to select a physician. The claimant selected Dr. Robert Kowalski.
The JCC also made findings that Dr. Delgado’s opinion as an authorized specialist satisfied F.S. §90.702(2013) and the Daubert test for admissibility of expert testimony. The JCC noted that Dr. Delgado assigned 60% of the cause of the claimant’s complaints to the pre-existing condition and 40% to the accident, but agreed at deposition that he used no particular method in arriving at these numbers. The claimant argued that Dr. Delgado’s opinion was inadmissible under Daubert, as Dr. Delgado had not identified the “reliable principles or methods” that he relied upon in reaching his opinion on major contributing cause.
The JCC found that Dr. Delgado’s testimony met the requirements of F.S. §90.702 and was admissible. The JCC also found that Dr. Delgado’s testimony was based on sufficient facts and data, that his opinion was a product of reliable principles and methods including obtaining a medical degree and training in the required field of neurosurgery, gaining experience in the practice of neurosurgery, obtaining diagnostic tests necessary to form opinions regarding diagnosis and treatment, obtaining treatment and history of the onset and progression of the complaints and symptoms, and obtaining findings in a clinical setting based upon a physical examination. The JCC also determined that Dr. Delgado applied the principles and methods in a reliable fashion to the facts of this case.