FL Case Law Summaries – 11/16/15
BY:
1st DCA Order
Clarence Hawkins, Sr. v. Publix Super Markets/Publix Risk Management
Appeal of the Order from JCC Margaret Sojourner
DCA Order Date: November 12, 2015
Case: 1D14-5420; D/A: 3/18/2009
Appellant’s Counsel: Bill McKabe & Pat DiCesare
Appellee’s Counsel: Thomas P. Vecchio
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS; REFUSAL OF EMPLOYMENT – The 1st DCA reversed JCC Sojourner’s order denying temporary partial disability benefits and found the order on appeal did not set forth sufficient findings to support the denial of temporary partial disability benefits for all relevant time periods.
Summary: Under F.S. §440.15(4)(a), an injured employee is entitled to temporary partial disability benefits if he demonstrates a causal connection between the compensable work place injury and subsequent wage loss by proof of physical restrictions that prohibit the injured employee from performing all of his job duties.
In the order on appeal, the JCC found that the claimant met his initial burden to establish entitlement to TPD benefits, but also that the Employer/Carrier satisfied the requirements of subsection §440.15(6), refusal of employment, so that no TPD benefits were due. The 1st DCA reversed and explained that subsection §440.15(6) provides for the disqualification for TPD during the continuance of the refusal of employment. The Employer/Carrier must establish the continued availability of a job for each applicable time period at issue in order to retain the benefit of the affirmative defense based on refusal of suitable employment.
In this case, the JCC made no specific findings establishing the date of initial offer of employment, the dates of continued availability of a suitable job, the dates of claimant’s refusal, or whether claimant’s refusal continued after he was terminated by the employer.
JCC Orders
Khemwattie Ragoobir v. Brandywine Convalescent Care Center/AmTrust North America of Florida and Associated Industries
JCC Condry; Orlando District; Order Date: November 12, 2015
OJCC Case: 10-026236WJC; D/A: 1/9/2009
Claimant’s Counsel: Scott Eldridge
Employer/Carrier’s Counsel: John S. Smith
Briefly: PREVAILING PARTY COSTS – JCC Condry awarded the Employer/Carrier $16,664.18 in prevailing party costs and found the Employer/Carrier was successful at three hearings regarding denial of permanent total disability benefits.
Summary: The JCC found the Employer/Carrier was successful in challenging the claimant’s entitlement to permanent total disability benefits including a successful reversal of a permanent total disability award, successfully securing an order denying permanent total disability benefits where the JCC relied solely on those matters as directed under the remand, and successfully denying a subsequent claim for permanent total disability benefits.
The Employer/Carrier filed a Motion to Tax Costs seeking costs in the amount of $16,664.18. After considering the Statewide Uniform Guidelines for taxation of costs in a civil action, the JCC found this amount to be related and not excessive.
The JCC noted the costs claimed by the E/C fell into to three general categories: the costs of depositions necessary for defense of the claim; the costs of expert fees involved in evaluating the claimant and rendering testimony; and the costs of resources such as rental of a conference room to facilitate the taking of a deposition of an expert. The JCC found that the costs claimed were relevant and clearly reasonable and necessary in the defense of the permanent total disability claims.
Jorge L. Galvez v. Ramada Inn Hollywood Beach Resort/Zenith Insurance Company
JCC Hill; Miami District; Order Date: November 12, 2015
OJCC Case: 02-053349CMH; D/A: 10/28/2002
Claimant’s Counsel: Michael S. Elstein
Employer/Carrier’s Counsel: Judith M. Blinderman
Briefly: ATTORNEY’S FEES – The date of accident in this case is 2002. JCC Hill directed the Employer/Carrier to pay claimant’s counsel the sum of $28,875.00 as a reasonable attorney’s fee based upon 105 hours of attorney time after considering objections to time such as hand-holding, travel time, intra-office conferences, and unrelated matters.
Summary: The dispute in this case primarily concerned the reasonableness of the legal hours invested in securing benefits. The parties stipulated to a reasonable hourly rate for legal services to be $275.
The JCC reviewed various objections to the time entries and struck 38.3 hours of legal time from claimant’s affidavit as either hand-holding, travel time, intra-office conferences, or unrelated matters.