FL Case Law Summaries – 11/17/15
BY:
JCC Orders
Luis Rodriguez v. Demetech Corp./Normandy Insurance Company
JCC Medina-Shore; Miami District; Order Date: November 13, 2015
OJCC Case: 14-028630SMS; D/A: 8/5/2014
Claimant’s Counsel: David Benn
Employer/Carrier’s Counsel: Kurt Wirsing
Briefly: ONE-TIME CHANGE – JCC Medina-Shore awarded the claimant a choice in a one-time change in physicians and found that the Employer/Carrier failed to authorize Dr. Grossman as a one-time change in compliance with F.S. §440.13(13)(a) and (b) in that Dr. Grossman was paid fees in excess of the fee schedule.
Summary: The claimant requested a one-time change in orthopedic spine surgeons and the Employer/Carrier responded by offering Dr. Warren Grossman. Dr. Grossman provided the Employer/Carrier a letter of agreement wherein the carrier agreed to reimburse the doctor at various amounts in excess of the workers’ compensation fee schedule.
The JCC found that the claimant satisfied his burden of proof that the Employer/Carrier impermissibly reimbursed the doctor for services in excess of the applicable fee schedule. The JCC found the adjuster’s lack of knowledge of the statutory fee schedule was no excuse for the Employer/Carrier failing to abide by F.S. §440.13(13)(a) and (b). The JCC found the Employer/Carrier paid Dr. Grossman in excess of the statutory maximum reimbursement allowed for his services and that Dr. Grossman’s testimony is inadmissible as evidence. The JCC granted the claimant’s Motion to Strike the opinions of Dr. Grossman and awarded the claimant a one-time change in spine surgeon of his choosing.
Ann Marie Limith v. Lenox on the Lake/Crum & Forster Insurance Company
JCC Forte; Ft. Lauderdale District; Order Date: November 13, 2015
OJCC Case: 11-024253IF; D/A: 11/29/2010
Claimant’s Counsel: Kevin R. Gallagher
Employer/Carrier’s Counsel: Andrew Borah
Briefly: AUTHORIZATION OF MEDICAL TREATMENT – JCC Forte accepted the Employer/Carrier’s argument that even in a compensable case, the claimant has the burden of proof to establish the medical necessity of the requested treatment. The JCC disagreed with the claimant that the Employer/Carrier must continue to authorize care absent the Employer/Carrier establishing a break in the chain of causation or major contributing cause.
Summary: JCC Forte denied authorization of a follow-up appointment with the authorized provider, denied authorization of a neurosurgeon, and found the claimant failed to establish “what treatment she is indeed requesting.” The JCC found that the claimant’s claims for treatment are based on the position that simply because a physician did not believe the claimant needed treatment in the past, does not mean that she may not need treatment in the present or future. The JCC rejected the claimant’s argument and noted the claimant is five years post-accident and went four years without seeking medical treatment, despite having been provided authorization in 2011.
The claimant testified that she was previously placed at maximum medical improvement in 2010 with a 0% permanent impairment rating. The JCC accepted the unrefuted opinion of Dr. Thaker that the claimant does not require any further work up or treatment for her sole complaints of headaches.
Gerdeline Jean-Francois v. Department of Juvenile Justice/Division of Risk Management
JCC Rosen; St. Petersburg District; Order Date: November 13, 2015
OJCC Case: 15-018534SLR; D/A: 7/23/2015
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Valerie Alou
Briefly: MOTION TO ENFORCE SETTLEMENT – JCC Rosen denied the Motion to Enforce Settlement and found the claimant did not clearly understand all the terms of the settlement and that there was no meeting of the minds on all elements of the proposed agreement.
Summary: Prior to a state mediation taking place, the claimant’s former counsel accepted the offer of settlement made by the Employer/Carrier and filed a Notice of Settlement with the court.
The claimant testified and was very articulate. The JCC accepted the testimony of the claimant that she was confused and did not understand that she would have to give up any other claims against her employer if she settled the workers’ compensation claim. The JCC found that the elements of the proposed settlement were not fully communicated to the claimant.
Clyde Coley v. Bromley Pallets, IFCO/Liberty Mutual Insurance
JCC Pitts; Orlando District; Order Date: November 13, 2015
OJCC Case: 02-047025NPP; D/A: 11/6/2000
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Todd R. Bohnenstiehl & Edward C. Duncan
Briefly: ATTORNEY’S FEES –JCC Pitts awarded an attorney’s fee in the amount of $9,341.51, based on an hourly rate of $275 per hour for this claim with a D/A of 11/6/2000.
Summary: JCC Pitts determined that a reasonable hourly rate to award the claimant’s counsel for handling this claim is $275 per hour. The JCC pointed out he was not provided with a range of proposed hourly rates from the parties, but was provided with either $150 an hour as recommended by the Employer/Carrier, or $275 per hour as recommended by claimant’s counsel. The JCC pointed out that case law does not allow the JCC to award an hourly attorney’s fee not established in evidence by sworn testimony. Based upon the evidence before JCC, the hourly rate of $275 was determined to be more reasonable than the $150 per hour. The JCC also awarded paralegal time at $64 an hour.
Based upon a number of objections raised by the Employer/Carrier, the JCC struck various time entries alleged by claimant’s counsel, including striking any time requested prior to March 28, 2012, the date the claimant came into the office of claimant’s counsel seeking to move forward on his case. The JCC also struck time associated with benefits which were not secured, including IMEs, time associated with the Medicare lien, and time spent on a deposition that was not introduced into evidence where there was no testimony regarding its relevance. The JCC also struck various time entries where the paralegal and the attorney claimed hours for preparing the same documents.
Clyde Coley v. Bromley Pallets, IFCO/Liberty Mutual Insurance
JCC Pitts; Orlando District; Order Date: November 13, 2015
OJCC Case: 02-047025NPP; D/A: 11/6/2000
Claimant’s Counsel: Wendy S. Loquasto & Bradley G. Smith
Employer/Carrier’s Counsel: Todd Bohnenstiehl & Edward C. Duncan
Briefly: TAXABLE COSTS – JCC Pitts awarded taxable costs payable by the Employer/Carrier to the claimant in the amount of $261.84, but sustained various objections raised by the Employer/Carrier to costs.
Summary: The JCC granted the Motion to Tax Costs against the Employer/Carrier. However, the JCC denied certain requested costs as follows: costs associated with benefits denied; costs associated with Rule Nisi fees that were not before the JCC; costs associated with the deposition of the adjuster that was not submitted into evidence; costs for medical transportation not awardable under the Uniform Guidelines; and costs not sufficiently itemized to allow a meaningful review and unsupported as related to the underlying benefits secured.
Marielena Llopez v. Festival Food Market, Inc./AmTrust North America of Florida
JCC Hogan; Ft. Lauderdale District; Order Date: November 13, 2015
OJCC Case: 11-029896GBH; D/A: 5/4/2010
Claimant’s Counsel: Ivan P. Morales
Employer/Carrier’s Counsel: Willliam Goran
Briefly: AUTHORIZATION OF MEDICAL TREATMENT – JCC Hogan accepted the opinion of the Expert Medical Advisor and granted the claim for reauthorization of Dr. Kester Nedd for neurological treatment.
Summary: The JCC accepted the testimony of the Expert Medical Advisor, Dr. David Ross. The Expert Medical Advisor testified that the claimant was suffering from an adjustment disorder known as the “Nocebo Effect” where claimant is under expectations created by bad information. The doctor explained that Nocebo Effect occurs when a doctor gives negative information to a patient that is potentially misconstrued as creating a more serious condition. According to the testimony of Dr. Ross, the claimant needed continuing medical treatment to understand the Nocebo Effect, including medical treatment to gradually reduce her medications.