FL Case Law Summaries – 11/19/15
BY:
JCC ORDERS
Linda Brown v. Baldomero Lopez State Veterans Nursing Home/Division of Risk Management
JCC Rosen; St. Petersburg District; Order Date: November 17, 2015
OJCC Case: 15-002784SLR; D/A: 2/11/2014
Claimant’s Counsel: Joey D. Oquist
Employer/Carrier’s Counsel: Linda Muralt
Briefly: MAJOR CONTRIBUTING CAUSE; VOLUNTARY LIMITATION OF INCOME – JCC Rosen found the claimant established that the major contributing cause of the recommended total knee replacement was the compensable industrial accident and denied the defense that the claimant voluntarily limited her income.
Summary: The JCC accepted the testimony of the claimant’s IME physician, Dr. Fiore, that the industrial accident was the major contributing cause of the need for the claimant’s left total knee replacement and rejected the opinion of the treating physician, Dr. Palombo. The JCC found that Dr. Fiore’s deposition testimony was unwavering in his opinion on causal relationship. On the other hand, the JCC noted that Dr. Palombo altered his percentages of responsibility of the need for surgery, although always maintaining that the need for left knee replacement surgery was not related to the industrial accident by way of major contributing cause.
Additionally, the JCC accepted the claimant’s testimony that she could not meet the demands of the job offered by the Employer because of her restrictions and awarded temporary partial disability benefits.
John H. Green v. Green Mountain Specialty Corps./Amerisafe Risk Services, Inc.
JCC Anderson; Daytona Beach District; Order Date: November 17, 2015
OJCC Case: 15-009116WWA; D/A: 7/10/2014
Claimant’s Counsel: Keith C. Warnock
Employer/Carrier’s Counsel: Haadia A. Siddiqi & Mark S. Kluger
Briefly: DENTAL EVALUATION AND TREATMENT – JCC Anderson denied the claims for evaluation and treatment with a dentist to address a broken tooth and found that the claimant did not seek dental treatment for over nine months following the industrial accident.
Summary: The JCC rejected the claimant’s testimony that he broke his tooth in the industrial accident as less credible than the emergency room records that made no mention of dental injuries.
The JCC also rejected the opinion of Dr. Dean concerning the alleged dental injury and noted that Dr. Dean’s referral to a dentist was based solely on the history given to him by the claimant, a history the JCC rejected. The JCC also noted that claimant waited to mention he allegedly broke his tooth in the industrial accident until after he quit working for the Employer.
Jennifer Mielke v. R&L Carriers/CCMSI
JCC Hill; Gainesville District; Order Date: November 17, 2015
OJCC Case: 15-010535MRH; D/A: 6/3/2014
Claimant’s Counsel: Monte Shoemaker
Employer/Carrier’s Counsel: Scot Nimmo
Briefly: MEDICAL TREATMENT – JCC Hill granted the claimant’s Motion for Protective Order preventing the Employer/Carrier from authorizing a pain management evaluation in Orlando which would require the claimant to travel approximately two hours from her home or place of employment.
Summary: The JCC found it was unreasonable for the Employer/Carrier to require the claimant to travel approximately two hours for a pain management evaluation when several pain management physicians are located within fifteen minutes of her home.
Jaime P. Irby v. Alcove Assisted Living Facility/AmTrust North America of Florida
JCC Rosen; St. Petersburg District; Order Date: November 17, 2015
OJCC Case: 14-023955SLR; D/A: 6/10/2014
Claimant’s Counsel: Jason Kobal
Employer/Carrier’s Counsel: Gwen G. Jacobs
Briefly: ENTITLEMENT TO ATTORNEY’S FEES – JCC Rosen denied entitlement to attorney’s fees where the Employer/Carrier authorized the requested medical treatment within nine days following the filing of a Petition for Benefits, but where the claimant was unable to attend the authorized visit until four months from the time the Petition for Benefits was filed.
Summary: The JCC found the Employer/Carrier met its burden of furnishing an orthopedic physician and timely complied with the Petition for medical care. The JCC found that the delay in the medical treatment was solely due to events created by the claimant.
The JCC found the Employer/Carrier complied with F.S. §440.13 by timely furnishing the orthopedic physician requested in the Petition, and that the efforts of the Employer/Carrier to schedule an appointment with the authorized physicians were unintentionally thwarted by the claimant on two occasions, and with two different physicians.
Veronica Thomas v. Coca-Cola Bottling Company/Gallagher Bassett Services, Inc.
JCC Pitts; Orlando District; Order Date: November 17, 2015
OJCC Case: 10-020907NPP; D/A: 9/15/1979
Claimant’s Counsel: Thomas E. Mooney
Employer/Carrier’s Counsel: James F. Kidd
Briefly: ATTORNEY’S FEE AMOUNT – JCC Pitts awarded an attorney’s fee in the amount of $11,589.50, including taxable costs, based upon a reasonable hourly rate for attorney time of $250 for this 1979 date of injury.
Summary: The JCC noted that the parties stipulated to entitlement to a claimant’s attorney’s fee and costs. The JCC found that claimant’s counsel secured authorization of bilateral knee replacement surgery, but that the value of the benefits secured were unknown. Therefore, the JCC found that a guideline fee is incalculable and it was appropriate to award a reasonable attorney’s fee calculated on an hourly basis considering the date of accident.
Aura Mendoza v. Delano Hotel/Zurich American Insurance Company, Arrowood Indemnity Company
JCC Almeyda; Miami District; Order Date: November 17, 2015
OJCC Case: 02-039431ERA & 03-039454ERA; D/A: 10/25/2001
Claimant’s Counsel: William Souza
Employer/Carrier’s Counsel: Jorge Pena
Briefly: APPELLATE ATTORNEY’S FEE – JCC Almeyda awarded an appellate fee of $28,540.00 based upon a $400 per hour reasonable rate.
Summary: The JCC ordered an attorney’s fee to claimant’s counsel for prevailing in the Employer/Carrier’s appeal pursuant to an order of the 1st DCA. The JCC found that the appellate issues were not simple and involved a situation where the Employer/Carrier denied a return to an authorized doctor after the claimant’s condition was found not to be the result of the subject injury. The claimant prevailed at the trial level and at the appellate level.
The JCC noted that the Employer/Carrier suggested an hourly rate of $300-400 per hour while the claimant claimed an hourly rate in excess of $450 per hour. The JCC found that $400 per hour was a reasonable hourly rate for services performed by the attorney with the skill and reputation of claimant’s counsel, and that 71.35 hours were reasonable spent on the appeal.