FL Case Law Summaries – 11/20/15
BY:
JCC ORDERS
Magalie Cauvin v. Baptist Hospital/Johns Eastern
JCC Massey; Tampa District; Order Date: November 18, 2015
OJCC Case: 14-004873MAM; D/A: 12/16/2013
Claimant’s Counsel: Rene Hidalgo
Employer/Carrier’s Counsel: Maria Valdes
Briefly: MEDICAL TREATMENT – JCC Massey found the Employer/Carrier retained the right of selection of the authorized treating physician.
Summary: The JCC found that, once the Employer/Carrier accepted compensability of the disputed neck condition, or authorized the disputed treatment, the right of selection in physician reverted to the Employer/Carrier. The JCC found that since the Employer/Carrier accepted compensability of the previously disputed neck condition, the Employer/Carrier now controls the selection of the treating physician and nothing in the statute requires the Employer/Carrier to accept claimant’s selection for future care.
The JCC rejected the claimant’s argument that the physician who was previously authorized to treat the shoulder and back condition should now be authorized to treat the neck condition. The JCC stated he was not aware of any authority requiring the Employer/Carrier to authorize a physician different than the one they have selected for the neck.
Jason Lockley v. Metro Protective Services/Zurich American Insurance
JCC Lorenzen; Tampa District; Order Date: November 18, 2015
OJCC Case: 15-018901EHL; D/A: 7/28/2015
Claimant’s Counsel: Todd N. Parrish
Employer/Carrier’s Counsel: Peter J. Delahunty
Briefly: ATTORNEY’S FEES – JCC Lorenzen awarded claimant’s counsel attorney’s fees for securing a Response to a Request to Produce based upon Florida Rules of Civil Procedure, Rule 1.380, following the Employer/Carrier’s failure to comply with an order compelling discovery. The JCC noted that Florida Rules of Civil Procedure, Rule 1.380(b) states that the judge “shall require the party failing to obey the order to pay the reasonable expenses caused by the failure, which may include attorney’s fees, unless the court finds the failure was substantially justified or that other circumstances make an award of expenses unjust.”
Summary: The JCC found claimant’s counsel obtained an order compelling discovery and that the Employer/Carrier failed to comply with that order and that the rule mandated an award of reasonable expenses which could include attorney’s fees. The JCC could not find that the Employer/Carrier’s failure to comply with the order compelling discovery was justified or that an award of fees and costs would be unjust. The JCC ordered the carrier to pay claimant’s counsel an attorney’s fee in the amount of $1,025 and costs in the amount of $4.16.
Heather Mims v. College of Central Florida/Gallagher Bassett Services, Inc.
JCC Hill; Gainesville District; Order Date: November 18, 2015
OJCC Case: 06-028846MRH; D/A: 3/30/2006
Claimant’s Counsel: Mark Tipton
Employer/Carrier’s Counsel: Edward LeFever & Neal Patel
Briefly: ACUPUNCTURE AND COMPOUND CREAM – JCC Hill rejected the EMA opinion and granted the claim for continued authorization of acupuncture and for authorization of a compound pain cream.
Summary: The JCC noted that the Expert Medical Advisor, Dr. Dominguez, opined acupuncture was not reasonable and medically necessary as a result of the work accident. However, the JCC found clear and convincing evidence to reject the EMA’s opinion. The JCC listed six reasons to reject the EMA opinion, including the following: that the opinion of the EMA was equivocal and meandering; that the EMA was unfamiliar with the efficacy of acupuncture; that the EMA did not ask the claimant her level of pain while receiving acupuncture or compare it to her level of pain at the time of the examination; the EMA testified that if the claimant had relief of pain from acupuncture, that acupuncture should be continued; that instead of acupuncture that claimant should use oral medications which may cause liver damage; and that the EMA based his opinion on the continuing efficacy of acupuncture on his belief that treatment is “carrier driven” rather than treatment results.
With regard to a compound cream, the JCC rejected the Employer/Carrier’s argument that the compound cream was not FDA-approved and found that the pharmacy preparing the compound was licensed and regulated by the Department of Health and that compounds prescribed for individual patients were not required to be approved by the FDA. The JCC found that the Employer/Carrier’s assertion that the compound cream is an experimental drug is unsupported by persuasive evidence.
Amelia Perez-Mesa v. Miami-Dade Firefighters/Miami-Dade County Risk Management
JCC Almeyda; Miami District; Order Date: November 18, 2015
OJCC Case: 01-017319ERA; D/A: 3/17/2000
Claimant’s Counsel: Dierdre J. DiBiaggio
Employer/Carrier’s Counsel: Douglas W. Rice
Briefly: LACK OF PROSECUTION – JCC Almeyda denied the Employer/Carrier’s Motion to Dismiss Attorney’s Fees Claims for Lack of Prosecution on the basis that the statute of limitations is not running.
Summary: The JCC found that although more than one year has passed since the outstanding Petitions were resolved, the claimant is currently receiving permanent total disability and ongoing benefits and the statute of limitations is not running. The JCC also found that the ongoing benefits are a factor in determining the value of the fee.
Enrique Agras v. First Vehicle Services/Gallagher Bassett Services, Inc.
JCC Forte; Ft. Lauderdale District; Order Date: November 18, 2015
OJCC Case: 15-002636IF; D/A: 7/1/2013
Claimant’s Counsel: Michael G. Srebnick
Employer/Carrier’s Counsel: Philip R. Augustine
Briefly: MAJOR CONTRIBUTING CAUSE; IDIOPATHIC CONDITION – JCC Forte found there was no evidence that the claimant’s’ injury was caused by an idiopathic condition, and that the Employer/Carrier has confused an idiopathic condition with major contributing cause.
Summary: The JCC found there was no evidence presented that the claimant’s injuries arose from risks or conditions solely personal to the claimant.
The JCC noted the defense that the accident did not take place in the course and scope of employment was withdrawn, rendering “this case compensable.” The JCC found that “major contributing cause is not a defense to compensability, but treatment.” The JCC noted that the medical evidence consistently reflected that the industrial accident led to the rapid onset of degenerative findings in the claimant’s knee, which resulted in meniscal surgery.
Linda Gardner v. AVT Simulation/AmTrust North America of Florida
JCC Sculco; Orlando District; Order Date: November 18, 2015
OJCC Case: 14-008553TWS; D/A: 12/30/2013
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: George White
Briefly: MISREPRESENTATION DEFENSE – JCC Sculco denied the Employer/Carrier’s misrepresentation defense and awarded medical and disability benefits.
Summary: The Employer/Carrier alleged that the claimant misrepresented statements in her deposition testimony when she denied prior left hip symptoms, problems, or injuries.
The JCC noted that this is a very close issue, and that the Employer/Carrier’s argument is certainly not unreasonable under the circumstances. However, the JCC accepted the claimant’s testimony based on the JCC’s assessment of the claimant’s demeanor while testifying. The JCC found that the claimant’s testimony that her back was the origin of pre-existing symptoms in her left hip was not unreasonable.
Janie Travis v. Florida State Hospital/Division of Risk Management
JCC Lazzara; Tallahassee District; Order Date: November 18, 2015
OJCC Case: 10-013745JJL; D/A: 10/5/2006
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Susan Sapoznikoff
Briefly: MEDICAL TREATMENT – JCC Lazzara denied the claim for neurological care and found the claimant failed to carry her burden of proof that her work accident is the major contributing cause of the continued need for medical treatment.
Summary: The JCC found that the claimant sincerely believes her current physical condition and limitations are all related to her work accident. However, the JCC found no medical evidence to support her belief and noted the claimant was not able to present any medical evidence that contradicts the medical evidence presented by the Employer/Carrier.
Jacqueline Gratkowski v. Porky’s Last Stand/Summit
JCC Weiss; Ft. Myers District; Order Date: November 18, 2015
OJCC Case: 07-013894JAW; D/A: 10/2/2006
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: David Roos
Briefly: PREVAILING PARTY COSTS – JCC Weiss taxed costs against the claimant in the amount of $24,193.09.
Summary: The JCC accepted the Employer/Carrier’s argument that they were the prevailing party in fourteen Petitions for Benefits that had been filed on the claim from May 18, 2007, through August 22, 2014.
Jefforey A. Siegel, Sr. v. Big Chief Tire Company/Summit
JCC Holley; Jacksonville District; Order Date: November 18, 2015
OJCC Case: 09-027028WAH; D/A: 8/15/2006
Claimant’s Counsel: John J. Schickel
Employer/Carrier’s Counsel: Linda W. Farrell
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Holley granted the claim for permanent total disability benefits.
Summary: The JCC noted that the claimant is required to establish permanent total disability by presenting evidence of one of the following: 1) permanent medical incapacity to engage in at least sedentary employment within a fifty-mile radius of his home due to his physical limitations; 2) permanent work-related restrictions coupled with an exhaustive but unsuccessful job search; and 3) permanent work-related restrictions that, while alone not totally disabling, preclude a claimant from engaging in at least sedentary employment when combined with vocational factors. The JCC found the claimant’s physical capacity per the medical work restrictions appeared to indicate a sedentary to light-duty level and that it is evident the claimant did not conduct an exhaustive job search.
However, the JCC concluded that the claimant sufficiently established that he has permanent work-related physical restrictions that, while alone not totally disabling, preclude him in engaging in at least sedentary employment when combined with vocational factors. The JCC accepted the vocational expert testimony presented by the claimant via Mr. Gil Spruance as credible and persuasive over the opinions of Mr. Paul Moore and Mr. Jim Edleston. The claimant’s vocational factors described by Mr. Spruance include, but are not limited to, not possessing a high school diploma or GED, not being employed since 2008, and the claimant’s age of 51 years.