FL Case Law Summaries – 1/12/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
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First DCA Orders
Vincent Jones v. Food Lion, Inc. and Risk Management Services
JCC Humphries: Jacksonville District Opinion Date: November 9, 2016
OJCC Case: 12-004946RJH Date of Accident: 10/10/11
Claimant’s Counsel: Bill McCabe Employer/Carrier’s Counsel: Janelle Koren
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Indemnity Benefits – The First DCA ruled that the Claimant’s request for PTD was not ripe as he had not yet reached overall MMI. It was further determined that the Florida Supreme Court’s decision in Westphal extending TTD benefits to a maximum of 260 weeks applied to TPD benefits as well. Therefore, a Claimant would be entitled to a total of 260 weeks of TTD and/or TPD benefits combined.
Summary: At the time of the Final Hearing, the parties agreed that the Claimant had not reached overall MMI and that the Claimant would be eligible for TPD benefits if not for the expiration of the 104 week limitation. The JCC denied the Claimant’s Petition for PTD and/or continuing TPD benefits ruling that the 260 week limit applied in Westphal only applied to Claimants who were temporarily totally disabled at the end of the 104 weeks, not those who were temporarily partially disabled.
The First DCA concluded that the Florida Supreme Court’s use of the phrase “temporary disability benefits” implies that the 260 week cap applies to both TTD and TPD benefits. The JCC’s determination that the claim for PTD was premature was upheld, not for the reasons explained by the JCC, but by the interpretation of Westphal. The Claimant could not be considered for PTD benefits without having reached overall MMI.
Vincent Sansone v. Frank Winston Crum Insurance, Inc.
JCC D’ Ambrosio: West Palm Beach District Opinion Date: November 2, 2016
OJCC Case: 15-000982MAD Date of Accident: 1/14/15
Claimant’s Counsel: Kimberly Hill Employer/Carrier’s Counsel: William Rogner and Paul Luger
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Attorney’s Fees – So long as the Employer/Carrier accepts responsibility for payment of medical fees within thirty days of a PFB, the Employer/Carrier will not be liable for attorney’s fees regardless of whether the medical bills are paid before or after the thirty day deadline.
Summary: Claimant’s Counsel filed a PFB and within thirty days, the Employer/Carrier rescinded its denial, paid the indemnity benefits and accepted responsibility for paying the hospital bills. Claimant’s Counsel then filed a separate PFB seeking attorney’s fees for obtaining payment of the medical bills.
An award of attorney’s fees requires some part of the “successful prosecution” to occur after thirty days. The First DCA rejected Claimant’s argument that the PFB was not “successfully prosecuted” until the hospital bills were actually paid. The actual benefit the Claimant received was not the Employer/Carrier’s payment to the hospital; it was his being relieved of any obligation to pay the hospital himself. Therefore, because the Employer/Carrier accepted responsibility to pay the hospital bills within thirty days, no attorney’s fees attached.
Clifford Lo Sasso v. Advanced Auto Parts and Sedgwick CMS Inc.
JCC Iliana Forte: Fort Lauderdale District Opinion Date: November 1, 2016
OJCC Case: 11-008191IF Date of Accident: Multiple
Claimant’s Counsel: Bill McCabe Employer/Carrier’s Counsel: Christopher Thorne
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Average Weekly Wage; Medical Benefits (Authorization) – The Claimant was involved in three separate dates of accident (“DOAs”) which were consolidated prior to the Final Hearing. The JCC denied the Claimant’s request for an upward adjustment of the AWW for two of the three DOAs as the AWW for both of those DOAs were ripe at the time of the previous Final Merit Hearing. The JCC also denied the Claimant’s request for authorization of pain management as that issue had been litigated in a prior Final Merit Hearing and the mere occurrence of an MRI did not warrant the re-litigation of that issue. The First DCA affirmed all of these decisions per curium.
Summary: The Claimant was involved in three separate DOAs. Indemnity benefits were at issue for the first two DOAs at the time of the prior Final Hearing. Both parties listed an AWW of $600 on the pretrial stipulation and the issue was not discussed at the Final Hearing. The Claimant later sought to raise the AWW to include fringe benefits which had been terminated subsequent to the DOAs. The JCC nevertheless denied the modification of the AWW as the issue was ripe at the time of the prior Final Hearing and was therefore barred by res judiciata.
The Claimant also sought authorization of a pain management physician despite that benefit being denied in a prior Compensation Order. While an MRI had been performed subsequent to the Compensation Order, the Claimant’s condition had either remained the same or actually improved since that time. The mere fact that an MRI was performed does not warrant a reconsideration of the issue absent a significant change in the Claimant’s condition.
Hernando County Sherriff’s Office and Florida Sherriff’s Workers’ Compensation v. Thomas Scotti
JCC Massey: Tampa Disctrict Opinion Date: November 1, 2016
OJCC Case: 13-025556MAM Date of Accident: 1/23/13
Claimant’s Counsel: Nicole E. Tsambis Employer/Carrier’s Counsel: James N. Mcconnaughhay, and E. Louis Stern
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Average Weekly Wage; Indemnity Benefits; Expert Opinion; Fraud/Misrepresentation – The First DCA affirmed the JCC’s denial of the upward adjustment of AWW, indemnity benefits and authorization of an epidural steroid injection. The JCC also rejected the Employer/Carrier’s fraud defense despite finding that numerous statements made by the Claimant as well as surveillance footage were highly inconsistent with the Claimant’s subjective complaints. The First DCA affirmed all of these decisions per curium.
Summary: AWW: The Claimant sought an upward adjustment of the AWW but could not present any evidence in support of a number greater than that proposed by the Employer/Carrier. There were two wage statements with differing AWW calculations but the JCC found that the wage statement relied upon by the Employer/Carrier was more accurate and denied the upward adjustment.
Indemnity Benefits: While the JCC accepted the EMA’s opinion that the Claimant was not at overall MMI, he found no evidence that the Claimant’s alleged loss of wages were casually connected to the workplace accident. All of the authorized treating physicians released the Claimant to full duty and the Claimant’s IME made no mention of – nor was he asked to address – the Claimant’s work restrictions. The JCC also rejected the Claimant’s entitlement to any TPD benefits for the periods he was placed on light duty as those restrictions were based solely on claimant’s subjective complaints, unsubstantiated by any relevant objective medical findings.
Expert Opinion: The EMA was asked to determine whether the epidural steroid injection recommended by Claimant’s IME was reasonable and medically necessary. The EMA testified during his deposition that, “I think it is possible he would benefit from an epidural steroid in the cervical spine.” The JCC rejected this opinion and found clear and convincing evidence to contradict the EMA’s opinion. The JCC found that all the objective medical evidence failed to support the medical necessity of the ESI and that the EMA did not affirmatively recommend the injection. The DCA upheld the JCC’s rejection of the EMA’s opinion.
Fraud/Misrepresentation: The JCC reluctantly rejected the Employer/Carrier’s fraud defense. He found that many of the statements made by the Claimant at deposition and to his treating physicians were “misleading” but were not technically false. The Claimant’s arguments against the fraud defense included such as “just because someone checks the box that says ‘I can lift very light weights’ doesn’t necessarily mean they are incapable of lifting medium or heavy weights.”
Iraida Rolland v. Rural King and Sedgwick CMS
JCC Rosen: St. Petersburg District Opinion Date: November 17, 2016
OJCC Case: 15-021674SLR Date of Accident: 7/18/15
Claimant’s Counsel: Katherine Stone Employer/Carrier’s Counsel: Christopher A. Thorne
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Indemnity Benefits (Voluntary Limitation of Income & Misconduct) – The Claimant injured her knee as the result of an accident while working for the Employer, Rural King. The JCC awarded TPD benefits from the DOA until the date the Claimant was released to full duty by her authorized treating physician. All subsequent indemnity benefits were denied based on misconduct and voluntary limitation of income. The First DCA affirmed all of these decisions per curium.
Summary: The JCC noted the abundance of conflicting testimony at the Final Hearing but determined that the Claimant was involved in a compensable accident while working for Rural King on July 19, 2015. The Claimant was released to full duty on September 22, 2015. The Claimant continued to work for her concurrent employer, Freeway Insurance, until she was terminated for misconduct on October 27, 2015 after cursing loudly in front of customers and other coworkers. Despite Rural King’s testimony that the Claimant was repeatedly offered light duty work, the JCC determined that the conflicting testimony as to the light duty work entitled the Claimant to TPD benefits from the DOA until the date she was released to full duty.
The Claimant was not entitled to any indemnity benefits between being released to full duty and her termination from the concurrent employer as there was work available for the Claimant at that time with Rural King. All indemnity benefits after her termination from Freeway Insurance were denied based on the misconduct and voluntarily limiting her income by not attempting to return to Rural King.
School Board of Osceola County/Johns Eastern Company, Inc. v. Sheila Stone
JCC Pitts: Orlando District Opinion Date: November 10, 2016
OJCC Case: 15-006099NPP Date of Accident: 3/8/13
Claimant’s Counsel: Nicholas Shannin Employer/Carrier’s Counsel: Pamela Cox and Jodi Mustoe
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: One Time Change – JCC Pitts ruled that the Claimant was entitled to a one time change in Orthopedic Physician despite a previous Final Order ruling that the Claimant was not entitled to post-MMI treatment. Because the Employer/Carrier did not authorize the one time change within the five day period, the Claimant was allowed to choose her own physician. The First DCA affirmed this decision per curium.
Summary: A final hearing was conducted on October 27, 2015 and denied without prejudice the Claimant’s request for post-MMI care with the authorized Orthopedic Physician. On October 29, 2015, the Claimant filed a PFB requesting a one time change in Orthopedic Physician. The Employer/Carrier responded on November 3, 2015 that “pursuant to JCC’s Order dated October 29, 2015, no further orthopedic treatment is medically necessary.”
The JCC ruled that the determination that the Claimant was not entitled to post-MMI care did not preclude the Claimant from requesting a one time change. The Employer/Carrier’s argument that a one time change was barred by res judicata pursuant to the prior Final Order was also denied as no one time change request had been made prior to that Final Hearing.