FL Case Law Summaries – 11/23/15
BY:
1ST DCA ORDERS
Jose Gomez-Lujano v. Palm Beach Grill-Houston’s Restaurant/Travelers Insurance
Appeal of the Order from JCC Punancy
DCA Order Date: November 19, 2015
Case: 1D15-670; D/A: 10/31/2001
Appellant’s Counsel: Kimberly A. Hill
Appellee’s Counsel: Jerry M. Hayden & Willie B. Ramhofer
Briefly: 104-WEEK STATUTORY LIMITATION – The 1st DCA affirmed JCC Punancy’s order denying the requests for permanent total disability benefits and temporary benefits beyond the 104-week statutory limitation.
Summary: The 1st DCA affirmed the JCC’s denial of permanent total disability benefits beyond the 104-week statutory limitation on temporary benefits on the grounds that the claimant did not meet his burden to prove entitlement to PTD under the law in effect on the date of the accident. The 1st DCA cited Westphal v. City of St. Petersburg, 122 So. 2d 440 (Fla 1st DCA 2013) and held Westphal makes a claimant “eligible to assert a claim for permanent total disability benefits” but does not automatically entitle a claimant to payment of PTD. The claimant will still be required to present evidence that he otherwise meets the legal standards for such an award.
The DCA affirmed the JCC’s denial of temporary benefits beyond the 104-week statutory limitation and rejected the claimant’s constitutional challenges to the 104-week limit on temporary benefits by citing prior DCA decisions on the issue; Vancamp v. Decision HR 30, Inc., 40 Fla L. Weekly D1941 (Fla 1st DCA Aug. 19, 2015) and Ramirez v. Jorda Enters, Inc., 164 So. 3d 1291 (Fla 1st DCA 2015).
JCC ORDERS
Shirley Robinson v. Jackson Memorial Hospital/CCMSI
JCC Hill; Gainesville District; Order Date: November 19, 2015
OJCC Case: 14-000530MRH; D/A: 10/30/2013
Claimant’s Counsel: Michael M. Riedhammer
Employer/Carrier’s Counsel: Daron S. Fitch
Briefly: “ARISING OUT OF” – JCC Hill denied compensability of an accident where the claimant was stabbed several times by a co-worker at work and found the employment did not substantially contribute to a risk of injury that the claimant was not normally exposed to during her life outside of work.
Summary: The JCC found that the claimant was stabbed several times by a co-worker in the break room at work. Claimant and the co-worker lived together. The co-worker and the claimant originally met at work, and had known each other approximately two years before the stabbing. Although they worked for the same employer on the same shift, they worked for different departments, in different locations, had different duties, and different supervisors. The co-worker later pled guilty to attempted murder and testified that she attacked the claimant because she “wanted to be with” the claimant and the argument had nothing to do with work.
The JCC acknowledged the Employer/Carrier must pay workers’ compensation benefits if the employee sustains an injury arising out of work performed in the course and scope of employment, including when the employment exposes the claimant to conditions that substantially contribute to the risk of injury and to which the claimant would normally not be exposed during her life outside employment. However, the JCC found that the animosity or dispute in this case culminated in assault for reasons that were imported into the employment from the claimant’s domestic or private life, and were not exacerbated by employment. The JCC found that the fact that the assault occurred on the Employer’s premises was merely fortuitous.
Tracy Miles v. Gillette Construction Services/Guarantee Insurance Company
JCC Massey; Tampa District; Order Date: November 19, 2015
OJCC Case: 12-009194MAM; D/A: 1/26/2012
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Kate Albin
Briefly: MISREPRESENTATION DEFENSE – JCC Massey found the claimant forfeited his right to workers’ compensation benefits by making false statements to his treating physicians and in deposition when he denied having any low back injuries, low back pain or low back treatment prior to the date of accident.
Summary: The JCC found that the records placed into evidence showed convincingly that the claimant had a low back injury and significant complaints of low back pain and treatment within one year prior to the industrial accident.
The JCC noted that the claimant was provided with two chances to appear at the final hearing and failed to appear after proper notice in both instances.
Vernesheya Brooks v. Premiere Cinema/Travelers Insurance
JCC Pitts; Orlando District; Order Date: November 19, 2015
OJCC Case: 15-019283NPP; D/A: 6/19/2015
Claimant’s Counsel: David E. Mallen
Employer/Carrier’s Counsel: Thomas H. McDonald
Briefly: MOTION FOR ADVANCE – JCC Pitts denied two Motions for Advance filed by the claimant.
Summary: The JCC noted the claimant had a prior workers’ compensation accident involving injuries and treatment that overlapped with the instant workers’ compensation accident. The JCC denied the first Motion for Advance on the grounds that the JCC previously awarded a $2,000 advance associated with the prior workers’ compensation accident and determined there was no plausible nexus to justify needs arising from or related to the second workers’ compensation claim.
The JCC denied the second Motion for Advance in excess of $2,000 on the grounds that it would materially prejudice the Employer/Carrier and is not reasonable under these circumstances. The JCC noted that an advance in excess of $2,000 may be awarded pursuant to the statute if the JCC upon investigation finds that such advance payment is for the best interests of the person entitled to compensation, and will not materially affect the rights of the Employer/Carrier, and is reasonable under these circumstances. Here, the claimant was released full-duty and the JCC found the rights of the Employer/Carrier would be materially prejudiced if another advance was awarded.
Kathleen A. Morgan v. American Road Management, Inc./PMA Insurance Group
JCC Condry; Orlando District; Order Date: November 19, 2015
OJCC Case: 12-009627WJC; D/A: 11/16/2011
Claimant’s Counsel: Glen D. Wieland
Employer/Carrier’s Counsel: Gina M. Jacobs
Briefly: MEDICAL NECESSITY – JCC Condry denied the request for authorization of bone graft surgery and found that the surgery is no longer medically necessary.
Summary: The JCC found that based on the un-contradicted testimony of Dr. Christopher Mason, the authorized treating physician, the claimed bone graft surgery is no longer medically necessary.
The JCC also denied the Employer/Carrier’s request that the claimant’s care be transferred to another physician and found that a transfer of care at this time is not in the claimant’s best interests. The JCC explained that given the complications with this injury, including delays in certain treatments and the longstanding doctor-patient relationship, the problems with the claimant’s fracture healing is not due to improper care, support, or treatment administered by Dr. Mason.