FL Case Law Summaries – 11/24/15
BY:
JCC ORDERS
Kimberly Podvin v. WalMart Stores, Inc./Sedgwick CMS
JCC Lorenzen; Tampa District; Order Date: November 20, 2015
OJCC Case: 15-004436EHL; D/A: 1/9/2015
Claimant’s Counsel: Mark Lee
Employer/Carrier’s Counsel: Beatriz Justin
Briefly: MAJOR CONTRIBUTING CAUSE; MEDICAL NECESSITY – JCC Lorenzen ordered the Employer/Carrier to authorize surgery for the claimant’s low back injury and found, pursuant to F.S. §440.13(3)(d), that the Employer/Carrier was precluded from asserting medical necessity as a defense because it failed to timely respond to Dr. Bono’s requests for surgery.
Summary: The JCC stated it was irrelevant that the claimant had pre-existing degenerative arthritis of her lumbar spine at the level at which the surgery was proposed. The JCC found the Employer/Carrier previously accepted compensability of the injury and failed to prove claimant’s pre-existing degenerative disk disease required medical care before the accident or caused claimant to have some disability or impairment. More importantly, the JCC found the Employer/Carrier failed to prove the claimant had an intervening accident or developed an intervening condition which disrupted the causal relationship between the claimant’s compensable accident and compensable injury.
Michael W. McQuinn v. CW Roberts Contracting, Inc./Liberty Mutual Insurance
JCC D’Ambrosio; West Palm Beach District; Order Date: November 20, 2015
OJCC Case: 14-020110MAD; D/A: 3/31/2014
Claimant’s Counsel: Grethel San Miguel
Employer/Carrier’s Counsel: Jacqueline Steele
Briefly: PERMANENT TOTAL DISABILITY – JCC D’Ambrosio denied the claim for permanent total disability benefits, found the claimant has permanent work restrictions which, standing alone, are not totally disabling, and found that the claimant did not meet his burden of proof that he is permanently and totally disabled under F.S. §440.15(1)(b)(2013) and the factors under Blake v. Merck & Company, 43 So. 3d. 882 (Fla. 1st DCA 2010).
Summary: The JCC found the claimant is capable of suitable, gainful employment, but was not motivated or dedicated to perform a good faith job search. The JCC rejected the claimant’s testimony that he had applied for all of the jobs identified in the job leads provided to him.
The JCC accepted the testimony of vocational expert, Mr. Bill England, that acting on job leads promptly is critical and should take place within five days. The JCC found the claimant waited 2-3 weeks before applying to the job leads provided to him. Further, the JCC noted that the claimant testified he did not apply to job leads provided by Mr. England because he was not interested in 75% of them. The JCC found the claimant did not avail himself of the job placement assistance offered by England & Associates to include resume writing, job interviews and speaking with employers, and the claimant failed to complete the work history form provided to him.
Mark Richardson v. City of Jacksonville
JCC Holley; Jacksonville District; Order Date: November 20, 2015
OJCC Case: 14-024502WRH; D/A: 5/21/2014
Claimant’s Counsel: John J. Rahaim
Employer/Carrier’s Counsel: Thomas G. Portuallo
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Holley denied the claim for compensability of the claimant’s hypertension condition. However, the JCC awarded the claim for compensability of the claimant’s atrial fibrillation/arrhythmia and awarded authorization of a cardiologist to treat claimant’s hypertension to the extent that it is necessary to treat the atrial fibrillation.
Summary: The JCC found that the claimant was not able to establish that he passed a pre-employment physical examination indicating hypertension was not present and noted the pre-employment physical health questionnaire contained an admission of high blood pressure by the claimant. The JCC accepted the opinion of the authorized treating cardiologist under the 120 day provision, Dr. Dietzius, that the pre-employment physical exam report constituted evidence of hypertension. Consistently, the JCC noted the opinions of Dr. Dietzius and the medical notes of the claimant’s personal physicians reflecting a pre-existing diagnosis of hypertension.
As to the claim for arrhythmia or atrial fibrillation, the JCC rejected the opinion of Dr. Dietzius that the claimant’s risk factors for atrial fibrillation have risen to the level of actual causative factors. These factors included age, pre-existing hypertension, excessive exercise, and family history. The JCC rejected Dr. Dietzius’ opinion in favor of the opinion of the claimant’s IME physician, Dr. Mathias. The JCC stated; “Instead, the undersigned finds the testimony of Dr. Mathias to be more persuasive that the cause of the Claimant’s atrial fibrillation is not clear cut especially in light of the absence of such conditions such as hyperthyroidism and or hypertensive heart disease.”
The JCC found the Employer/Carrier should be responsible for treating the claimant’s hypertension in order to treat the compensable atrial fibrillation and awarded this treatment as long as medically necessary.