FL Case Law Summaries – 11/25/15
BY:
JCC ORDERS
Magalie Cauvin v. Baptist Hospital/Johns Eastern Company
JCC Massey; Tampa District; Order Date: November 23, 2015
OJCC Case: 14-004873MAM; D/A: 12/16/2013
Claimant’s Counsel: Rene Hidalgo
Employer/Carrier’s Counsel: Maria Valdes
Briefly: MOTION TO TRANSFER CARE – JCC Massey granted the Employer/Carrier’s Motion to Transfer Care from Dr. Kenneth Hodor to another orthopedist specialist pursuant to F.S. §440.13(2)(d), which permits a transfer of care if an independent medical examination determines that the claimant is not making appropriate progress in recuperation.
Summary: The Employer/Carrier sought a transfer of care and argued that the claimant has not made appropriate progress under the care of Dr. Hodor. The Employer/Carrier argued the lack of progress was apparent in Dr. Hodor’s records as well as the opinion testimony of Dr. Keyes, the Employer/Carrier’s IME physician. The JCC agreed that the claimant made little to no progress in recuperation under the care of Dr. Hodor and found as follows: that well over a year into the treatment of the claimant, Dr. Hodor has not even been able to arrive at a definitive diagnosis; that the claimant continues to have the same complaints and symptoms with no improvement and in some instances worsening; and that the claimant continues to have the same restrictions and she has not been placed at maximum medical improvement nor does it appear to be on the horizon. Also, the JCC noted Dr. Hodor continues to prescribe the same medications and the same therapy, modalities, and treatment, even though they are not working and are not leading to any improvement.
The JCC rejected the claimant’s testimony at hearing that she has experienced improvement and found the claimant’s testimony was inconsistent with the medical records wherein the claimant continues to complain of the same or worsening pain each visit.
Additionally, the JCC rejected the claimant’s argument that it would not be in her best interests to disrupt the physician/patient relationship she has established with Dr. Hodor.
Gary L. Hunter v. City of Jacksonville/City of Jacksonville Risk Management
JCC Humphries; Jacksonville District; Order Date: November 23, 2015
OJCC Case: 87-000368RJH; D/A: 3/11/1987
Claimant’s Counsel: William G. McLean
Employer/Carrier’s Counsel: Michael Arington & Thomas Portuallo
Briefly: MISREPRESENTATION; MEDICAL TREATMENT– JCC Humphries denied the defense of misrepresentation, granted a claim for a driving evaluation at the expense of the Employer, and denied numerous claims for authorization of medical treatment including the following: treatment with a podiatrist; aquatic therapy; TENS unit; medications; MRI; treatment with a physiatrist; endocrinology treatment; nutritionist; treatment for diabetes; and treatment for hypertension.
Summary: JCC Humphries found the claimant likely did not disclose full and complete histories and, perhaps, disclosed somewhat inaccurate histories. However, the JCC rejected the 13 separate instances of alleged misrepresentation raised by the Employer and was unable to reach a conclusion that the claimant’s state of mind was such that he was attempting to fraudulently obtain benefits to which he would not otherwise be entitled. The JCC accepted the claimant’s argument that many of the statements made to his physicians were made to advocate his understanding of what had taken place, rather than a misstatement of the relevant history.
The JCC awarded a driving evaluation based upon the claimant’s IME physician’s testimony that the claimant needs a driving evaluation and hand controls because he does not have adequate neuromuscular control of his feet to safely operate a motor vehicle with foot pedals. The JCC rejected the Employer/Carrier’s argument that a driving evaluation should be denied because no physician recommended revocation of the claimant’s driver’s license and that the issue was previously adjudicated by a prior JCC.
The JCC denied numerous requests for medical treatment on various grounds and accepted the opinion of the Employer/Carrier’s IME physician, Dr. Kramerich, over the claimant’s IME physician on the causal relationship or medical necessity of the claimed treatment. The JCC also found that the “hindrance” theory to recovery does not apply, again accepting the opinion of Dr. Kramerich over the claimant’s IME physician. Further, the JCC found that certain issues were previously adjudicated by a prior JCC.
Ashon J. Lillie v. Florida City Police Dept./Gallagher Bassett Services, Inc.
JCC Medina-Shore; Miami District; Order Date: November 23, 2015
OJCC Case: 14-016437SMS; D/A: 6/30/2013
Claimant’s Counsel: Barry A. Pemsler
Employer/Carrier’s Counsel: Eric L. Stettin
Briefly: ARISING IN THE COURSE AND SCOPE OF EMPLOYMENT; GOING AND COMING RULE– The claimant was a patrolman for Florida City who was injured in a traffic accident. JCC Medina-Shore denied compensability of the accident and found the claimant was not acting in the course of his employment or discharging his primary responsibility within the state when the accident occurred. The JCC found the claimant was injured while off-duty, following the end of his shift on an off-duty detail, while driving his personal vehicle and wearing his police officer’s uniform.
Summary: The claimant argued his injuries are compensable pursuant to F.S. §440.091(1) which states an accident is compensable if a law enforcement officer is acting in the course of his employment and discharging his primary responsibility within the state in a place and under circumstances reasonably consistent with that primary responsibility. The JCC ultimately found the claimant is not entitled to the statutory presumption and that the subject accident is barred by the going and coming rule.
The JCC also found the claimant’s testimony regarding the events leading to his accident was not reliable or credible after he provided three different accident versions, one of which was that the accident occurred when he attempted to obtain identification of a speeding brown car.
Julie Huffman v. Steak N Shake/Gallagher Bassett Services, Inc.
JCC Pitts; Orlando District; Order Date: November 23, 2015
OJCC Case: 15-20191NPP; D/A: 3/17/2015
Claimant’s Counsel: David E. Mallen
Employer/Carrier’s Counsel: Alan D. Kalinoski
Briefly: MISREPRESENTATION DEFENSE – JCC Pitts found the claimant is barred from receiving any further benefits pursuant to F.S. §440.09 and F.S. §440.105.
Summary: The JCC found that the claimant made objectively false, fraudulent or misleading statements in order to secure workers’ compensation benefits, and cited various misrepresentations in the claimant’s deposition testimony as compared to her testimony at hearing. The JCC detailed various misrepresentations regarding the claimant’s ability to perform post-accident and post-employment activities.
Mona Evetta St. Brice v. School Board of Broward County
JCC Lewis; Ft. Lauderdale District; Order Date: November 23, 2015
OJCC Case: 14-025662DAL; D/A: 10/22/2010
Claimant’s Counsel: D. Robert Wells
Employer/Carrier’s Counsel: Diane Hernandez
Briefly: STATUTE OF LIMITATIONS – JCC Lewis denied the claims for determination of compensability and found the claimant’s Petition for Benefits to be barred by the expiration of the statute of limitations.
Summary: The evidence revealed that the last medical care furnished to the claimant by the Employer/Carrier was on October 27, 2010. The claimant filed her Petition for Benefits on November 5, 2014, in excess of two years after the date of accident and more than one year from the date of the Employer/Carrier’s last furnishing of medical treatment.
The claimant argued the Employer/Carrier should be estopped from raising the statute of limitations defense because she was never advised of the limitations. The JCC accepted the testimony of the manager of the workers’ compensation department for the Employer who testified that it was the Employer’s routine course of business to send the injured worker, within three days after notification of an injury, an Orientation for Injured Workers’ Rights and Obligations packet or booklet and that the packet was sent to the claimant on October 25, 2010, via UPS. The packet included information about the applicable statute of limitations.
The JCC also found that the claimant has another pending workers’ compensation claim and that she was sent the appropriate statute of limitations information informing her of her rights, benefits, and procedures for obtaining benefits, including the applicable limitations.