FL Case Law Summaries – 11/3/15
BY:
JCC Orders
Leslie Shelton v. Broward County Transit Authority/Broward County Risk Management
JCC Roesch; Panama City District; Order Date: October 30, 2015
OJCC Case: 12-002860LAR; D/A: 7/13/2011
Claimant’s Counsel: Joan Horenstein
Employer/Carrier’s Counsel: Marybell Rajo
Briefly: ATTORNEY FEE ENTITLEMENT – JCC Roesch denied claims for attorney’s fees pursuant to F.S. §440.34 and F.S. §57.105(1).
Summary: The JCC denied attorney’s fees entitlement under F.S. §440.34 and found claimant’s counsel’s position to be convoluted, unclear, and difficult to correlate with any Petition for Benefits asserted as a basis for a fee.
The JCC also denied entitlement under F.S. §57.105(1) and found that the JCC does not have jurisdiction to award entitlement to a fee under that particular statutory section. The JCC noted that an award of attorney’s fees under this provision is considered a penalty or sanction to be imposed upon a party for maintaining an untenable or frivolous action.
Kathleen Anderson v. Krispe Kreme/USIS
JCC Anderson; Daytona Beach District; Order Date: October 30, 2015
OJCC Case: 14-020671WWA; D/A: 10/10/2013
Claimant’s Counsel: Pro se; formerly Darren Coleman
Employer/Carrier’s Counsel: Nicole Florentino
Briefly: CLAIMANT’S MOTION TO SET ASIDE SETTLEMENT– JCC Anderson denied the claimant’s Motion to Set Aside the Settlement and noted that the pro se claimant testified that she had not been forced or coerced into any settlement and freely and voluntarily entered into the settlement agreement.
Summary: After approval of the settlement agreement, the JCC received a letter from the claimant indicating she now wished to set aside the settlement and reopen her case. The claimant appeared pro se at the hearing. The JCC found that it was apparent that the settlement proceeds have been exhausted and the claimant finds herself in need of additional funds and medical treatment. The JCC found the law only provides for setting aside workers’ compensation settlements in very narrow circumstances and that none of these circumstances were proven by the claimant.
Alberto Quintero v. State of Florida Dept. of Management Services/Division of Risk Management
JCC Spangler; Tampa District; Order Date: October 30, 2015
OJCC Case: 03-043167EDS; D/A: 3/4/2003
Claimant’s Counsel: Manuel Franco
Employer/Carrier’s Counsel: Merette Oweis
Briefly: TRANSPORTATION SERVICES – JCC Spangler denied the claims for transportation services to attend medical appointments, but granted the claims for medical mileage.
Summary: In deposition the claimant testified that he drives his own vehicle to places which are short distances from his residence, but if he drives in traffic for a long period of time he suffers anxiety and nervousness and his back pain increases. Following the deposition, the Employer/Carrier denied provision of commercial transportation services, but offered to reimburse the claimant for medical mileage.
The JCC denied provision of transportation services and noted that the claimant is demanding transportation to authorized physicians who have offices ten miles from the claimant’s residence and that the psychiatrist’s office is approximately 23 miles away. The JCC did not find that the distance should require the claimant to receive commercial transportation services since the claimant routinely drives short distances in his own vehicle. Further, the JCC found that there is no evidence that the claimant’s source of anxiety over driving is the result of a compensable injury.
Mirtha Rodriguez v. Catalina Finer Foods Corp./Bridgefield Employers Insurance Company
JCC Lorenzen; Tampa District; Order Date: October 30, 2015
OJCC Case: 13-012733EHL; D/A: 6/9/2012
Claimant’s Counsel: Manuel Franco
Employer/Carrier’s Counsel: Tim Jesaitis
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Lorenzen both awarded and denied claims for temporary partial disability benefits for different time periods.
Summary: The JCC denied temporary partial disability benefits for certain periods of time based upon the employer’s testimony that the claimant was allowed to work with only one hand, sit and stand as she chose, take breaks as she chose, work slower than normal pace, and to have someone assist her in the tasks the job required. The JCC found that the claimant unreasonably refused to accept the light duty job and voluntarily limited her income during this period of time. The JCC found the job offered to the claimant was the same type of work she had performed previously and that the work was both suitable and within her work restrictions.
The JCC awarded temporary partial disability benefits for a period of time subsequent to the period of time temporary partial disability was denied. The JCC found the claimant continued to have restrictions in the use of her right arm despite experiencing a subsequent accident which also impacted her ability to work. The JCC found only when there is an independent, intervening condition which completely severs the chain of causation between the employee’s wage loss and her compensable injury that the Employer/Carrier is no longer obligated to pay temporary partial disability benefits. Although the claimant had a second accident which caused her pain, the initial workers’ compensation accident and corresponding work restrictions remained. The JCC found that work restrictions from her compensable accident restricted her and prevented her from returning to her usual and customary work.
Luis Martinez v. Spartan Electronics/Sentry Claims Services
JCC Anderson; Daytona Beach District; Order Date: October 30, 2015
OJCC Case: 14-025665WWA; D/A: 2/18/2014
Claimant’s Counsel: David I. Rickey
Employer/Carrier’s Counsel: Sean L. Crosby
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Anderson denied the claim for permanent total disability benefits and found the claimant did not meet any of the tests set forth in Blake v. Merck & Company, 43 So. 3d 882 (Fla. 1st DCA 2010).
Summary: The JCC noted that the claimant must establish that he is not able to engage in at least sedentary employment within a 50-mile radius of his home due to his physical limitations, and that pursuant to the Blake decision, there are three alternative ways of showing this. The claimant can present evidence of 1) permanent incapacity to engage in at least sedentary employment within a 50-miles radius of the employee’s residence due to physical limitation; 2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or 3) permanent work-related physical restrictions that, while not alone totally disabling, preclude the claimant from engaging in at least sedentary employment when combined with vocational factors.
The JCC found that the claimant is not presumptively PTD based upon a listed injury, and that he has not presented evidence of medical incapacity to perform even sedentary work uninterruptedly. The JCC also found the claimant failed to produce credible evidence of an exhaustive but unsuccessful job search. The JCC concluded that the claimant’s testimony concerning the details of the job search was not credible.
Additionally, the JCC found that the 11th hour job offer from a representative of the employer made on the day of the final hearing came too late to factor into his decision on the claim for permanent total disability.
The JCC noted that the claimant is a young man with the potential for a lifetime of work ahead of him and directed the claimant to take advantage of the workers’ compensation reemployment services program. The JCC noted that acceptance into this program may entitle the claimant up to 52 weeks of additional temporary total disability benefits.
Christopher Ferrante v. Brevard County Sheriff’s Office/Preferred Government Claims Solutions
JCC Dietz; Sebastian-Melbourne District; Order Date: October 30, 2015
OJCC Case: 15-003297RLD; D/A: 1/12/2015
Claimant’s Counsel: Michael P. Clelland
Employer/Carrier’s Counsel: Derrick E. Cox
Briefly: REBUTTING THE PRESUMPTION FOR HEART DISEASE – JCC Dietz awarded compensability of the claimant’s aortic valve disease under the presumption of F.S. §112.18 and assigned a permanent impairment rating of 18% of the body as a whole.
Summary: The JCC found that Employer/Carrier did not rebut the presumption because it did not provide persuasive evidence that the claimant had an unrelated medical condition that caused the tricuspid valve calcification.
The focus of the Employer/Carrier’s defense was that the claimant’s condition was due to a bicuspid valve that was congenital in nature. However, the JCC accepted the opinion of Dr. Mathias, the claimant’s IME physician, that the pathology report done at the time of surgery indicated the claimant’s aortic heart valve was actually tricuspid, which was described as normal, and that two or three valves had fused together to give an appearance of bicuspid.
Leslie Bowens v. Orange County Public Works/Preferred Government Claim Solutions/Johns Easterns
JCC Condry; Orlando District; Order Date: October 30, 2015
OJCC Case: 15-001538WJC; D/A: 5/29/2014
Claimant’s Counsel: David I. Rickey
Employer/Carrier’s Counsel: Karen J. Cullen and Kristen L. Mangana
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Condry denied the claim for permanent total disability benefits and found the claimant represented a degree of disablement that is not accurate or reliable. The JCC questioned the claimant’s motivation to return to work.
Summary: The JCC emphasized that it did not consider the claimant’s testimony to be reliable or trustworthy or that he genuinely exhausted employment opportunities. The JCC reviewed surveillance videotapes and found that it was very troubling that the claimant’s level of functioning depicted on the video clearly did not match up with the claimant’s representations. The JCC found that the claimant could do much more than what he claimed and found his limitations appear to be exaggerated.
The JCC accepted the opinion of the vocational evaluator who testified on behalf of the Employer/Carrier that there were various jobs available to the claimant which he could perform within his work restrictions and that the claimant was not precluded from performing light duty work on an uninterrupted basis. One job found was a courier position, which is not a heavy job. There was also an available job as a transfer driver for U-Haul, and other positions available within a 50-mile radius of the claimant’s residence.
Heather Wynne v. TGIF/Gallagher Bassett Services, Inc.
JCC Hogan; Fort Lauderdale District; Order Date: October 30, 2015
OJCC Case: 14-021210GBH; D/A: 8/29/2014
Claimant’s Counsel: Kevin Gallagher
Employer/Carrier’s Counsel: Andrew R. Borah
Briefly: SANCTIONS AGAINST COUNSEL – JCC Hogan awarded sanctions against claimant’s counsel on the grounds that the claimant filed a Verified Petition for Employer/Carrier-paid attorney’s fees that was frivolous and that the factual allegations contained in the Petition for Benefits which formed the basis of the claimant’s Verified Petition were false.
Summary: The JCC found that fee entitlement based on the assertion that medical bills were not paid in full did not have any evidentiary support.
The JCC found that the arguments for fee entitlement were frivolous and were not warranted by existing law, and that in pursuing claims for fees and costs raised in the Verified Petition, claimant’s counsel needlessly increased the costs of litigation.