FL Case Law Summaries – 1/13/16
BY:
JCC ORDERS
Byron Molina-Rios v. NFI Transportation/Zurich American Insurance Company
JCC Massey; Tampa District; Order Date: January 11, 2016
OJCC Case: 14-012638MAM; D/A: 4/11/2014
Claimant’s Counsel: David Benn
Employer/Carrier’s Counsel: Joanne Prescott
Briefly: ALTERNATIVE IME – JCC Massey denied the claimant’s request for an alternative psychiatric IME and found that claimant did not carry his burden of proving that any of the statutory exceptions to an alternative IME applied.
Summary: The claimant previously obtained an IME with an orthopedic surgeon, Dr. Jon Donshik. The claimant now seeks an alternate IME with a psychiatrist on the grounds that Dr. Donshik is not qualified to render an opinion on the psychiatric aspect of the case, thereby allowing for an alternative IME pursuant to F.S. §440.13(5)(b)1. The Employer/Carrier denied the IME and cited F.S. §440.13(5)(b) which provides that each party is bound by his or her selection of an Independent Medical Examiner and is entitled to an “alternative examiner” only if one of the four enumerated exceptions apply.
The JCC denied the claimant’s request and noted that although the C.V. and deposition of Dr. Donshik revealed that the doctor’s education, clinical experience, and work experience have all been devoted almost exclusively to orthopedic surgery, which is his specialty, there is no evidence to suggest that Dr. Donshik is not qualified to render an opinion on the psychiatric aspect of the case. The JCC found that there was no evidence that Dr. Donshik was asked to render an opinion on psychiatric care, nor was he asked if he felt qualified to render such an opinion. As such, the JCC found that claimant did not carry his burden of proving that any of the statutory exceptions applied.
Hilda Galarza v. Diversified Maintenance Systems/Charter Oak Fire Insurance Company
JCC Beck; Sarasota District; Order Date: January 11, 2016
OJCC Case: 14-002561DBB; D/A: 3/12/2013
Claimant’s Counsel: Eric M. Christiansen
Employer/Carrier’s Counsel: Brad Drummond
Briefly: MOTION TO DISMISS FOR LACK OF PROSECUTION – JCC Beck denied the Employer/Carrier’s Motion to Dismiss claims for attorney’s fees for lack of prosecution, notwithstanding the JCC’s finding that no record activity occurred for more than twelve months.
Summary: The Employer/Carrier sought dismissal of claims for attorney’s fees for lack of prosecution and asserted that no record activity occurred for more than twelve months. Although there was no record activity in the past twelve months, the JCC denied the motion and found that non-record activity did exist in the past twelve months in that a Request to Produce seeking the Employer/Carrier’s payout history had been outstanding, along with a letter requesting more complete answers to interrogatories. The JCC found that obtaining a complete payout would advance the claimant’s attorney’s fee claims as it would provide necessary proof of when benefits were provided. The JCC found the outstanding discovery requests were the type of non-record activity that would constitute good cause to avoid dismissal because they were related to the underlying attorney fee claim.
The JCC cited the former Workers’ Compensation Rules of Procedure and the case of Orange County School Board v. Perkins, 619 So. 2d 1 (Fla 1st DCA 1993), to support a finding that non-record activity can be good cause to avoid a dismissal. The JCC emphasized that non-record activities can still constitute good cause to avoid dismissal provided they are relevant to the remaining claims and the kind of activity that could move the claims forward.
John Crayton v. City of Safety Harbor/Gallagher Bassett Services, Inc.
JCC Rosen; St. Petersburg District; Order Date: January 11, 2016
OJCC Case: 15-007826SLR; D/A: 12/21/1998
Claimant’s Counsel: Teresa P. Williams
Employer/Carrier’s Counsel: Tim Jesaitis
Briefly: PRE-PETITION DISCOVERY – JCC Rosen found that the Employer/Carrier is entitled to limited discovery without a pending Petition for Benefits. The JCC ordered production from various banks of financial records of the claimant in order to determine whether the claimant had relevant earnings.
Summary: The JCC found that the Employer/Carrier is entitled to limited discovery without a Petition for Benefits pending and reserved jurisdiction to conduct any necessary in-camera inspections of evidence produced subject to objection.