FL Case Law Summaries – 1/13/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
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Robert Keefer v. City of Deerfield Beach and Broward County Sheriff
JCC Hogan: Ft. Lauderdale District Opinion Date: December 15, 2016
OJCC Case: 14-004809GBH (consolidated) Dates of Accident: 2/14/2009; 9/29/2011; 12/08/2013
Claimant’s Counsel: Jeffrey M. Friedman Employer/Carrier’s Counsel: David Goehl
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Major Contributing Cause; Expert Opinion; Pre-Existing Conditions – The Claimant alleged that his right hip osteoarthritis was caused by a work related fall and the repetitive trauma involved with his job duties as a firefighter. The JCC ruled the Claimant’s condition and need for treatment were pre-existing and personal in nature. The First DCA affirmed this decision per curium.
Summary: Both of the Employer/Carrier’s IMEs opined that the MCC of the need for treatment was the Claimant’s pre-existing condition, not any of the alleged DOAs. The Claimant’s IME failed to state definitively what the MCC of the need for treatment was and merely testified that the Claimant’s work as a firefighter “could” cause osteoarthritis.
The JCC determined that the evidence presented by the Claimant did not meet the “clear and convincing” standard imposed by Fla. Stat. § 440.09(1) for repetitive trauma. The Claimant’s own IME testified that the Claimant suffered from numerous right hip problems at least eight years prior to his first alleged DOA. The JCC also found that the Claimant’s use of 500 hours of personal sick time for a non-work related hip surgery in 1999 further indicated that the MCC of the need for treatment was pre-existing in nature.
The JCC also rejected the Claimant’s argument that the work-place accidents aggravated his pre-existing condition. The Employer/Carrier’s IME testified that based on injuries noted in medical records prior to any of the alleged accidents made the need for surgical intervention in the future virtually inevitable.
Silvia C. Gonzalez v. Visa and Travelers
JCC McAliley: Port St. Lucie District Opinion Date: December 12, 2016
OJCC Case: 12-019181RDM Date of Accident: 3/16/2012
Claimant’s Counsel: Kimberly Hill Employer/Carrier’s Counsel: Steven H. Preston
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Indemnity – The JCC denied the Claimant’s request for TTD and/or TPD based on the expiration of the 104 weeks of indemnity benefits. The First DCA remanded the case for the JCC to determine if the Claimant remained partially disabled – and therefore entitled to additional TPD benefits – based on the Florida Supreme Court’s decision in Westphal.
Summary: The First DCA based their decision on Jones v. Food Lion, Inc., which extended the 260 week limitation on TTD benefits to TPD benefits as well. 41 Fla. L. Weekly D2490 (Fla. 1st DCA 2016). The Claimant was not eligible for additional TTD benefits because it was clear she was not on no-work status after the 104 weeks ended. It was unclear if the Claimant remained partially disabled beyond the 104 weeks and the First DCA therefore remanded the case for the JCC to make that determination. The Claimant would be owed TPD benefits for any time between the 104th week and when she was placed at MMI.
Erliying Soto v. C-Worthy Corp./Summit Holdings-Claims Center
JCC Lewis: Fort Lauderdale District Opinion Date: December 1, 2016
OJCC Case: 15-021444DAL Date of Accident: 9/01/2015
Claimant’s Counsel: Kimberly Hill Employer/Carrier’s Counsel: George Kagan
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Settlement Agreements – The First DCA ruled that an agreement to execute a general release and resignation is separate and distinct from any indemnification clauses.
Summary: The parties agreed to settle the claim at mediation and entered into a written settlement agreement in which the Claimant agreed to execute a general release and resignation in favor of the Employer/Carrier. The release and resignation documents sent to Claimant’s Counsel included several clauses indemnifying and holding harmless the Employer/Carrier. The Claimant refused to agree to these provisions as they were not part of the written settlement agreement. The JCC ruled in favor of the Employer/Carrier but the First DCA reversed that decision. Because the indemnification language provisions were not described in the settlement agreement, the Claimant could not be forced to agree to such terms.
Carlos Medina v. American Airlines and Sedgwick CMS
JCC Almeyda: Miami District Opinion Date: December 21, 2016
OJCC Case: 10-000216ERA (consolidated) Dates of Accident: 12/23/08; 11/30/07; 7/12/06; 10/15/03
Claimant’s Counsel: Toni Villaverde Employer/Carrier’s Counsel: Frank Garcia
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Discovery – The First DCA ruled that a video recording of an independent medical examination constitutes work product but loses its protection if used during depositions or other trial proceedings.
Summary: Claimant’s Counsel videotaped the Employer/Carrier’s IME visit to “ensure the examination was administered fairly and properly.” The Employer/Carrier argued they were entitled to a copy of the video as they believed the video was used to cross-examine the doctor at deposition. The First DCA determined that the claimant did not waive the work product privilege as the video was not listed as evidence. Further, the DCA held that none of the questions asked by Claimant’s Counsel indisputably relied upon the video or required use of the video a trial. If the Claimant seeks to use the video at trial for impeachment or any other purpose, the video would lose its protection.