FL Case Law Summaries – 11/4/15
BY:
JCC Orders
Annabella Pinera v. Target/Sedgwick CMS
JCC Hill; Gainesville District; Order Date: November 2, 2015
OJCC Case: 13-006234MRH & 13-011303MRH; D/A: 8/24/2012 & 3/4/2013
Claimant’s Counsel: Gretel San Miguel
Employer/Carrier’s Counsel: David Gold
Briefly: ENTITLEMENT TO ATTORNEY’S FEES – JCC Hill denied the Verified Petition for Attorney’s Fees and found that the Employer/Carrier agreed to provide benefits within 30 days of its receipt the Petition for Benefits.
Summary: The JCC explained that the claimant is entitled to an Employer/Carrier-paid attorney’s fee only if she establishes the following: a) that the claimant successfully asserts a Petition for Medical Benefits only; b) the Employer/Carrier files a response denying benefits sought in a Petition for Benefits and claimant successfully prosecutes the Petition, or; c) the Employer/Carrier denies an accident occurred for which compensation benefits are payable and claimant prevails on the issue of compensability, F.S. §440.34(3)(a)-(c)(2012). However, attorney’s fees shall not attach until 30 days after the Employer/Carrier receives the Petition for Benefits F.S. §440.34(3).
In this case, the JCC found that the Employer/Carrier agreed to provide the benefits sought in the May 17, 2013, Petition at the time of the June 7, 2013, mediation. The claimant could not establish entitlement to attorney’s fees as the Employer/Carrier agreed to provide the benefits within 30 days of its receipt of the Petition.
Quintin Hicks v. Workforce Business Services/Zurich American Insurance Company
JCC Hogan; Fort Lauderdale District; Order Date: November 2, 2015
OJCC Case: 15-020297GBH; D/A: 8/3/2015
Claimant’s Counsel: Gloria M. Garcia
Employer/Carrier’s Counsel: Mark W. Ingram
Briefly: MOTION FOR ADVANCE – Judge Hogan denied the Motion for Advance and found that she was unable to determine what, if any, amount of an advance payment of compensation was appropriate. The JCC found the claimant did not clearly articulate how much he owed to family members and what amount he would use to help his children.
Summary: The JCC noted that the claimant testified he would use a $2,000 advance to catch up on his bills and fix his car. However, he also testified that his only bills were a $100 cell phone bill and a $21 life insurance bill and that he was not behind on these payments. The JCC could not determine what, if any, amount of advance payment was appropriate.
Victoria Gaskin v. American Airlines Workers’ Compensation Dept./Sedgwick CMS
JCC Almeyda; Miami District; Order Date: November 2, 2015
OJCC Case: 14-027567SMS; D/A: 10/1/2014
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Darrin R. Dormini
Briefly: ATTENDANT CARE – JCC Almeyda ordered the Employer/Carrier to pay attendant care benefits to the claimant for a period of time following surgery when services were performed by claimant’s daughter who helped the claimant with various activities and was present at all times with the claimant at doctor’s appointments.
Summary: The JCC found that home assistance was required for the claimant following the surgery and, even though the doctor opined this type of care is unusual, he never retracted his opinions on the need, quality, and duration of attendant care.
The JCC also found the claimant’s daughter helped the claimant with assistance in and out of the car, sitting on the couch, bathing, dressing, cleaning the house, cooking, and giving her medical attention. These activities lasted about a month following the surgery.
The JCC also denied the defense that the prescription for attendant care was retroactive and therefore prohibited by F.S. §440.13(2). The JCC cited the case of Winham Builders, Inc. v. Overloop, 951 So. 2d 40 (Fla. 1st DCA 2007) and stated that in a similar factual scenario, the 1st DCA denied the defense where the Employer/Carrier failed to investigate the need for attendant care.
Victoria Sledge v. Fresenius Medical Care of North America/CNA Insurance
JCC Hill; Gainesville District; Order Date: November 2, 2015
OJCC Case: 05-000481MRH; D/A: 9/25/2004
Claimant’s Counsel: Lance Avera
Employer/Carrier’s Counsel: James Kidd
Briefly: ATTORNEY’S FEE AMOUNT – JCC Hill awarded attorney’s fees based upon the guideline amount and declined the Employer/Carrier’s request for a downward departure from the presumptively correct statutory guideline fee.
Summary: The JCC noted that the Employer/Carrier’s sole argument for a downward departure from a presumptively correct statutory fee is that the guideline fee would result in an hourly rate greater than the rate customary in the area. The JCC cited case law authority and found that the Employer/Carrier’s argument is an insufficient basis upon which to depart from the guideline fee.
Lori Watson as guardian for Brenda Whiteside v. Hillsborough County School Board/Broadspire
JCC Lorenzen; Tampa District; Order Date: November 2, 2015
OJCC Case: 08-007027EHL; D/A: 8/23/2007
Claimant’s Counsel: Bradley Smith
Employer/Carrier’s Counsel: Katherine Stone
Briefly: PERMANENT TOTAL DISABILITY – JCC Lorenzen found the claimant was permanently and totally disabled due to a combination of physical and vocational factors.
Summary: When finding the claimant permanently and totally disabled, the JCC noted some significant differences between the facts at the recent final hearing as compared to a final hearing held in 2012. Previously, the claimant had difficulty transferring from a seated position to a standing position, but now she deteriorated to the point where it was unsafe for her to try to stand up by herself. The JCC found the claimant successfully met her burden of proof that she could not engage in at least sedentary employment within a 50-mile radius of her home due to her physical limitations when those limitations were combined with vocational factors.
Robert Whitwood v. Dragados USA, Inc./Sedgwick CMS
JCC Hill; Gainesville District; Order Date: November 2, 2015
OJCC Case: 15-007695MRH; D/A: 6/30/2013
Claimant’s Counsel: Matthew Carrillo
Employer/Carrier’s Counsel: Tiffany Hawks
Briefly: ATTENDANT CARE – JCC Hill awarded payment of past due attendant care and found that the Employer/Carrier’s delay in seeking a home health assessment was an attempt to remain willfully ignorant of the exact type of attendant care claimant required.
Summary: The JCC found the Employer/Carrier was aware of the nature of the claimant’s injury and the physician’s recommendation that the claimant needed 24/7 supervision. The physician indicated a home health assessment was necessary to determine the exact type and duration of attendant care, but despite this recommendation, the Employer/Carrier failed to obtain a home health care assessment until more than a year later.
The Employer/Carrier argued that it exercised due diligence by contacting the physician to obtain clarification of the recommendation for attendant care, but the JCC rejected this argument as without merit.
Grailing Lockett v. C.F. Motor-Consolidated Freightways/Sedgwick CMS & USIS
JCC Lazzara; Jacksonville District; Order Date: November 2, 2015
OJCC Case: 96-021900JJL; D/A: 10/13/1996
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Jeffry J. Branham
Briefly: MOTION TO SET ASIDE SETTLEMENT; RES JUDICATA – JCC Lazzara denied the claim for medical care and Motion to Set Aside Workers’ Compensation Settlement under the doctrine of res judicata.
Summary: The JCC found that the claimant’s attempt to reopen his previously settled case after almost twelve years after the settlement was approved is not permissible under the doctrine of res judicata. The JCC found that it was clear from the claimant’s own testimony that he knowingly entered into the settlement agreement with the assistance of legal counsel and that there was no new evidence to support any modification of the prior settlement order.
Additionally, the JCC found that the statute of limitations bars the claim and that no claim or Petition has been filed within two years of the last provision of benefits, or even from the year the claimant claimed his family physician told him he was in fact injured and needed more care.