FL Case Law Summaries – 11/5/15
By:
JCC Orders
Ricardo Guerra v. Estate Building Services, LLC/SUA Insurance
JCC Kerr; Miami District; Order Date: November 3, 2015
OJCC Case: 12-006409MGK; D/A: 11/13/2011
Claimant’s Counsel: William Kinnear
Employer/Carrier’s Counsel: Andrew Borah
Briefly: TWO DISMISSAL RULE – JCC Kerr denied the Employer/Carrier’s Motion for Summary Final Order and found the “two dismissal rule” does not apply, because it was not clear that the two previously dismissed petitions requested the same benefits presently at issue.
Summary: The JCC found that the initial two Petitions for Benefits sought medical benefits in one Petition, and indemnity benefits in the other. Accordingly, the JCC found that the indemnity and medical claims were not dismissed twice previously. The JCC found that the two dismissal rule only applies when it is clear the two previously dismissed Petitions requested “the same benefits requested now.”
Brandilyn Gunter v. Sun Holdings, Inc. d/b/a Burger King/Helmsman Management Services/Liberty Mutual Insurance
JCC Sculco; Orlando District; Order Date: November 3, 2015
OJCC Case: 15-001549TWS; D/A: 10/05/2014
Claimant’s Counsel: Sean P. McCormack
Employer/Carrier’s Counsel: Adam M. Gill & Humberto S. Valdes
Briefly: PENALTIES – JCC Sculco denied the claim for penalties based on the Employer/Carrier’s mailing payment of a $2,000 advance on August 4, 2015, that the Employer/Carrier was ordered to pay on July 27, 2015.
Summary: The JCC noted that F.S. §440.20(7) provides a 20% penalty for payment of “compensation” payable under the terms of an award made more than seven days after it becomes due. The JCC found F.S. §440.20(7) is inapplicable here because an advance payment is not “compensation due” a claimant.
The JCC noted that the Employer/Carrier is not free to ignore a JCC’s order awarding an advance and that Rule 60Q-6.125 provides the JCC with a wide variety of possible sanctions that can be imposed on a party or an attorney for failure to comply with any order of a Judge.
Susan Campbell v. Target/Sedgwick CMS
JCC Lewis; Fort Lauderdale District; Order Date: November 3, 2015
OJCC Case: 08-018720DAL; D/A: 6/4/2007
Claimant’s Counsel: Paul Rosenberg
Employer/Carrier’s Counsel: Annie Shook
Briefly: MOTION TO COMPEL VERIFIED PETITION FOR ATTORNEY’S FEES – JCC Lewis granted the Employer/Carrier’s Motion to Compel Verified Petition for Attorney’s Fee and denied arguments that the fee statute is currently under constitutional review and, therefore, determination of the attorney’s fee lien is premature.
Summary: The JCC noted that the claimant’s date of accident in this case is June 4, 2007, and consequently, the constitutional challenge to the attorney’s fee statute which is currently under review by the Florida Supreme Court would not be implicated.
Further, the JCC found that Rule 60Q-6.124(5)(a) provides that upon motion by any party, the Judge shall require the filing of a Verified Motion for Attorney’s Fees and Costs as to any Petition for Benefits which has no pending claims other than entitlement to attorney’s fees and costs.
Marie Lyne Bernadin Dominique v. Loews Hotels at Universal Orlando/CNA Insurance Company
JCC Sculco; Orlando District; Order Date: November 3, 2015
OJCC Case: 14-011314TWS; D/A: 5/28/2013
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: James Kidd
Briefly: SANCTIONS – JCC Sculco granted the Employer/Carrier’s request for sanctions and ordered $100 to be paid by the claimant to the Employer/Carrier for failure to notify the Employer/Carrier that she would not attend a duly scheduled deposition.
Summary: The Employer/Carrier argued that Rule 60Q-6.125(1) provides authority for the JCC to award attorney’s fees and costs to the Employer/Carrier as a sanction for the claimant’s failure to attend multiple depositions and a private mediation. The claimant argued that she notified her attorney at the time that she could not attend depositions due to illness, and that she did not receive notice of the private mediation.
The JCC accepted the claimant’s testimony regarding notification to her attorney at the time that she could not attend certain depositions, but also found that the claimant offered no excuse for similar behavior on another scheduled deposition and awarded $100 as a sanction. The JCC also accepted the claimant’s testimony regarding her lack of notice of the mediation.
Virgie Washburn v. Florida Natural Growers/Corvel Corp.
JCC Sojourner; Lakeland District; Order Date: November 3, 2015
OJCC Case: 03-022957MES, 03-030864MES & 05-034482MES; D/A: 3/30/2002, 9/6/2002 & 7/20/2005
Claimant’s Counsel: Laurie Miles
Employer/Carrier’s Counsel: Kristen Magana
Briefly: AMOUNT OF ATTORNEY’S FEES – JCC Sojourner found a guideline fee to be appropriate based on a 1.75% discount rate, and awarded $43,056.20 as a reasonable attorney’s fee supported by the only evidence offered.
Summary: The parties disputed the value of the benefits obtained and the appropriate discount factor to be used in determining the present value of future benefits.
The claimant offered the testimony of expert witness, Joyce Eastridge, who utilized a discount factor of 1.75%. The Employer/Carrier did not offer any expert testimony of what an appropriate value would be, but argued that the 1.75% discount rate is not appropriate as there is no evidence that the discount rates will remain low.
The JCC accepted the claimant’s position as supported by the only evidence offered.
William A. Hernandez v. F.A.U. Police Department/Division of Risk Management
JCC D’Ambrosio; West Palm Beach District; Order Date: November 3, 2015
OJCC Case: 14-015949MAD; D/A: 6/20/2014
Claimant’s Counsel: Jeffrey Jacobs
Employer/Carrier’s Counsel: Jerry Hayden
Briefly: PRESUMPTION UNDER F.S. §112.18, REBUTTAL– JCC D’Ambrosio found the Employer/Carrier did not meet the burden of proof to overcome the presumption under F.S. 112.18 that the claimant’s heart disease is compensable. The JCC accepted the claimant’s cardiologist’s opinion that there is no diagnostic test or scientific method to objectively or reliably determine if the claimant’s diabetes caused his coronary artery disease.
Summary: The parties stipulated that the presumption applies in this case. The JCC found the Employer/Carrier did not meet their burden of proof with competent, substantial evidence to establish that the claimant’s coronary artery disease was caused by non work-related factors of diabetes, high blood pressure, and high cholesterol, or a combination of factors.
The JCC accepted the opinion of the cardiologist who testified on behalf of the Claimant and opined that there is no diagnostic tests or scientific method to subjectively or reliably determine if the claimant’s diabetes contributed at least 50% to the development of coronary artery disease or if a specific risk factor or combination of risk factors caused or contributed at least 51% of the development of the coronary artery disease.
Denise McDurfee v. JoAnn Fabrics/Broadspire
JCC Beck; Sarasota District; Order Date: November 3, 2015
OJCC Case: 15-008722DBB; D/A: 10/25/2014
Claimant’s Counsel: Ivan D. Voronec
Employer/Carrier’s Counsel: Tiffany Stanton Hawks
Briefly: COMPENSABILITY OF PERMANENT AGGRAVATION – JCC Beck found that the industrial accident is the major contributing cause of claimant’s current back and left knee pain conditions and need for treatment, but denied a determination that a permanent aggravation of claimant’s left knee condition was established.
Summary: The JCC explained that while she found the industrial accident to be the major contributing cause for the claimant’s painful condition and need for treatment, she denied the claimant’s request to establish compensability of a permanent aggravation of the left knee condition. The JCC found that the issue of maximum medical improvement and permanent impairment rating was not raised in a Petition for Benefits and not placed at issue by the parties. As such, any finding that the claimant’s aggravation is permanent is error.
Robyn L. Meares v. Dept. of Corrections/Division of Risk Management
JCC Holley; Jacksonville District; Order Date: November 3, 2015
OJCC Case: 15-001439WRH; D/A: 9/4/2014
Claimant’s Counsel: Jonathan Israel
Employer/Carrier’s Counsel: William J. Spradley
Briefly: PRESUMPTION UNDER F.S. 112.18; CARDIOMYOPATHY – JCC Holley granted the claim for compensability of cardiomyopathy and found the Employer/Carrier did not establish non work-related factors to be a major contributing cause.
Summary: The parties entered into a stipulation that the claimant met the legal presumption under F.S.§112.18. Thus, it was the Employer/Carrier’s burden to show that the presumption was rebutted by evidence that the major contributing cause of the claimant’s hypertension was something other than his employment activities.
The JCC rejected the Employer/Carrier’s assertion that the combination of chemotherapy agents and radiation, resulting from a non work-related surgery, and pre-existing hypertension were the major contributing cause of the claimant’s cardiomyopathy. The JCC found that the Employer/Carrier’s cardiologist did not sufficiently show a direct nexus between the claimant’s use of the chemotherapy agents, radiation, and hypertension in her cardiomyopathy other than to point to epidemiological studies where 4% of patients fell into such a category.