FL Case Law Summaries – 1/16/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
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1st DCA ORDERS
DHL Express, Inc. and Sedgwick CMS v. Raquel Machin
JCC Massey: Tampa District Opinion Date: January 10, 2017
OJCC Case: 15-013154MAM Date of Accident: 11/1/13
Claimant’s Counsel: Michael Winer Employer/Carrier’s Counsel: George Kagan
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Filing Deadlines – The First DCA affirmed the JCC’s opinion per curium but wrote to admonish the Employer/Carrier’s attorney for filing the initial brief late. Employer/Carrier’s Counsel was granted a ten day extension to file his initial brief but nevertheless filed it three days late. “This opinion shall serve as a reminder to all members of the Florida Bar that professional conduct and strict compliance with the orders of this Court are not only expected but are mandatory.”
JCC ORDERS
Joseph St. Fort v. Sugar Farms Co-Op/Florida Crystals Corp.
JCC Johnson: West Palm Beach District Order Date: January 3, 2017
OJCC Case: 16-013376GJJ Date of Accident: 7/14/15
Claimant’s Counsel: Jane-Robin Wender Employer/Carrier’s Counsel: Kevin Clarke
JCC Order: Click Here
Briefly: Compensability (Going and Coming Rule) – The Claimant was given an Employer owned truck so he could travel to various farms and repair tractors and trucks. The Claimant clocked out and was traveling home when he was involved in a motor vehicle accident. The JCC denied compensability of the case based on the Going and Coming Rule.
Summary: The Claimant had clocked out from work and was on his normal route home when he was struck from behind at a stoplight. He testified during his deposition that he was never given authorization by the Employer to use the truck for personal reasons and that he had never done so. The Claimant was allowed to make minor personal stops while using the truck, such as stopping at the grocery store on the way home from work. The Employer testified that the truck was used exclusively by the Claimant except on one or two occasions.
Under the Going and Coming Rule, an accident will be compensable if (1) the transportation provided by the Employer was not provided for the exclusive use by the employee or (2) if the employee was involved in a special errand. The JCC found it was undisputed that the Claimant was not completing a “special errand” at the time of the accident. The fact that another employee had used the truck on one or two occasions was insufficient to determine that the Claimant did not have exclusive use of the employer owned truck. Compensability was denied as the Claimant was in the exact same position as every other worker driving home from work.
Renie Weaver v. FFL Metallizing Services and CCMSI
JCC Lorenzen: Tampa District Order Date: January 12, 2017
OJCC Case: Date of Accident: 6/9/15
Claimant’s Counsel: Jason Kobal Employer/Carrier’s Counsel: Ya’Sheaka Campbell Williams & Faith Searles
JCC Order: Click Here
Briefly: Compensability (Repetitive Trauma) – The Claimant worked as an industrial machinist for 38 years. He petitioned for compensability of his back pain as a result of the repetitive trauma sustained from the heavy lifting and bending associated with his work. The JCC denied compensability of the injury because the testimony offered in support of repetitive trauma was insufficient as a matter of law as it did not specifically address the Festa factors.
Summary: After lifting four heavy steel plates at work the Claimant was unable to straighten his back. The Employer/Carrier sent the Claimant to a walk in clinic and that doctor determined that the Claimant’s back pain was pre-existing in nature. The Employer/Carrier then denied compensability of the accident. The Employer/Carrier maintained that his low back complaints were due to his pre-existing degenerative arthritis and not to his employment
The Claimant eventually conceded on cross examination that he had been receiving chiropractic treatment for his lower back since 2008 and had been taking Aleve for years due to his arthritis. The testimony of the Claimant’s IME was insufficient to meet the repetitive trauma standard imposed by Fla. Stat. § 440.09(1). The IME failed to address the Festa factors and failed to establish that the Claimant was placed at a greater risk of aggravating his pre-existing arthritis than a member of the general public.
Adolfo Gongora v. Bealls and Sedgwick CMS
JCC Beck: Sarasota District Order Date: January 11, 2017
OJCC Case: 14-000690DBB Date of Accident: 12/2/13
Claimant’s Counsel: Eric Christiansen Employer/Carrier’s Counsel: Thomas P. Vecchio
JCC Order: Click Here
Briefly: Indemnity (TPD) – The Claimant’s authorized Orthopedic surgeon, Dr. Herman, placed the Claimant at MMI with a 0% PIR but also assigned a 20 lb. lifting restriction. The Employer/Carrier nevertheless terminated the Claimant’s TPD benefits. Subsequent to being placed at MMI, the Claimant’s authorized hernia surgeon, Dr. Yunis, recommended surgery. JCC Beck determined that the Claimant was not at overall MMI due to the subsequently recommended surgery. However, the Claimant was still not owed TPD benefits as the Claimant failed to establish a causal connection between the injury and any alleged wage loss.
Summary: Dr. Herman was the only authorized physician to place the Claimant on restrictions during the time period at issue. The JCC ruled that these restrictions were inconsistent with the doctor’s findings and rejected the restrictions based on Woodbury v. Southland Corp., 652 So. 2d 467 (Fla. 1st DCA 1995). The opinions of the Claimant’s other treating physicians were more persuasive regarding the Claimant’s work restrictions and all of them opined that the Claimant was able to work full duty during the time period at issue
The Claimant’s testified that he was unable to perform the transitional work given to him by the Employer. Despite recalling Dr. Herman placing him on restrictions, he was unable to recall any of the other three physicians releasing him to full duty. The JCC ultimately found the Claimant to be an unreliable witness and rejected his subjective testimony that he was unable to perform the work assigned to him. So while the Claimant was not at overall MMI due to the pending surgery, there was no causal connection between the Claimant’s injury and his loss of wages. Any loss of wages was the result of the Claimant’s voluntary limitation of income.
Donielle Jones v. WPTV Newschannel 5 and Travelers
JCC Hedler: West Palm Beach District Order Date: January 4, 2017
OJCC Case: 16-007364TAH Date of Accident: 11/24/14
Claimant’s Counsel: Christine Tomasello Employer/Carrier’s Counsel: Amanda Mitteer Bartley
JCC Order: Click Here
Briefly: Major Contributing Cause; Expert Opinion – The Employer/Carrier denied the physical therapy recommended by the Claimant’s authorized treating physician after the physician opined that the Claimant’s condition was 60% pre-existing and only 40% related to the work accident. The JCC granted the claim for physical therapy after determining the opinions of the authorized treating physician and Employer/Carrier’s IME were inconsistent with the objective medical findings.
Summary: The Claimant was injured when a tent blew over and struck her in the upper arm region. According to the Claimant’s primary care physician, she had been injured during a domestic abuse event around the time of the industrial accident which also resulted in injuries to her upper arms and shoulders. She denied the existence of the domestic abuse to her authorized treating physician and both IMEs. She also gave no explanation as to how why her PCP would note such an event in the medical records if such an event did not occur. The report regarding the domestic abuse was discussed with the authorized treating physician, via conference with the Employer/Carrier, and only after that, did the physician opine that the MCC was 60% pre-existing in nature.
The JCC rejected that opinion as well as the MCC determination of the Employer/Carrier’s IME, Dr. Challal, as they both focused too much on the Claimant’s failure to mention the domestic violence injuries. Regardless of the domestic violence incident, both physicians noted objective evidence supporting injuries sustained by the Claimant during the industrial accident. The Claimant’s IME, Dr. Rondon, gave a more through and well reasoned analysis. He properly weighed the domestic abuse injuries with those related to the industrial accident and determined that the Claimant’s need for treatment was 75% related to the workplace accident.
Victor Boccheciamp Olivo v. Seminole County Public Schools and Florida School Boards Insurance Trust
JCC Pitts: Orlando District Order Date: January 9, 2017
OJCC Case: 15-014259 Date of Accident: 4/14/15
Claimant’s Counsel: David Rickey Employer/Carrier’s Counsel: Michael Peterson
JCC Order: Click Here
Briefly: Major Contributing Cause; Expert Opinion – The Claimant was involved in a compensable accident after slipping on a wet floor while working as a fire alarm technician. The Claimant alleged developing migraines and vertigo as a result of the accident. Based upon the dispute on the issue of causal relationship, Dr. C. Danner, neurotologist and EMT, was appointed as the EMA. The JCC accepted the opinion of the EMA that the migraines and vertigo were not compensable.
Summary: The JCC noted that the EMA’s opinion was presumptively correct and that the only evidence contradicting the EMA’s opinion was one of the authorized treating physicians. The Claimant’s argument that the authorized physician’s opinion was enough to overrule the EMA was rejected. A contradiction between the EMA and one of the disagreeing physicians is not, by itself, a reasonable basis for the JCC to reject the EMA’s opinions because the EMA is appointed with the expectation that the EMA’s testimony will contradict the record testimony of one of the healthcare providers. The EMA determined that the Claimant was genetically predisposed to migraines and that the symptoms were not related to the workplace accident.