FL Case Law Summaries – 11/6/15
By:
JCC Orders
Michele Suero v. Jackson Memorial Hospital v. Cannon Cochran Management Services
JCC Humphries; Jacksonville District; Order Date: November 4, 2015
OJCC Case: 12-023037RJH; D/A: 1/11/2012
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Daron Fitch
Briefly: FAILURE TO PROSECUTE – JCC Humphries granted the Employer/Carrier’s Motion to Dismiss claim for attorney’s fees and costs on the grounds that there was a lack of prosecution as set forth in F.S. §440.25(4)(i).
Summary: The JCC entered an order on May 28, 2013, dismissing the pending Petitions for Benefits, but reserving jurisdiction on the issues of attorney’s fees and costs. The order was the last record of activity until the Employer/Carrier filed the subject Motion to Dismiss. The JCC found a lack of prosecution as there was no Petition, Response, Motion, Order, Request for Hearing or Notice of Deposition filed during the previous twelve months prior to the filing of the Employer/Carrier’s Motion to Dismiss and good cause was not established to show that the Motion to Dismiss should not be entered.
Mark A. Collins v. Layne Inliner/Underwriters Safety & Claims
JCC Rosen; St. Petersburg District; Order Date: November 4, 2015
OJCC Case: 14-021758SLR; D/A: 8/21/2014
Claimant’s Counsel: Scott Eldridge
Employer/Carrier’s Counsel: Robert J. Grace
Briefly: MOTION TO ENFORCE – JCC Rosen denied the Employer/Carrier’s Motion to Enforce and found the claimant did not have full knowledge of the settlement regarding his workers’ compensation claim and his employment-related claim.
Summary: The JCC found the claimant gave his authority to settle his workers’ compensation claim and a mediation agreement was entered into between the attorney for the claimant and the attorney for the Employer/Carrier. However, the JCC found the claimant was not given sufficient information regarding the financial consequences of the global settlement and therefore could not authorize a settlement of both the workers’ compensation claim and the employment-related claim without knowing the full financial arrangements.
The JCC found that the mediation settlement agreement was particularly complicated and that a full explanation was not received by the claimant as to what the “global” settlement involved. The JCC accepted the claimant’s testimony that he did not clearly understand that he was settling both his workers’ compensation claim and his employment-related claim. The JCC found there was no meeting of the minds.
Joseph Ortiz v. Villages at Lake Pointe Realty/York Risk Services Group
JCC Sculco; Orlando District; Order Date: November 4, 2015
OJCC Case: 15-022308TWS; D/A: 3/1/2014
Claimant’s Counsel: David E. Mallen
Employer/Carrier’s Counsel: Richard B. Robbins
Briefly: MOTION FOR ADVANCE – JCC Sculco denied the claimant’s motion for a $2,000 advance and found the claimant did not meet the threshold requirements and did not demonstrate a failure to return to the same or equivalent employment with no substantial reduction in wages.
Summary: The JCC noted that the claimant returned to work for the employer for more than 18 months until his termination in September 2015, and during that time he continued to earn the same rate of pay and continued to work the same numbers of hours.
The JCC found: 1) there is no medical evidence to establish an actual or apparent physical impairment; 2) there is no medical evidence to establish work restrictions that would allow for a finding of substantial loss in earning capacity as a result of the industrial accident; and 3) the claimant did not demonstrate a failure to return to the same or equivalent employment with no substantial reduction in wages.
Charles Blane Kohr v. Fresnius Medical Care Holdings, Inc./CNA Insurance
JCC McAliley; Port St. Lucie District; Order Date: November 4, 2015
OJCC Case: 10-021715RDM; D/A: 12/27/2009
Claimant’s Counsel: Michael H. Stauder
Employer/Carrier’s Counsel: Michael J. Fichtel
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC McAliley denied the claim for permanent total disability benefits and found the claimant was not sincere in his efforts to find work. The JCC also found that jobs actually exist within a 50-mile radius of the claimant’s home which the claimant can perform.
Summary: The JCC accepted the Employer/Carrier’s vocational expert’s testimony that the claimant made multiple excuses as to why he could not follow up on job leads. The JCC rejected the contention that the claimant was computer illiterate. The JCC noted the claimant had access to a computer and that the claimant’s past job duties included using a computer and that the claimant never had problems using this type of equipment. Also, the JCC found the claimant was offered jobs performing clerical or secretarial duties with minimal physical requirements, and that the claimant never reported to accept these jobs.
Further, the JCC accepted the testimony of the Employer/Carrier’s vocational expert that the claimant’s transferrable skills would allow him to perform a range of occupations, particularly in the medical field such as intake nurse, phlebotomist, and scheduler, as well as jobs outside the medical field including cashier, ticket-taker, and the like. The JCC found that various jobs falling into these categories actually exist within 50 miles of the claimant’s home.
Mark Zakian v. City of Palm Beach Gardens Police Dept./Florida League of Cities
JCC Basquill; West Palm Beach District; Order Date: November 4, 2015
OJCC Case: 14-016589TMB; D/A: 12/22/2013
Claimant’s Counsel: Tonya A. Oliver and Allyson Skiles
Employer/Carrier’s Counsel: Damian Albert
Briefly: PRESUMPTION UNDER F.S. 112.18/REBUTTAL – JCC Basquill granted the claim for compensability of the claimant’s heart disease, pericarditis, and found that the Employer/Carrier failed to establish that a virus caused the claimant’s pericarditis as alleged, and failed to establish subjective medical evidence that the alleged virus was not contracted at work.
Summary: The JCC found the claimant sustained his burden of proof to invoke the presumption and that the claimant proved the following: 1) he is a member of a protected class; 2) he suffers from pericarditis, a form of heart disease; 3) he underwent a pre-employment physical that revealed no evidence of the condition claimed; and 4) he suffered a disability in his hospitalization for pericarditis and three subsequent hospitalizations.
The JCC found the claimant relied solely on the presumption to support his claim and that the Employer/Carrier can rebut the presumption with competent evidence. However, the JCC found the Employer/Carrier failed to satisfy their burden of proof that the claimant’s heart disease is a result of non work-related causes.
Dr. David Perloff was appointed as the Expert Medical Advisor and testified that there was no subjective medical evidence to determine whether a virus caused the claimant’s acute pericarditis as alleged by the Employer/Carrier. Further, Dr. Perloff opined that there was no objective test to determine whether the claimant contracted the virus at the police department, the pediatrician’s office, or at the hospital. The JCC accepted the presumptive opinions of the Expert Medical Advisor and found there was no clear and convincing evidence to the contrary.
Kathy Novick v. Metlife Group/Travelers Insurance Company
JCC Forte; Fort Lauderdale District; Order Date: November 4, 2015
OJCC Case: 15-006567IF; D/A: 11/7/2014
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Amy Siegel
Briefly: MOTION TO ENFORCE – JCC Forte denied the Employer/Carrier’s Motion to Enforce the settlement agreement and found the settlement agreement was contingent on the parties executing mutually agreeable settlement documents which never occurred in this case.
Summary: The JCC found that a term of the settlement agreement was that the parties would execute mutually agreeable settlement documents. The JCC found that the parties never executed settlement documents due to a disagreement in the language of the proposed settlement documents referencing a Medicare Set-Aside account or Medicare protective language and the lack of language in the documents addressing rescission of the fraud defense by the Employer/Carrier.
The JCC found that, regardless of the fact that the Employer/Carrier was willing to make changes to the settlement documents, subsequent modifications require consent and a meeting of the minds of all the initial parties to the contract whose rights and responsibilities are sought to be affected by the modifications.