FL Case Law Summaries – 1/18/16
By:
JCC ORDERS
Kathleen Cochran v. Hess Retail Operations/York Risk Services Group
JCC Dietz; Sebastian-Melbourne District; Order Date: January 14, 2016
OJCC Case: 15-012944RLD; D/A: 4/16/2015
Claimant’s Counsel: Samuel S. Henderson
Employer/Carrier’s Counsel: Theodore M. Goldstein
Briefly: NO ACCIDENT; IDIOPATHIC CONDITION – JCC Dietz determined the claimant had a compensable accident and accepted the claimant’s testimony as believable that she was injured at work when a box of frozen doughnuts fell on her foot.
Summary: The Wuesthofs Hospital Emergency Room reports indicate the claimant gave a history of slipping and falling on a wet floor two days before the date of accident, a day on which the claimant was not working. Also, the doctor’s history indicated the problem was an injury due to a fall sustained at home. However, the JCC accepted the claimant’s testimony that the hospital was confused with the claimant’s prior 2012 right ankle injury since the staff had access to the claimant’s prior records at the time of her visit and in preparation of the reports from the date of the industrial accident.
The JCC concluded that, if the accident happened two days before, the way the Employer/Carrier suggested, and the claimant’s foot was causing so much pain she could barely walk resulting in her being sent to the hospital by her supervisor at work, that should have been evident on the workplace video all day on the day prior to the accident and again on the date of accident when she approached the store and entered it in the morning. The JCC also concluded that other store personnel would have observed the claimant limping.
Victor Rabateau v. Publix Super Markets /Publix Risk Management
JCC Holley; Jacksonville District; Order Date: January 14, 2016
OJCC Case: 14-010492WRH; D/A: 7/16/2012
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Mark H. Gelman & Stacey Roth
Briefly: NO ACCIDENT; NO NOTICE – JCC Holley denied the claim for compensability of the alleged accident and found the claimant failed to report an accident or injury to his employer in a timely manner pursuant to statute, and that the claimant failed to establish that the accident was the major contributing cause for the need for medical treatment and/or disability.
Summary: The JCC found that the claimant failed to report an accident or injury to his employer through his supervisors or other representatives within thirty days of either of the alleged dates of accident. Further, the JCC found there was no showing of any circumstances that would satisfy any of the exceptions set forth in F.S. §440.185 for timely reporting of accident.
The JCC also found that there was no medical evidence to assert that the accident was the major contributing cause for the need for medical treatment or disability.
The JCC noted that several witnesses testified and that none of the witnesses corroborated the claimant’s version of the alleged accident or the reporting thereof.
The JCC reviewed various medical reports and found that the medical records did not indicate any report of a work-related accident, but did report that the claimant sustained an injury in an altercation which occurred while exiting a bar approximately a month before the date of accident.
Hector Paredes-Gonzalez v. EGG Construction Contractors, Inc./Frank Winston Crum Insurance, Inc. and Tristar Risk Management
JCC Condry; Orlando District; Order Date: January 15, 2016
OJCC Case: 14-023381WJC; D/A: 9/13/2014
Claimant’s Counsel: Dale Albright
Employer/Carrier’s Counsel: J. Craig Delesie
Briefly: EMPLOYER/EMPLOYEE RELATIONSHIP – JCC Condry found that the claimant was an employee of EGG Construction Contractors, Inc., at the time of the accident and awarded benefits.
Summary: The JCC found that the claimant did not initially know the name of his employer, only that he was hired by a person named “Noel” to do framing work. The JCC listened to the testimony of Noel and rejected his testimony as not believable. Instead, the JCC accepted the testimony of the claimant and the claimant’s brother’s as more believable and credible. The JCC found that the claimant was hired to be supervised by Noel and that Noel was an employee of EGG Construction Contractors, Inc., exclusively at the time the claimant was injured. The JCC found that the claimant was paid by Noel either in cash or paychecks from EGG Construction Contractors. Further, the JCC found that Noel testified that at the time of the claimant’s accident, he also worked exclusively with EGG Construction and that he did not receive paychecks from any other businesses.
The JCC rejected the Employer/Carrier’s contention that the claimant was hired by Noel to work in Noel’s independent business.
Bernard Jean Louis v. Palm Beach County School District/F. A. Richard & Associates
JCC D’Ambrosio; West Palm Beach District; Order Date: January 13, 2016
OJCC Case: 15-009712MAD; D/A: 1/21/2015
Claimant’s Counsel: Charles Thomas
Employer/Carrier’s Counsel: Kurt Wyland
Briefly: MEDICAL NECESSITY – JCC D’Ambrosio ordered the Employer/Carrier to authorize thoracic block injections as recommended by Dr. Bach, the treating pain management physician, who opined the injections are medically necessary to provide relief and/or use as a diagnostic tool to determine which nerve was causing pain.
Summary: The JCC accepted Dr. Bach’s opinion that the claimant previously received four months of medication and physical therapy and that the thoracic block injections were the next step. The JCC found that if the claimant’s pain is causing limitations in his activities, daily living, and work restrictions, then the blocks are medically necessary.
When accepting the opinion of Dr. Bach, the JCC noted he is a trained spine surgeon who routinely performs blocks and that the blocks are medically necessary to treat the back pain. The JCC also accepted the claimant’s testimony as credible that he continues to have back pain and wishes to undergo these injections.
Lee Greenfield v. City of Tallahassee/Tallahassee Police Dept.
JCC Lazzara; Tallahassee District; Order Date: January 13, 2016
OJCC Case: 12-025601JJL; D/A: 3/27/2011
Claimant’s Counsel: Paul M. Anderson
Employer/Carrier’s Counsel: Christopher J. DuBois
Briefly: MEDICAL NECESSITY; DAUBERT – JCC Lazzara denied authorization of the HIVAMAT Home Unit and found that Dr. Hofmann’s recommendation for a HIVAMAT Home Unit was pure opinion on the part of the doctor, and that the doctor simply prescribed it on the insistence of, and to accommodate, the claimant.
Summary: The JCC noted that counsel for the Employer/Carrier objected to the medical opinions of Dr. Hofmann under F.S. §90.702, commonly referred to as the Daubert standard, for admissibility of expert scientific testimony.
The JCC rejected Dr. Hofmann’s opinion on medical necessity of the HIVAMAT Home Unit as lacking proper medical and factual foundation. Dr. Hofmann admitted that he had no professional experience with HIVAMAT technique, and conceded that he has never prescribed HIVAMAT treatment for any of his patients in spite of his specialty in pain rehabilitation. The doctor acknowledged that he first heard of HIVAMAT intervention from the claimant and became acquainted with it based on the information provided to him by claimant’s counsel. The JCC found that Dr. Hofmann’s opinion is not based on sufficient facts and data, nor were his opinions based on the results of reliable principles and methods, much less medical studies for articles regarding the efficacy of the home unit.
The JCC pointed out that Dr. Hofmann’s testimony shows that he recommended and prescribed the thirty-day trial use of the HIVAMAT Home Unit because it was specifically requested by the claimant, and was not the result of his own independent medical judgment.