FL Case Law Summaries – 11/9/15
By:
1st DCA Order
Ronald Frankel v. Loxahatchee Club, Inc./Amerisure Insurance Company
Appeal of the Order from JCC D’Ambrosio
DCA Order Date: November 5, 2015
Case: 1D115-1289; D/A: 7/18/2013
Appellant’s Counsel: Kimberly A. Hill
Appellee’s Counsel: Jeffrey L. Marks & Christine M. Tomasello
Briefly: APPORTIONMENT – The DCA affirmed in part and reversed in part JCC D’Ambrosio’s findings that the Employer/Carrier is entitled to apportion a percentage of the costs of future medical treatment based upon claimant’s pre-existing conditions. The DCA rejected the claimant’s constitutional challenge to F.S. §440.15(5)(b) regarding the apportionment defense.
Summary: The DCA held it is the Employer/Carrier’s burden to prove the defense of apportionment and to establish specific testimony or other medical proof that the claimant’s pre-existing conditions were aggravated by the compensable injury. In doing so, the DCA cited F.S. §440.15(5)(b)(2013) as stating:
If a compensable injury… or need for medical care, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition… only the… medical treatment associated with such compensable injury shall be payable under this chapter, excluding the… medical conditions existing… at the time of the accident….Medical benefits shall be paid apportioning out the percentage of the need for such care attributable to the preexisting condition.
The DCA held that competent, substantial evidence supported the JCC’s finding that the Employer/Carrier is entitled to apportion 25% of the cost of surgery as the claimant’s pre-existing right shoulder condition was exacerbated/aggravated by the compensable injury. The DCA noted medical evidence supported this finding.
However, the DCA also held that competent, substantial evidence did not support the JCC’s finding that the Employer/Carrier was entitled to apportion 20% of the costs of surgery based on the claimant’s pre-existing, degenerative changes in the shoulder as there was no evidence those degenerative changes were exacerbated/aggravated by the compensable injury. The DCA stated that it appeared that the Employer/Carrier never asked the doctor whether the claimant’s degenerative changes were aggravated by the compensable injury.
The DCA rejected the Constitutional challenge to the apportionment statute and found that the claimant failed to demonstrate beyond a reasonable doubt that his right to access to courts was violated.
JCC Orders
Denise Murray v. Wyndham Vacation Ownership Group/Liberty Mutual Insurance
JCC Pitts; Orlando District; Order Date: November 5, 2015
OJCC Case: 14-023031NPP; D/A: 8/13/2014
Claimant’s Counsel: William G. McLean, Jr.
Employer/Carrier’s Counsel: Robert Swanson
Briefly: TEMPORARY PARTIAL DISABILITY; MAJOR CONTRIBUTING CAUSE – JCC Pitts granted the claim for TPD benefits and found the claimant’s lost wages were causally related to the work injury which included a neck and thoracic spine injury that occurred when the claimant was involved in a go-cart accident while attending a mandatory team-building event. The JCC denied compensability of the alleged knee and low back injury based upon the opinion of the Expert Medical Advisor, who opined the work accident is not the cause of either the right knee or low back conditions.
Summary: The JCC awarded temporary partial disability benefits and found the claimant established a loss of earning capacity and demonstrated a causal connection between the loss of employment and pre-accident wages and the industrial accident and resulting injuries. The JCC found the claimant was on light-duty work restrictions for her cervical spine injury based upon the treating physician’s testimony.
The JCC accepted the claimant’s testimony that she began missing work to attend medical appointments because of the pain and swelling caused by work injuries. The JCC accepted the claimant’s testimony that she did not have the stamina she had before the accident to be as effective as a sales representative, and therefore, she began receiving fewer leads from her supervisors because of both her absences and her lack of effectiveness.
The JCC accepted the EMA opinion of Dr. Hurbanis and found the claimant did not sustain a compensable injury to her knee or lumbar spine.
Radosman Barrera v. MCCI/Comp Options/AmTrust North America of Florida
JCC Hogan; Ft. Lauderdale District; Order Date: November 5, 2015
OJCC Case: 13-025147GBH; D/A: 10/18/2013 & 10/24/2013
Claimant’s Counsel: Monica De Ferria Cooper
Employer/Carrier’s Counsel: Laurence F. Leavy
Briefly: MOTION TO DISMISS; PTD – JCC Hogan granted the Employer/Carrier’s Motion to Dismiss the Petition for permanent total disability benefits from the date of statutory MMI on the grounds that the Petition was not ripe, due, and owing at the time it was filed.
Summary: A Petition for Benefits was filed ninety-one weeks after the date of accident requesting permanent total disability benefits from the date of statutory maximum medical improvement.
The JCC accepted the Employer/Carrier’s argument that at the time the claimant filed the petition, it was impossible for the claimant to be at statutory maximum medical improvement because 104 weeks from the date of accident had not expired and the claimant was receiving temporary total disability benefits at the time the Petition was filed.
Dexter L. Hackley v. Waterproofing Specialists, Inc./Summit
JCC Humphries; Jacksonville District; Order Date: November 5, 2015
OJCC Case: 15-007243RJH; D/A: 8/20/2014
Claimant’s Counsel: Christopher Puleo
Employer/Carrier’s Counsel: Benford Samuels
Briefly: MOTION TO ENFORCE SETTLEMENT – JCC Humphries granted the Employer/Carrier’s Motion to Enforce Settlement and found that although the claimant sought to rescind or delay enforcement of the settlement as a result of child support reportedly due, there was no evidence to suggest the claimant was misled or otherwise induced into the settlement agreement.
Summary: The claimant testified he would not have entered into the agreement had he known he owed any child support and sought rescission of the settlement agreement based upon a unilateral mistake of fact. The JCC noted that an agreement may be rescinded on the basis of a unilateral mistake of fact if it is shown that: 1) the mistake was induced by the party seeking to enforce the agreement; 2) there is no negligence or want of due care on the party seeking to avoid the agreement; 3) denial of a release from the agreement would be inequitable; and 4) the position of the opposing party has not so changed that granting the relief would be unjust.
The JCC found the claimant failed to establish the existence of any of the required elements to rescind the agreement reached and noted that counsel for the claimant conceded that child support was an important part of the deliberations to negotiate settlement, but neither party made the child support amount the condition of the settlement.
Ralph Leverette v. Putnam County Sheriff’s Office/Gallagher Bassett Services, Inc.
JCC Holley; Jacksonville District; Order Date: November 5, 2015
OJCC Case: 14-026880WRH; D/A: 1/31/2014
Claimant’s Counsel: John Rahaim
Employer/Carrier’s Counsel: Neal Patel & Edward T. LeFever
Briefly: 120 DAY RULE – JCC Holley granted a Motion for Summary Order filed by the claimant and found that there are no genuine issues of fact as it relates to the legal determination that the compensable injury cannot be challenged after 120 days on the basis that the compensable injury never met the major contributing cause standard in the first place.
Summary: The Employer/Carrier acknowledged that the heart condition and hypertension claims were accepted as compensable and it is undisputed that the Employer/Carrier did not controvert the claim within 120 days. Further, the Employer/Carrier acknowledged that they continued to provide medical care well after the 120 day timeframe. Although the date of accident is January 31, 2014, the Notice of Denial was sent to the Division on May 27, 2015, totally denying the claim based upon the medical opinion of the IME physician that the major contributing cause of the cardiac condition is not the work injury, but rather a combination of pre-existing conditions.
The JCC found that the evidence presented at the hearing on the Motion for Summary Order did not conflict on whether there was a change in status following the 120 day period to demonstrate a “break” in the causation chain.