FL Case Law Summaries – 1/19/16
BY:
JCC ORDERS
Aurelio Lawrence v. American Airlines/Sedgwick CMS
JCC Massey; Tampa District; Order Date: January 15, 2016
OJCC Case: 13-016086MAM; D/A: 12/28/2012
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Robert Donahue
Briefly: TTD; TPD – JCC Massey denied the claims for temporary total and temporary partial disability due to a lack of medical evidence or testimony to support same.
Summary: The JCC noted that the only medical evidence submitted were the testimony and records of Dr. Font-Rodriguez, who did not begin to see the claimant until subsequent to the period of disability at issue. The JCC found there is nothing in Dr. Font-Rodriguez’ testimony or records which addressed the claimant’s work status during the period at issue and, although it is possible for a physician to render an opinion on a claimant’s work status retroactively, no such opinion was offered in this case.
The JCC did not accept the claimant’s testimony alone that he was under restrictions during the period of time at issue.
Maria Suarez v. SCI/Gallagher Bassett Services, Inc.
JCC Medina-Shore; Miami District; Order Date: January 15, 2016
OJCC Case: 15-015051SMS; D/A: 4/20/2015
Claimant’s Counsel: Grethal San Miguel
Employer/Carrier’s Counsel: David Gold
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Medina-Shore denied the claim for temporary partial disability benefits for a period of time when there was no evidence the claimant had any physical restrictions. However, the JCC awarded temporary partial disability benefits for the period of time the claimant had work restrictions limiting her standing and walking on uneven surfaces and found that the claimant experienced a loss of earnings during the period of time work restrictions were in place.
Summary: The claimant was a sales counselor at a funeral home who assisted customers by selling funeral services and/or burial and mausoleum plots. The JCC found work restrictions from the authorized physician limiting standing and walking on uneven surfaces, such as the cemetery grounds, were very problematic as the claimant would not be able to show her customers the locations of the burial plots or perform other required job duties on the cemetery grounds. The JCC found her sales were significantly impacted and she suffered a reduction of her wages below 80% of the pre-injury average weekly wage.
The JCC explained that once the claimant established a causal connection between the compensable injury and the subsequent loss of income, the burden shifted to the Employer/Carrier to provide proof that during the period of time at issue the claimant refused to work and voluntarily limited her income. The JCC found that the Employer/Carrier failed to establish such proof.
Johnathan P. Sinkes v. City of Miami Beach Risk Management/Johns Eastern Company, Inc., and Corvel Corporation
JCC Castiello; Miami District; Order Date: January 15, 2016
OJCC Case: 04-013601GCC; D/A: 7/11/2003
Claimant’s Counsel: Frank Angione
Employer/Carrier’s Counsel: Luis F. Estrada
Briefly: MEDICAL NECESSITY – JCC Castiello denied the claim for authorization of a follow-up appointment with Dr. Lewis Eastlick and found the claimant provided no medical evidence to contradict the evidence of his treating doctor, who opined in no uncertain terms, that further medical care was not medically necessary.
Summary: The JCC found that the claimant attempted to depict the Employer/Carrier as having misled him into believing that Dr. Eastlick’s care would be authorized in perpetuity without regard to the predicate legal requirements. The JCC found that this argument was not compelling and noted that the claimant had to file Petitions for Benefits on his last four attempts to see Dr. Eastlick, presumably because an attempted visit was denied. Additionally, the JCC noted the claimant provided no medical evidence to contradict the opinion of his treating doctor who testified that no further medical care was medically necessary.
Although the claimant explained that he was making appointments to see Dr. Eastlick so he could preserve his rights to benefits under workers’ compensation, the JCC found that while this was understandable, it was not medically necessary that the claimant obtain further care with Dr. Eastlick.
Alvaro Lomonte v. Target/Sedgwick CMS
JCC Kerr; Miami District; Order Date: January 15, 2016
OJCC Case: 11-013660MGK; D/A: 5/6/2011
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: David Gold
Briefly: MEDICAL NECESSITY – JCC Kerr granted the claim for C4-5 disk replacement or fusion surgery as recommended by Dr. Alexander and found the Carrier failed to respond to the written request for authorization for the recommended surgery within ten days of receipt of the request and, therefore, is required to authorize the procedure unless there is a showing the procedure is not within practice parameters and protocols.
Summary: The JCC explained that since no evidence was presented to indicate the recommended surgery departs from practice parameters and protocols, she was constrained by F.S. §440.13(3)(i) to conclude the surgery as recommended by Dr. Alexander is medically necessary by virtue of the fact the Carrier failed to respond to the request within ten days.
However, the JCC also noted the Employer/Carrier’s IME neurosurgeon, Dr. Luis Pagan, provided “well-reasoned and earnest testimony as to why a patient without radicular symptoms or myelopathy should not be a candidate for cervical surgery.” Additionally, the JCC noted the claimant himself described symptoms consistent with those noted by Dr. Pagan, which did not include any radicular symptoms. Nevertheless, the surgery was awarded under the authority of F.S. §440.13(3)(i).
Angela Suarez v. Doral Hospitality Inc./PMA Insurance Company
JCC Weiss; Ft. Myers District; Order Date: January 15, 2016
OJCC Case: 11-023016JAW; D/A: 2/13/2011
Claimant’s Counsel: Monica De Feria Cooper
Employer/Carrier’s Counsel: Sal Richardson
Briefly: TPD; MISCONDUCT AND VOLUNTARY LIMITATION OF INCOME – JCC Weiss found the claimant was terminated for misconduct for stealing toilet paper from the hotel. The JCC also denied the claim for temporary partial disability benefits on the grounds that there was no evidence the claimant was taken off of work and accepted the opinion of an Expert Medical Advisor, Dr. Donshik, that the claimant reached maximum medical improvement.
Summary: The JCC accepted the Employer/Carrier’s argument that the claimant was terminated from her employment for stealing a large, clear trash bag filled with about ten rolls of toilet paper. The JCC found that when the claimant was first confronted by the Employer, she stayed quiet. Later, the claimant stated the toilet paper was hers, and at the final hearing she testified the toilet paper was given to her by a friend who did not work at the hotel. The JCC did not accept the claimant’s testimony.
Luc Souffrant v. Collier County Public Schools/Johns Eastern Company, Inc.
JCC Sturgis; Ft. Myers District; Order Date: January 15, 2016
OJCC Case: 12-009870KAS; D/A: 10/10/2005
Claimant’s Counsel: Mario Arango
Employer/Carrier’s Counsel: J. Eric Stiffler
Briefly: MAJOR CONTRIBUTING CAUSE; MEDICAL NECESSITY – JCC Sturgis found the claimant was entitled to continued care for his compensable right shoulder and upper extremity, including right rotator cuff arthroscopy as recommended by Dr. Parent. The JCC found the Employer/Carrier did not establish a break in the causation chain to preclude continued treatment for claimant’s compensable right shoulder and upper extremities.
Summary: The JCC noted that a carrier seeking to absolve itself from providing requested medical treatment necessitated by a compensable injury must show a break in the chain of causation, such as the occurrence of a new injury, a pre-existing condition, or a condition otherwise unrelated to the compensable injury. Here, the claimant met his burden of establishing that the Employer/Carrier accepted compensability of a right shoulder rotator cuff tear and upper extremity injuries, and, therefore, the Employer/Carrier had the burden of showing through medical evidence that the major contributing cause of the need for surgery for the recurrent rotator cuff tear was due to an intervening injury or pre-existing or other condition.
The JCC found that none of the medical providers were able to articulate a specific intervening event and that all medical providers opined there was no medical evidence of a pre-existing condition which caused the need for the rotator cuff tear.