FL Case Law Summaries – 12/1/15
By:
JCC ORDERS
Luis Rodriquez v. Demetech Corp./Normandy Harbor Insurance Company
JCC Medina-Shore; Miami District; Order Date: November 25, 2015
OJCC Case: 14-028630SMS; D/A: 8/5/2014
Claimant’s Counsel: David Benn
Employer/Carrier’s Counsel: Kurt Wirsing
Briefly: REHEARING ON ORDER GRANTING CLAIMANT’S MOTION TO SELECT ONE-TIME CHANGE IN PHYSICIAN – JCC Medina-Shore denied the Employer/Carrier’s Motion for Rehearing and awarded the claimant a one-time change in physicians of the claimant’s choosing on the grounds that the Employer/Carrier failed to abide by the fee schedule in offering a one-time change in physician.
Summary: The claimant requested a one-time change in orthopedic spine surgeons on April 6, 2015, and on April 7, 2015, the Employer/Carrier informed claimant in writing that Dr. Grossman was authorized as the one-time change. On that same date, Dr. Grossman provided the adjuster a letter of agreement where the Carrier agreed to reimburse Orthopedic Associates of South Broward $850 for the first visit and $200 for the follow up visit, plus $200 per hour for record reviews. The adjuster signed the agreement and faxed it to the doctor and the claimant attended an initial evaluation with Dr. Grossman on June 9, 2015, with a follow-up visit on August 21, 2015.
The claimant’s attorney was provided a payout on July 27, 2015, and on September 3, 2015, the claimant filed a Motion to De-Authorize and Strike the opinions of Dr. Grossman and award claimant a one-time change of physicians of the claimant’s choosing. The claimant argued the Employer/Carrier failed to authorize a one-time change in compliance with F.S. §440.13(13)(a) and (b)-payment of medical bills per the fee schedule in the Florida Workers’ Compensation Health Care Provider Reimbursement Manual.
On Motion for Rehearing, the Employer/Carrier raised a number of arguments including the JCC lacked jurisdiction to determine the issue and the claimant lacked standing to bring a “reimbursement dispute.” The JCC rejected these arguments and maintained the finding that the Employer/Carrier failed to authorized Dr. Grossman in compliance with F.S. §440.13(13)(a) and (b) and, therefore, the claimant was awarded a one-time change of physicians of his choosing.
In denying the Motion for Rehearing, the JCC noted that a deviation from the applicable fee schedule is permitted if there is a written agreement where the health care provider agrees to follow identified procedures aimed at providing quality medical care to injured workers at reasonable costs. The JCC found that the claimant satisfied his burden of proof that Dr. Grossman charged the Employer/Carrier and the Employer/Carrier impermissibly reimbursed the doctor for his services in excess of the applicable fee schedule. The JCC found there was no agreement to satisfy the requirement of F.S. §440.13(13)(b) to support a finding that the amount charged by Dr. Grossman warranted a deviation from the fee schedule.
The JCC noted Dr. Grossman was never properly authorized and that the issue of admissibility of Dr. Grossman’s opinions will be ripe for an evidentiary hearing if his opinions are offered into evidence. The JCC found that Dr. Grossman’s factual testimony may be admissible at an evidentiary hearing.
Yelitzabeth Mosquera v. Greenstone Management, LLC/OptaComp
JCC Massey; Tampa District; Order Date: November 25, 2015
OJCC Case: 13-020632MAM; D/A: 7/11/2013
Claimant’s Counsel: Katherine Stone
Employer/Carrier’s Counsel: Paulette Brown
Briefly: ATTORNEY’S FEE – JCC Massey awarded a guideline attorney’s fee for securing permanent total disability benefits and found that the Employer/Carrier timely filed a Response to the Petition for Benefits indicating they are accepting the claimant as PTD, but failed to issue checks to the claimant for PTD benefits until 47 days following receipt of the Petition for Benefits.
Summary: The JCC noted that the Employer/Carrier timely filed a Response to Petition, but found this did not change the fact that benefits were not paid within 30 days of the Employer/Carrier’s receipt of the Petition and, therefore, did not bar an award of attorney’s fees. The JCC found that successful prosecution of a Petition for Benefits includes “acceptance and payment of the claim.” Even though the Response to Petition indicated the Employer/Carrier was accepting the claim as PTD, the JCC found that “saying that you are willing to pay, or that you are going to pay, is not the same thing as actually paying.”
Robert Ratliff v. Jacksonville Fire & Rescue/City of Jacksonville Risk Management
JCC Holley; Jacksonville District; Order Date: November 25, 2015
OJCC Case: 15-005677WRH; D/A: 11/17/2014
Claimant’s Counsel: John J. Schickel
Employer/Carrier’s Counsel: Thomas G. Portuallo
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Holley denied the claim for compensability of hypertension, but awarded the claim for compensability of heart disease pursuant to the presumption.
Summary: The JCC found that the claimant failed to sufficiently prove the Legal Presumption for the hypertension claim, and that the claimant did not prove he had the covered condition of “hypertension.” The JCC accepted the opinion of Dr. Dietzius that the claimant’s elevated blood pressure was not due to hypertension, as opposed to other reasons such as pain or stress.
However, the JCC did not find Dr. Dietzius’ opinion to be persuasive as competent evidence to rebut the Legal Presumption with regard to the heart disease claim. The JCC accepted the testimony of Dr. Schimmel that the cause of the claimant’s heart disease cannot be determined, notwithstanding the testimony of Dr. Dietzius that the claimant’s risk factors for the development of coronary heart disease, including hyperlipidemia and diabetes, had risen to the level of causative factors within a reasonable degree of medical certainty. Although the claimant did not argue that employment activities actually caused the claimant’s heart disease, the JCC found the Presumption was not rebutted and that the major contributing cause standard was not satisfied by the Employer/Carrier.
Nancy McGowan v. Seminole State College/Gallagher Bassett Services, Inc.
JCC Pitts; Orlando District; Order Date: November 25, 2015
OJCC Case: 14-008377NPP; D/A: 2/7/2014
Claimant’s Counsel: David Rickey
Employer/Carrier’s Counsel: Philip R. Augustine
Briefly: TEMPORARY DISABILITY – JCC Pitts awarded temporary partial disability benefits and temporary total disability benefits on the grounds that the claimant was either medically restricted or had not been informed that her no-work status had been changed to sedentary work.
Summary: The JCC accepted the claimant’s’ testimony that she attempted to return to work when she was informed that she was released to light duty, but was not successful in securing employment. The JCC found that the claimant was terminated from her employment and did not refuse any reasonable offer of employment consistent with the applicable work restrictions.
The JCC noted that the claimant’s burden to establish a causal connection between her accident and resulting lost wages does not require, but may include, evidence of an unsuccessful job search.
Patricia Phillips v. Leon County Public Works/Preferred Government Claims Solutions
JCC Lazzara; Tallahassee District; Order Date: November 25, 2015
OJCC Case: 14-028030JJL; D/A: 6/25/2012
Claimant’s Counsel: William A. Kempner
Employer/Carrier’s Counsel: Mary Cruickshank
Briefly: MEDICAL TREATMENT – JCC Lazarra granted the claim for evaluation with an orthopedist in the claimant’s locale.
Summary: The JCC found the claimant is entitled to authorization of an orthopedist to treat the claimant in her relocated geographical area, notwithstanding claimant’s failure to complain or seek prior treatment at the time she relocated.
The JCC found that the pain management physician was not the appropriate provider to render care and that pursuant to the medical evidence, the claimant needs periodic orthopedic care and that the major contributing cause for orthopedic care to treat flare-ups is the work related accident. The JCC found that the preponderance of medical evidence demonstrated that the Employer/Carrier should have authorized and provided the claimant with an evaluation with an orthopedist to determine whether reasonably medically necessary palliative care is needed.