FL Case Law Summaries – 12/14/15
BY:
JCC ORDERS
Leonardo Vazquez v. Acosta Tractors, Inc./Cannon Cochran Management Services
JCC Massey; Tampa District; Order Date: December 9, 2015
OJCC Case: 15-002155MAM; D/A: 11/5/2014
Claimant’s Counsel: Jose Larraz
Employer/Carrier’s Counsel: Adrienne Hausser
Briefly: MISREPRESENTATION DEFENSE – JCC Massey denied the misrepresentation defense and accepted the testimony of the claimant that he did not injure his left knee in a prior accident as alleged by the Employer/Carrier.
Summary: At deposition, the claimant admitted to being involved in a prior accident and injuring his left foot and left big toe, but specifically denied any knee injury or knee problems associated with that accident. With regard to the prior accident, the claimant retained a personal injury attorney to represent him in the case and went to a clinic called Hendz In Motion where he saw Dr. Carlos Gentile and received physical therapy. The JCC found that the testimony and records of Dr. Gentile and the Hendz in Motion personal injury clinic were less than credible and were clearly generated solely for the purpose of supporting claimant’s personal injury case as the clinic attempted to include as many parts (and x-rays of those body parts) as they possibly could.
The JCC noted that the claimant appeared to be truly bewildered by the laundry list of alleged diagnoses contained in Dr. Gentile’s records. The JCC accepted the testimony of the claimant that he did not injure his knee in the prior accident over any contrary testimony and records from Dr. Gentile.
Lenny Collins v. Palm Beach County Fire Rescue/Palm Beach County Risk Management/PGCS
JCC D’Ambrosio; West Palm Beach District; Order Date: December 9, 2015
OJCC Case: 14-023497MAD; D/A: 8/18/2014
Claimant’s Counsel: Michael Celeste
Employer/Carrier’s Counsel: John Clarke
Briefly: HEART AND LUNG PRESUMPTION F.S. §112.18 – JCC D’Ambrosio found the claimant is not entitled to the presumption of the F.S. §112.18 as there was no physical examination performed as a pre-requisite to employment, and even if a physical exam from a prior employer was accepted, such exam revealed evidence of hypertension.
Summary: The JCC found that the claimant is not entitled to the §112.18 presumption as there was no physical examination performed upon entering his employment with the Palm Beach County Fire Rescue, the Employer in this workers’ compensation claim.
Alternatively, the JCC accepted the opinion of the IME physician for the Employer/Carrier, Dr. Chernobelsky, that the blood pressure reading of 150/80 for the claimant’s prior employer, the City of West Palm Beach, is evidence of heart disease and, therefore, the claimant is precluded from proving under F.S. §112.18 that he successfully passed a physical examination upon entering service as a fire fighter, which examination failed to reveal any evidence of hypertension.
The JCC found that the language of F.S. §112.18 is clear and unambiguous when referring to “evidence of a condition” and stated that, if the legislature intended to require “proof” of condition, they would have worded the statute differently.
Ela Gonzalez v. Maewood Food, d/b/a McDonald’s/Amerisure Mutual Insurance Company
JCC Kerr; Miami District; Order Date: December 9, 2015
OJCC Case: 12-005404MGK; D/A: 12/6/2011
Claimant’s Counsel: Monica De Feria Cooper
Employer/Carrier’s Counsel: Bill Rogner
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Kerr denied the claim for medical treatment and accepted the Employer/Carrier’s position that the claimant suffered a compensable injury that resolved completely and that her current complaints are unrelated to her industrial injury.
Summary: The JCC accepted the opinion of the Expert Medical Advisor, Dr. Hodor, as consistent with various other physicians that the claimant had non-organic findings in the absence of significant objective abnormality noted on the MRI, CT of the cervical spine, and physical examinations. Dr. Hodor agreed with various other physicians that claimant’s complaints have a large emotional component to them.
The claimant asserted the Employer/Carrier was estopped from raising the major contributing cause defense as the claimant’s injuries were accepted as compensable and the Employer/Carrier failed to demonstrate a break in the causation chain. The JCC found that, while claimant has established causal connection between the accident and her injuries, the claimant still has the burden of proof of establishing medical necessity for the claimed medical benefits. The JCC found that the overwhelming medical evidence substantiates no further palliative treatment is medically necessary for claimant’s compensable injuries.
Luis Lobaina v. Z Ocean Hotels/De Soleil Management/Guarantee Insurance Company
JCC Kerr; Miami District; Order Date: December 9, 2015
OJCC Case: 15-001777MGK; D/A: 10/1/2014
Claimant’s Counsel: Kevin Gallagher & Rayo Moreno
Employer/Carrier’s Counsel: Jessica Blydenburgh
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Kerr denied compensability of the claimant’s injury and subsequent psychological condition and found no medical evidence to support the claimant’s allegations that he suffered new symptoms following a fainting episode at work.
Summary: The JCC found the claimant failed to carry his burden of proof to establish a causal connection between his employment and his physical and psychological complaints. The JCC found the claimant’s history was unreliable and accepted the medical records over the testimony of the claimant. The JCC also rejected the claimant’s’ IME physician, Dr. Suarez, and noted that Dr. Suarez relied heavily on the claimant’s history in reaching his conclusion on causality. The JCC concluded the claimant’s physical and psychiatric conditions are personal in nature and pre-existed his fainting episode at work.
The JCC also rejected the claimant’s testimony regarding timely notice of injury.
Terrell P. Snowden v. Yellow Freight Systems, Inc./Sedgwick CMS
JCC Castiello; Miami District; Order Date: December 9, 2015
OJCC Case: 10-029468GCC; D/A: 6/15/1994
Claimant’s Counsel: James Payer
Employer/Carrier’s Counsel: Scott Miller
Briefly: CAUSAL RELATIONSHIP OF MEDICAL TREATMENT – JCC Castiello denied authorization of trigger point injections with Dr. Eddie Sassoon and found the claimant’s current need for trigger point injections is his progressive, degenerative disease, and not anything related to his 1994 compensable accident.
Summary: The JCC found that the injuries suffered in the 1994 accident have long since resolved.
Mark Spofford v. Dixie Metal Products, Inc./Amerisure Insurance
JCC Hill; Gainesville District; Order Date: December 9, 2015
OJCC Case: 15-015853MRH; D/A: 6/2/2014
Claimant’s Counsel: Mark Tipton
Employer/Carrier’s Counsel: William Rogner
Briefly: DIAGNOSTIC TESTS – JCC Hill awarded the recommended diagnostic testing and evaluation in order to determine the cause of claimant’s symptoms and which symptoms may be related to the compensable accident.
Summary: The JCC accepted persuasive medical evidence that an MRI of the lumbar spine and x-rays of the lumbar spine are necessary to determine whether claimant’s current low back pain is caused by an aggravation of a pre-existing condition or is the result of a new lumbar spine injury.
Stephanie Kirkland v. Florida Dept. of Business & Professional Regulation/Division of Risk Management
JCC Lazzara; Tallahassee District; Order Date: December 10, 2015
OJCC Case: 15-009790JJL; D/A: 3/26/15
Claimant’s Counsel: Paul M. Anderson
Employer/Carrier’s Counsel: Kimberly A. Fernandes
Briefly: GOING AND COMING RULE – JCC Lazzara denied compensability of the claimant’s slip and fall accident that occurred off premises after the claimant completed work.
Summary: The claimant completed her work shift and exited the office building where she worked and headed towards her motor vehicle which was located in the adjacent parking lot across from her office complex. She slipped and fell as she was nearing her car. The claimant contended that the Employer leased its office space and that the parking lot wherein the employees were permitted and directed to park is part of the Employer’s lease agreement with the owner/landlord.
The JCC found that the Employer was not the owner of the work premises or owner of the adjacent parking lot where the slip and fall occurred, although its employees had use of the parking lot.
Although the claimant was directed to park in the lot where she was injured, the JCC found no evidence that the lot was under some control or some special use by the Employer. In the absence of evidence of any actual domination, control, or maintenance by the Employer of the parking lot and its use, the JCC found the claimant’s injuries are not compensable under the “premises” exception to the going and coming rule.
The JCC also found there is no “special hazard” or danger at the off-premises location.
Barbara Bostwick v. E.T.R./FFVA Mutual Insurance Company
JCC Pitts; Orlando District; Order Date: December 10, 2015
OJCC Case: 15-013171NPP; D/A: 6/2/2015
Claimant’s Counsel: Pro Se, formerly Lyle B. Masnikoff
Employer/Carrier’s Counsel: James B. Birmingham
Briefly: MOTION TO ENFORCE SETTLEMENT – JCC Pitts denied the Employer/Carrier’s Motion to Enforce Settlement Agreement and found that, although the claimant cashed the $2,000 advance, there was no evidence of the claimant’s acceptance of the Employer/Carrier’s offer to settle her case or that the parties were in mutual assent and reached a meeting of the minds to all essential terms of the alleged settlement.
Summary: The JCC accepted the claimant’s testimony regarding the issue of whether she understood, when she signed the settlement agreement, the Medicare Set-Aside process, how the MSA would affect the payment of her future medical expenses relating to the compensable injuries, and the requirement to execute additional documentation, including the HIPAA release form, in order to process the MSA to obtain CMS approval.
The JCC accepted the claimant’s testimony that she did not understand what the MSA provisions were, how the process was going to work, or how her future medical bills were to be paid or processed (a critical issue since she was on Medicare), or her obligation to execute a release so that the MSA approval could be obtained from CMS.
The JCC also found that the Employer/Carrier did not meet the burden of proof to establish mutual assent to the settlement agreement despite providing the claimant with a $2,000 advance.
Craig Kolnick v. City of Boca Raton/Johns Eastern Company, Inc./City of West Palm Beach
JCC D’Ambrosio; West Palm Beach District; Order Date: December 10, 2015
OJCC Case: 15-008712MAD; D/A: 3/10/2014
Claimant’s Counsel: Michael Celeste
Employer/Carrier’s Counsel: Beth Leahy
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS – JCC D’Ambrosio granted the claim for temporary partial disability benefits and reinstatement of sick leave and found the Employer/Carrier did not satisfy its burden of proof to show the claimant was offered a suitable, light-duty job.
Summary: The Employer/Carrier argued the claimant voluntarily limited his income by not seeking light-duty work with the Employer following claimant’s light-duty release. However, the JCC found that the claimant was never informed that he could drive to and from work and was entitled to rely on his understanding that he was not able to drive at all as a result of his compensable injuries and resulting surgeries.
The JCC noted that, although an Employer is not required to continually re-offer a job to avail itself of the voluntarily limitation of income defense, the Employer “must establish a continued availability of the job each applicable period to obtain the continued benefit of defense.” Here the Employer/Carrier did not establish that it offered the claimant a suitable light-duty job and that the claimant unjustifiably refused that offer. The JCC accepted the claimant’s testimony that he was not aware he was released to drive to and from work during the relevant period of time and found that previously the claimant was restricted from driving to work due to his industrial injury and subsequent surgeries.
Jon McRee v. Employer #1 Auto Zone, Inc./Gallagher Bassett Services, Inc. and Employer #2 Mosaic Sales Solution/Hartford Insurance of the Southeast
JCC Rosen; St. Petersburg District; Order Date: December 10, 2015
OJCC Case: 13-025650SLR; D/A: 4/1/2011
Claimant’s Counsel: Christopher Petruccelli
Counsel for Employer #1: Jeffrey Novell
Counsel for Employer #2: Abigail Voronec
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Rosen awarded permanent total disability benefits and found that the claimant is not capable of at least sedentary duty within fifty miles of his residence.
Summary: The JCC found that the claimant showed extremely limited physical abilities based upon a serious cervical spine surgery and headaches related to his first industrial accident and very limited use of his right hand following seven surgeries from the second industrial accident. The JCC noted the claimant has not worked since 2012 and stopped work to have the numerous surgeries as a result of the industrial accidents. The JCC accepted the testimony of the vocational expert retained by the claimant that he cannot engage in gainful employment within a fifty mile radius of his residence based upon the significant restrictions from both accidents.
The JCC found the two separate industrial accidents have combined to render the claimant significantly disabled and impaired and, in combination with his past relevant employment experience, the claimant is unemployable. The JCC found each Employer/Carrier shall be responsible for 50% of the payment of permanent total disability compensation.
Thomas A. Vanover v. Florida Power & Light Company/Liberty Mutual Insurance/Helmsman Management Services
JCC Dietz; Sebastian-Melbourne District; Order Date: December 10, 2015
OJCC Case: 85-001073RLD & 91-00152RLD; D/A: 11/13/1985 & 4/9/1991
Claimant’s Counsel: Richard Sicking & Mark Touby
Employer/Carrier’s Counsel: Gary Schloss
Briefly: HOT TUB – JCC Dietz awarded the hot tub requested by the claimant as medically necessary, reasonable and related to the claimant’s work-related medical condition.
Summary: The JCC accepted the claimant’s testimony that he was receiving ongoing daily medical benefit by use of a hot tub between 1997-2012, particularly from the heated water and pulsated jets directed to the injured areas of the body to reduce muscle spasms and pain due to the industrial accident. Between 2012 and 2015, the claimant relied on neuromuscular massage therapy and prescriptions and muscle relaxers to cope with his muscle spasm and pain.
The JCC found that the hot tub is more important at this time since Dr. Leber is attempting to wean the claimant off muscle relaxer prescriptions. The JCC found that pursuant to the testimony of Dr. Leber, the claimant’s current authorized treating physician, the hot tub is recommended as causally related to the work injuries and medically necessary.
Jeffrey L. Stabel v. Performance Good Group/Gallagher Bassett Services, Inc.
JCC Hill; Gainesville District; Order Date: December 10, 2015
OJCC Case: 15-016580MRH; D/A: 6/14/2013
Claimant’s Counsel: Anthony J. Salzman
Employer/Carrier’s Counsel: Pamela L. Foels
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS – JCC Hill awarded temporary partial disability benefits and found the claimant established and conducted an extensive, unsuccessful job search and was terminated from employment due to his physical inability to perform his work.
Summary: The JCC noted that the claimant wanted to undergo recommended surgery to improve his condition; however, the claimant’s nicotine addiction hindered his recovery. Although the claimant requested assistance from the adjuster to remove this hindrance to recovery, the adjuster refused. The JCC noted the claimant was not represented by counsel during this time and eventually stopped smoking. As soon as he stopped smoking, he returned to see the physician who continued to recommend surgery.
The JCC found the claimant was terminated due to his physical inability to perform his job and, therefore, a job search was not necessary. However, the JCC found the claimant performed an extensive and unsuccessful job search and is entitled to temporary partial disability benefits.
Maeva Adler v. Ocean Properties LTD/MEMIC Indemnity Company
JCC Punancy; West Palm Beach District; Order Date: December 10, 2015
OJCC Case: 13-023452SHP; D/A: 5/4/2013
Claimant’s Counsel: Scott Cohen
Employer/Carrier’s Counsel: Matthew Jones
Briefly: MAJOR CONTRIBUTING CAUSE; COMPLEX REGIONAL PAIN SYNDROME – JCC Punancy rejected the Employer/Carrier’s position that the mention of possible complex regional pain syndrome (CRPS) in medical reports prior to the industrial accident calls into question the issue of causation of the CRPS condition.
Summary: The JCC accepted the opinions of Drs. Hoch, Parish and Patin that the claimant suffers from CRPS and is recommended to undergo Ketamine Infusions as medically necessary treatment. The JCC rejected the opinions of Dr. Epstein, who has never treated CRPS with Ketamine Infusion.