FL Case Law Summaries – 12/15/15
BY:
1ST DCA ORDERS
Certistaff, Inc./Summit Holdings v. Kenneth Owen
Appeal of the Order from JCC Sojourner
DCA Order Date: December 11, 2015
Case: 1D15-1513; D/A: 12/5/2013
Appellant’s Counsel: H. George Kagan & Donald S. Bennett
Appellee’s Counsel: Laurie T. Miles & Wendy Loquasto
Briefly: – The 1st DCA held that JCC Sojourner improperly rejected the presumptively correct opinion of the Expert Medical Advisor and determined instead that the major contributing cause of the claimant’s need for the recommended shoulder replacement surgery was a work-place injury. The DCA found the JCC failed to articulate clear and convincing evidence to reject the EMA opinion.
Summary: The Expert Medical Advisor in this case testified that the major contributing cause of the need for treatment was the claimant’s pre-existing degenerative shoulder condition. The JCC rejected the EMA opinion and concluded that the claimant may have remained asymptomatic and may not have required a shoulder replacement surgery in the absence of the compensable injury. Further, the JCC found that the pre-existing condition had not independently required treatment.
The DCA held that, although the case relied upon by the JCC, Spence, 155 So. 3d at 1198, does speak to a major contributing cause analysis based on the level of treatment required by the pre-existing condition, the JCC’s error was to focus solely on whether the claimant was, or recently had been, undergoing physician-provided medical treatment for his pre-existing shoulder condition. The DCA noted that the pre-injury symptoms the claimant experienced may not have risen to a sufficient level to lead him to seek active medical treatment from a physician, but did refute the JCC’s suggestion that the claimant was “asymptomatic” as demonstrated by the claimant’s testimony that he was taking over-the-counter pain relievers for shoulder pain prior to the accident.
The DCA held that the JCC did not support her conclusion that the workers’ compensation accident constituted the major contributing cause with clear and convincing evidence sufficient to disregard the Expert Medical Advisor’s presumptively correct opinion that the pre-existing shoulder condition was the major contributing cause.
JCC ORDERS
Mario Velasquez v. Custom Group, Inc./Bridgefield Employers Insurance Company
JCC Kerr; Miami District; Order Date: December 11, 2015
OJCC Case: 14-020471MGK; D/A: 7/25/2013
Claimant’s Counsel: Ivan Morales
Employer’s Counsel: Sylvia Krainin
Carrier’s Counsel: Omar Perez
Briefly: COVERAGE – JCC Kerr found that there was a valid workers’ compensation insurance policy in effect on the date of accident and that the Carrier failed to establish that a notice of cancellation/termination of the workers’ compensation insurance policy was sent to the Employer as required by law.
Summary: JCC Kerr found the Carrier has a the burden of proving that proper notice of termination/cancellation was issued to the Employer under F.S. §440.42(3), which states that no contract or policy of workers’ compensation insurance shall expire or be cancelled until at least thirty days have elapsed after a notice of cancellation has been sent to the department and to the employer in accordance with the provisions of F.S. §440.185(7). For cancellation due to non-payment, at least ten days notice must be given.
The JCC also noted that, pursuant to the EDI Technical Requirements 69L-56.200, any workers’ compensation insurance policy issued after October 1, 2003, may not be cancelled or non-renewed for non-payment of premium until or unless the insurer has mailed notification of the cancellation or non-renewal to the employer at least ten days before the effective date of cancellation or non-renewal.
In this case, the JCC found no written proof of mailing via postal certificate or receipt, and no testimony by a person who actually mailed the subject notice of cancellation and, therefore, found that the Carrier failed in its burden of proving that the notice of cancellation was ever sent to the insured Employer.
Jacques Brown v. Advance Auto Distribution Center/Sedgwick CMS
JCC Massey; Tampa District; Order Date: December 11, 2015
OJCC Case: 14-023163MAM; D/A: 4/2/2014
Claimant’s Counsel: Steven Zucker
Employer/Carrier’s Counsel: Grant Kindrick
Briefly: ADVANCE – JCC Massey denied the Motion for Advance in the amount of $2,000 and found that the claimant had previously received a $2,000 advance in this case and that no money has been recouped from that advance. The JCC found that the instant advance is governed by the more stringent standards contained in F.S. §440.20(12)(d).
Summary: The JCC found that the claimant was actually requesting an advance totaling $4,000 and, therefore, the more stringent standards contained in F.S. §440.20(12)(d) provide that the JCC must determine the following: (1) the advance is in the best interests of the claimant; (2) the advance will not materially prejudice the rights of the Employer/Carrier; and (3) the advance is reasonable under the circumstances.
The JCC made no finding as to whether the advance is in the claimant’s best interest, but did find the advance would materially prejudice the rights of the Employer/Carrier and is not reasonable under the circumstances. The JCC found it was not shown that the claimant would be eligible for workers’ compensation disability benefits in the future, from which the advance could be recouped. Also, the JCC found it is not clear what purpose would be served by awarding an additional advance, especially since the claimant made no effort to repay any part of the previous advance.
John Columbia v. City of Tampa/Commercial Risk Management, Inc.
JCC Lorenzen; Tampa District; Order Date: December 11, 2015
OJCC Case: 14-026037EHL; D/A: 9/14/2014
Claimant’s Counsel: Tonya Anne Oliver
Employer/Carrier’s Counsel: L. Gray Sanders
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Lorenzen found that the Employer/Carrier did not rebut the presumption of compensability afforded by F. S. §112.18.
Summary: Claimant is a member of the protected class because he is a sworn law enforcement officer. The claimant has heart disease in the form of atrial fibrillation which is a covered condition. The JCC found the claimant was hospitalized on the date of accident for a week and unable to return to work for several months and, therefore, suffered a disability. Also, the JCC found that the claimant underwent a pre-employment physical examination which revealed no evidence of heart disease or atrial fibrillation. The JCC found that the claimant proved all elements to invoke the statutory presumption of compensability.
In order to rebut the presumption, the Employer/Carrier relied on the testimony of Dr. Perloff, the Employer/Carrier’s Independent Medical Examiner, who testified that an over-active thyroid condition, hyperthyroidism, can cause atrial fibrillation. Dr. Perloff noted that claimant’s thyroid stimulating hormone (TSH) level indicated the claimant was suffering from hyperthyroidism at the time of his hospitalization.
The JCC found that the Employer/Carrier relied on the fact that the claimant was suffering from hyperthyroidism on the date of accident, but overlooked the balance of Dr. Perloff’s testimony on causation where Dr. Perloff opined that, if the claimant continued to have atrial fibrillation after completing treatment for hyperthyroidism, then hyperthyroidism was not the cause of the atrial fibrillation. The JCC found that the Employer/Carrier proved that hyperthyroidism is a cause of atrial fibrillation, but failed to prove that hyperthyroidism was the cause of claimant’s atrial fibrillation because it failed to do the necessary discovery to prove that claimant no longer suffered from atrial fibrillation.
Diana Valencia v. E/C #1: Resorts World Omni, LLC/Liberty Mutual Insurance and Employer #2: Bimini Superfast Operations
JCC Humphries; Jacksonville District; Order Date: December 11, 2015
OJCC Case: 13-017561RJH; D/A: 6/26/2013
Claimant’s Counsel: Carolyn Frank
Counsel for Employer/Carrier #1: Eugene Flinn
Counsel for Employer #2: Anthony Strasius
Briefly: EMPLOYER/EMPLOYEE RELATIONSHIP; BORROWED SERVANT – JCC Humphries found that Resorts World Omni, LLC (RWO), is the Employer for the claimant and is responsible for the subject accident. The JCC found that the claimant was performing work under the direct control and for the benefit of RWO at the time of the injury and that the “borrowed servant” doctrine determined the case.
Summary: In this case, the claimant “wore many hats” and was integrally involved in a work project and was transferred from Bimini Superfast Operations (RWBB) to Resorts World Omni, LLC (RWO) for the express purpose of setting up a casino. The JCC found that RWBB loaned the claimant to RWO and, therefore, RWO had substituted for RWBB as the Employer of the claimant at the time of the accident. The JCC found that at the time of the accident, RWO had the right to control claimant’s activities, and in fact, exercised control directing the activities that resulted in the claimant’s accident.