FL Case Law Summaries – 12/18/15
BY:
JCC ORDERS
Deborah Palo v. Walgreens Company/Sedgwick CMS
JCC Rosen; St. Petersburg District; Order Date: December 15, 2015
OJCC Case: 14-028847SLR; D/A: 6/27/2014
Claimant’s Counsel: Vivian E. Yates
Employer/Carrier’s Counsel: Christopher L. Petruccelli
Briefly: PERMANENT TOTAL DISABILITY – JCC Rosen awarded permanent total disability benefits and found the 64 year old claimant performed an exhaustive job search within her past work experience and physical limitations, rendering her incapable of performing even sedentary employment within a fifty mile radius of her home.
Summary: The JCC accepted the claimant’s unrefuted testimony that she improved her resume and applied for 20-25 paralegal/secretary part-time or full-time positions online. The JCC found the claimant has not worked since her date of accident and the Employer did not have work within her physical restrictions. The JCC rejected the Employer/Carrier’s defense that the claimant is capable of performing sedentary duties.
The JCC also noted that the Employer/Carrier’s vocational expert did not do a job canvas for actual employment “nor was she empowered to explain to the claimant what type of work might be available to the claimant within her limitations and her past work experience”. Any references to potential jobs in the Employer/Carrier’s vocational expert’s report were made subsequent to the vocational expert’s interview with the claimant.
Stacey Henry v. Anthony’s Coal Fired Pizza/Frank Winston Crum Insurance
JCC Forte; Ft. Lauderdale District; Order Date: December 16, 2015
OJCC Case: 11-006173IF; D/A: 12/21/2010
Claimant’s Counsel: Martha D. Fornaris & Grethel San Miguel
Employer/Carrier’s Counsel: Kate E. Albin
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Forte denied the claim for continued treatment with an authorized provider and accepted the uncontradicted opinions of several physicians that the claimant was at maximum medical improvement with a 0% permanent impairment rating without the need for orthopedic treatment.
Summary: The claimant relocated to Tennessee and requested authorization of a physician for a compensable low back injury. The JCC found the claimant failed to establish the medical necessity of the need for ongoing treatment.
The JCC noted the claimant was evaluated by three physicians in the span of two of years who agreed the claimant reached the point of maximum medical improvement with no residual permanent impairment, restrictions, or additional need for treatment. The JCC noted there was no medical evidence to conflict with the medical opinions in evidence and that mere subjective complaints of pain from the claimant are not enough to award the requested medical treatment.
Noura Dahmani v. Salems Gyros and More/CCMSI
JCC Rosen; St. Petersburg District; Order Date: December 16, 2015
OJCC Case: 15-020181SLR; D/A: 2/6/2015
Claimant’s Counsel: Dean Burnetti
Employer/Carrier’s Counsel: Tyler Dupuy
Briefly: MOTION TO DISMISS FOR LACK OF SPECIFICITY – JCC Rosen dismissed the claim for permanent total disability benefits as non-specific and for not stating a maximum medical improvement date.
Summary: The claimant failed to list a maximum medical improvement date on the Petition for Benefits. The claimant then filed an Amended Petition for Benefits, however, the amended Petition set forth a closed period of permanent total disability and the attorney for the claimant indicated that was an error and that the claim for permanent total disability should be open-ended.
The JCC dismissed both Petitions for Benefits without prejudice and found that the amended Petition did not put the Employer/Carrier on proper notice of the exact claim for permanent total disability benefits.
Mario Esquivel v. Aramark Uniform Services/Sedgwick CMS
JCC Kerr; Miami District; Order Date: December 16, 2015
OJCC Case: 12-024733MGK; D/A: 11/29/2011
Claimant’s Counsel: Richard E. Chait
Employer/Carrier’s Counsel: Jeffrey M. Novell
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Kerr awarded permanent total disability benefits and found that the claimant was unable to work even in a sedentary capacity on a sustained basis as a result of his work injury and that there was no work that would be appropriate for the claimant within a 50-mile radius of his residence.
Summary: The JCC accepted the claimant’s vocational testimony as un-contradicted. Additionally, the JCC accepted the claimant’s uncontradicted testimony and description of current limitations arising from the accident.
Margaret Inzerillo v. Standard Pacific Homes/York Risk Services Group
JCC Massey; Tampa District; Order Date: December 16, 2015
OJCC Case: 15-000664MAM; D/A: 10/17/2014
Claimant’s Counsel: David Bromley
Employer/Carrier’s Counsel: Thomas Moore & Kevin Murphy
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS – JCC Massey found the claimant established a prima facie case for entitlement to temporary partial disability benefits as the claimant has not reached maximum medical improvement and continues to be under restrictions which prevent her from performing her pre-injury job and has suffered lost wages. The JCC found the Employer/Carrier failed to carry their burden to prove an affirmative defense to the payment of temporary partial disability benefits.
Summary: The JCC rejected the defense of voluntary limitation of income and deemed earnings. The JCC noted there was no evidence presented that the claimant was offered suitable employment within her restrictions, or that she had refused an offer of suitable employment. Additionally, the JCC found there was no evidence presented that the claimant left her employment without just cause, and therefore deemed earnings are not applicable under F.S. §440.15(7).
The JCC also found that whether or not the claimant returned the DWC-19 Employee Earnings Report Forms does not determine the claimant’s entitlement to temporary partial disability benefits for time periods in question. The JCC found that the Forms only affect when the benefits are payable if the claimant is otherwise entitled.
Frank Pinto v. Continental Granite and Marble/Auto Owners
JCC Anderson; Daytona Beach District; Order Date: December 16, 2015
OJCC Case: 13-000482WWA; D/A: 12/5/2012
Claimant’s Counsel: Stephen Wilson
Employer/Carrier’s Counsel: Joshua Day
Briefly: PENILE IMPLANT, MATTRESS, WHEELCHAIR – JCC Anderson granted the claim for penile implant surgery, but denied the request for an orthopedic mattress and wheelchair.
Summary: The JCC accepted the opinion of Dr. Robert Broderick, an authorized treating neurologist, who recommended that the claimant receive a penile implant and to treat erectile dysfunction caused by the severe crush injury to his pelvic area. The JCC rejected the Employer/Carrier’s defense that the penile implant is not medically necessary or related to the accident. The JCC noted that although the surgery is elective, it is appropriate to partially restore the claimant’s pre-accident sexual function.
The JCC denied the claim for an orthopedic mattress and found that the Employer/Carrier previously provided a bed and orthopedic mattress which was inspected recently by a durable medical equipment consultant who concluded the mattress was not sagging, worn, or otherwise defective.
The JCC also found the reclining wheelchair previously provided by the Employer/Carrier is adequate to meet the medical necessity requirements as long as its missing parts are replaced.
Brian E. Deery v. Desoto Juvenile Center/Division of Risk Management
JCC Weiss; Ft. Myers District; Order Date: December 16, 2015
OJCC Case: 04-009478JAW & 04-007569JAW; D/A: 3/12/2002 & 11/09/2002
Claimant’s Counsel: Brian O. Sutter
Employer/Carrier’s Counsel: Barbi L. Feldman & Michael J. Schwartz
Briefly: ATTORNEY’S FEES – JCC Weiss found that the claimant’s counsel is entitled to an attorney’s fee based on hours for these 2002 dates of accident.
Summary: The JCC found the claimant prevailed on a number of issues including the proper determination of an impairment rating and impairment benefits. The JCC found that an hourly rate of $250 per hour was appropriate and rejected claimant’s argument that a reasonable hourly rate is $400 per hour.
The JCC accepted claimant’s counsel’s testimony that his time records are his true time records, kept contemporaneously, and rejected the Employer/Carrier’s proposed deductions and noted that counsel for the Employer/Carrier admitted he has no firsthand knowledge of claimant’s counsel’s office practice or how much time was actually spent on the tasks listed.