FL Case Law Summaries – 1/22/16


Thomas G. Portuallo


Aurelio Lawrence v. American Airlines/Sedgwick CMS

JCC Massey; Tampa District; Order Date: January 20, 2016  

OJCC Case: 11-010126MAM; D/A: 9/21/2010

Claimant’s Counsel: Toni Villaverde

Employer/Carrier’s Counsel: Robert Donahue

Briefly: ATTENDANT CARE – JCC Massey granted the claim for attendant care to be paid at the Federal Minimum Wage and found there was no evidence the Employer/Carrier took any steps to contact either the claimant or the doctor’s office to determine what, if any, care and services might be required post-procedure.  

Summary: The JCC found that the claimant carried his burden of proving that attendant care was medically necessary and prescribed by a physician following each of the three injection procedures.  The JCC found that Dr. Salamon wrote a pre-op protocol instruction sheet prescribing that it was medically necessary for the claimant to have someone not only drive him home, but stay with him for the day and night of each procedure.  The Employer/Carrier argued that transportation is not attendant care.  However, the JCC found that the pre-op protocol sheet is a “prescription” that specifically specified the time period, as well as the level of care and type of assistance required. 

Further, the JCC found that an Employer/Carrier has a statutory duty to monitor a claimant’s injuries and medical treatment and provide needed benefits. The JCC found there was no evidence the Employer/Carrier took any steps to contact either the claimant or the doctor’s office to determine what, if any, care and services might be required post-procedure.


Leonardo Ernesto Gomez v. Frank Crum, Inc./Broadspire

JCC Lazzara; Ft. Lauderdale District; Order Date: January 20, 2016

OJCC Case: 12-025326JJL; D/A: 6/29/2012

Claimant’s Counsel: Rayo Moreno & Danni Germano

Employer/Carrier’s Counsel: Paul L. Luger

Briefly: 104 WEEKS; TTD/TPD/PTD – JCC Lazzara denied all claims for disability benefits and found the claimant was paid over 104 weeks of temporary indemnity benefits and that any additional temporary total disability/temporary partial disability benefits must be denied as statutory eligibility has expired. The JCC also found the claimant has not met his burden of proving permanent total disability benefits.

Summary: The JCC rejected the claimant’s argument that the authority of Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla 1st DCA 2013) supports a claim for ongoing TTD/TPD.  Instead, the JCC concluded the Westphal case does not provide a basis for the claimant to receive temporary benefits in excess of 104 weeks, but rather allows the claimant to apply for permanent total disability benefits upon exhaustion of 104 weeks of temporary benefits.

The JCC also noted that the case of Ramirez v. Jorda Enters., 164 So. 3d 1291 (Fla. 1st DCA 2015), holds that an award of temporary benefits is limited to 104 weeks.

In denying the claim for permanent total disability, the JCC analyzed the various requirements for a PTD award and found the claimant has not proven, with competent and substantial evidence, entitlement to permanent total disability benefits.


Alejandro A. Cardenas v. Don Shula’s Hotel & Golf Club/Hartford Accident and Indemnity Company

JCC McAliley; Port St. Lucie District; Order Date: January 20, 2016 

OJCC Case: 15-010682RDM; D/A: 12/22/2010

Claimant’s Counsel: Monica de Feria Cooper

Employer/Carrier’s Counsel: Clinton C. Lyons

Briefly: STATUTE OF LIMITATIONS – JCC McAliley found the claimant is barred from receiving further workers’ compensation benefits as the statute of limitations has run. 

Summary: The JCC found the last authorized medical care was provided March 15, 2011, and the last indemnity check was mailed February 25, 2011, for a period ending February 27, 2011. The JCC explained the statute of limitations precludes claimant from recovering the benefits sought in his initial Petition for Benefits filed May 12, 2015, for the date of accident of December 22, 2010.

The claimant maintained a statutory estoppel defense under F.S. §440.19(4) and asserted the carrier did not comply with the provisions of F.S. §440.185(4) and failed to send the claimant an informational brochure or otherwise communicate information explaining the statute of limitations time limits.  The JCC found the evidence did not support this contention.


Vincent Vaccarello (deceased) v. All Railroad Services Corp./SeaBright Insurance

JCC Humphries; Jacksonville District; Order Date: January 20, 2016 

OJCC Case: 15-012398RJH; D/A: 10/3/2012

Claimant’s Counsel: John Fagan

Employer/Carrier’s Counsel: Robert B. Griffis

Briefly: DEPENDENT DEATH BENEFITS FOR MINOR; SOL – JCC Humphries granted the claim for death benefits and found that the statutory period of limitations does not begin to run against a minor until the appointment of a guardian or other representative. 

Summary: The JCC relied on the Supreme Court decision in Bailey’s Auto Service v. Mitchell, 85 So. 2d 228 (Fla. 1956), where the Court concluded a minor child cannot be bound by the failure of the mother to pursue a remedy that is made available by law for the benefit of the minor.

The JCC also found that the language of F.S. §440.19(5) is a clear expression of the legislative intent that the statutory period of limitations does not begin to run against a minor until the appointment of a guardian or other representative.


Jerry Anderson v. Aramark/ACE USA & Sedgwick CMS

JCC Almeyda; Miami District; Order Date: January 21, 2016 

OJCC Case: 11-000668ERA; D/A: 3/19/2010

Claimant’s Counsel: James D. Payer

Employer/Carrier’s Counsel: David P. Carugati

Briefly: PERMANENT TOTAL DISABILITY – JCC Almeyda awarded permanent total disability benefits and accepted the claimant’s testimony as credible and sincere in his job search and noted the claimant had difficulty ambulating and had to elevate his leg during the proceedings.

Summary: The claimant is 44 years old and has worked in maintenance, as a mechanic foreman, and as a lead man.  The JCC found the claimant sustained a compensable injury to the right ankle and on March 19, 2010, underwent several surgeries regarding a large cell tumor, which was aggravated by the injury and has become recurrent.  Further surgical procedures are necessary due to complications and increased scar tissue.

The JCC rejected as speculative the Employer/Carrier’s vocational expert’s testimony that the claimant has several actual jobs available within a 50-mile radius of his residence.  The JCC accepted the claimant’s testimony that he never contacted those employers due to the likelihood of multiple absences as a result of pain and surgeries.

The JCC found that the claimant’s job search was extensive and covers several years.  The JCC also found that whatever vocational endeavors the claimant makes will be hampered by his inability to work without interruption, as well as recovery time following any future surgical procedures.

The JCC analyzed each of the elements required for a determination of PTD as set forth in Blake v. Merck & Company, 43 So. 3d 882 (Fla 1st DCA 2010), and found that the claimant has permanent work-related restrictions that, while alone are not totally disabling, preclude the claimant from engaging in at least sedentary employment when combined with vocational factors.

Jane Sohn v. City of Bartow/Commercial Risk Management, Inc.

JCC Sojourner; Lakeland District; Order Date: January 19, 2016       

OJCC Case: 15-004555MES; D/A: 2/5/2015

Claimant’s Counsel: E. Taylor Davidson

Employer/Carrier’s Counsel: Warren Sponsler

Briefly: COMPENSABILITY – JCC Sojourner determined the claim was not compensable as the claimant did not offer any evidence that she sustained an injury or accident during the course and scope of her employment and relied solely on the argument that the Carrier had waived its right to deny. The JCC found that the initial payment for care provided by the Employer prior to notice to the Carrier did not act as a waiver to Carrier’s right to deny.

Summary: The JCC found that the Employer/Carrier acted appropriately under the statute and that the Employer sent the claimant for care and provided timely notice to the Carrier of the alleged “accident.”  The Carrier reviewed the notice and within 14 days denied the claim as required.  The JCC found that the Carrier did not invoke the pay and investigatory provision of the statute and that initial payment of care provided by the Employer prior to notice to the Carrier did not act as a waiver to Carrier’s right to deny.