FL Case Law Summaries – 12/22/15
By:
1ST DCA ORDERS
Beverly Mathis v. Broward County School Board and the School Board of Broward County
Appeal of the Order from JCC Iliana Forte
DCA Order Date: December 18, 2015
Case: 1D15-2342; D/A: 3/2/2015
Appellant’s Counsel: Kimberly Hill
Appellee’s Counsel: Kimberly J. Fernandes
Briefly: ADVANCE – The 1st DCA held that JCC Forte erred when she concluded the claimant did not show a substantial reduction in wages or the requisite nexus between the need for the advance and the work place injury.
Summary: The JCC denied the advance and reasoned the claimant failed to show a nexus between the need for the advance and the work place injury because the claimant was already behind in her bills when she made the request for an advance eight days after she was last paid compensation; i.e., the time frame was too short to find a nexus. However, the 1st DCA held that because claimant’s indebtedness could only grow worse due to her lost wages, the requisite nexus existed between the need for an advance and a work place injury.
The DCA noted that the claimant was not obliged to show ultimate compensability at the time of the Motion for Advance and, in fact, the Employer/Carrier had subsequently denied the claim when the authorized treating physician opined the condition was not work-related.
JCC ORDERS
Barbara Ann Buckner v. Coach, Inc./Sentry Casualty Company
JCC Holley; Jacksonville District; Order Date: December 18, 2015
OJCC Case: 09-024524WRH, 09-024523WRH; D/A: 1/12/2009, 7/22/2008
Claimant’s Counsel: George Rotchford
Employer/Carrier’s Counsel: Christine Tomasello
Briefly: ATTORNEY’S FEES – JCC Holley determined that claimant’s counsel was entitled to an attorney’s fee of $300 per hour based upon the testimony of claimant’s counsel for these date of accidents of 2008 and 2009.
Summary: The JCC found the fact that claimant’s counsel is not board-certified would have been a significant or negative factor for the attorney fee hourly rate had claimant’s counsel requested more than $300 an hour. Based on claimant’s counsel’s 35 years of workers’ compensation experience, the hourly rate of $300 was determined reasonable under these circumstances.
The JCC rejected testimony of counsel for the Employer/Carrier who believed that $250 an hour should be appropriate when considering the totality of factors.
Edgardo Torres v. Palm Beach County Sheriff’s Office/USIS
JCC D’Ambrosio; West Palm Beach District; Order Date: December 18, 2015
OJCC Case: 12-025043MAD; D/A: 2/10/2011
Claimant’s Counsel: Kenneth Ehrlich
Employer/Carrier’s Counsel: Christine Tomasello
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC D’Ambrosio awarded permanent total disability benefits and found the claimant met his burden of proof under the third scenario described in Blake v. Merck & Company, 43 So. 3d 882 (Fla. 1st DCA 2010), that the claimant sustained a permanent work-related physical restriction that, while not alone totally disabling, precludes the claimant from engaging in at least sedentary employment when combined with vocational factors.
Summary: The JCC found the claimant has shown that his physical restrictions, combined with vocational factors, prevent him from engaging in at least sedentary employment within a fifty-mile radius of his residence. The JCC accepted the vocational evidence of Jerry Edato that the claimant falls within the less than sedentary classification when taking into consideration the use of a cane, the restriction of occasional reaching which causes pain, the inability to sit or stand one hour and the ability to lift less than ten pounds. The JCC noted this testimony is consistent with the opinion of Dr. Epstein, the Expert Medical Advisor, a physical medicine and rehabilitation expert, who testified the claimant’s restrictions were sedentary, not light.
Ingrid R. Hunter v. Elite Show Services, Inc./Travelers Insurance Company
JCC Almeyda; Miami District; Order Date: December 18, 2015
OJCC Case: 15-014969ERA; D/A: 8/29/2013
Claimant’s Counsel: Richard Dolan
Employer/Carrier’s Counsel: Patricia Perez
Briefly: MEDICAL TREATMENT– JCC Almeyda awarded authorization of an evaluation by a neurologist and found that the Carrier waived the defense of “medical necessity” under F.S. §440.13(3)(i) when more than ten days elapsed following the referral from an authorized health provider before the Carrier authorized treatment which was, still, not in compliance with the referral.
Summary: The JCC found that the Employer/Carrier accepted and authorized treatment at Mount Sinai Hospital which referred the claimant to a neurologist upon discharge. The JCC specifically found that the medical reports from Mount Sinai were in the possession of the Employer/Carrier on July 27, 2015, but that the first authorization of any medical care came on October 5, 2015, when the Employer/Carrier offered to authorize any one of several clinics without showing that any of the clinics included a neurologist.
The JCC found there is no medical evidence to refute the need for this treatment and ordered that the Employer/Carrier shall immediately authorize an evaluation by a neurologist and thereafter authorize treatment if related to the subject injury.