FL Case Law Summaries – 12/23/15
By:
JCC ORDERS
Richard Knighton v. R&B Ventures, Inc./Employers Preferred Insurance Company
JCC Anderson; Daytona Beach District; Order Date: December 21, 2015
OJCC Case: 15-022616WWA; D/A: 8/28/2015
Claimant’s Counsel: David Aaron-Holt Brown
Employer/Carrier’s Counsel: Lori Pearson-Wise
Briefly: MOTION TO ENFORCE – JCC Anderson granted the Employer/Carrier’s Motion to Enforce Settlement and found the claimant gave his attorney clear and unequivocal authority to settle his case.
Summary: The Employer/Carrier filed a Motion to Enforce Settlement and alleged an agreement was reached to settle the case for $5,000, inclusive of fees and costs. As a witness, the Employer/Carrier called claimant’s former counsel, Mr. Clelland, who testified claimant told him he would accept the settlement offer and that he called the adjuster and agreed to the settlement. The claimant testified that Mr. Clelland told him that he had no choice but to accept the settlement offer and that he then told Mr. Clelland he would take the settlement, but wanted to sleep on it. The claimant testified that the next morning he called to inform Mr. Clelland he did not want to go through with the settlement.
The JCC accepted the testimony of Mr. Clelland as more consistent and believable than the claimant’s testimony. The JCC found Mr. Clelland would not have communicated the claimant’s acceptance of the settlement offer to the adjuster if the claimant had not given him clear and unequivocal authority to do so.
Bryan Hartman v. Robert Reiche, Inc./Liberty Mutual Insurance
JCC Pitts; Orlando District; Order Date: December 21, 2015
OJCC Case: 15-022020NPP; D/A: 8/3/1987
Claimant’s Counsel: Marshall Adler
Employer/Carrier’s Counsel: J. Christopher Norris
Briefly: SANCTIONS – JCC Pitts awarded sanctions against the Employer/Carrier in the amount of $500 as an attorney’s fee to be paid to claimant’s counsel for Employer/Carrier’s failure to attend state mediation.
Summary: The JCC found the Employer/Carrier failed to present sufficient evidence to establish good cause for its failure to attend state mediation. The JCC found that a monetary sanction is appropriate to deter similar action in the future and awarded $500 as an attorney’s fee to be paid to claimant’s counsel for the Employer/Carrier’s non-willful but neglectful failure to attend mediation.
Maribel Martinez v. The Terrace of Daytona Beach, LLC/Bridgefield Employers Insurance
JCC Medina-Shore; Miami District; Order Date: December 22, 2015
OJCC Case: 14-027721SMS; D/A: 10/6/2012
Claimant’s Counsel: Victor Armstrong and Raul De La Heria
Employer/Carrier’s Counsel: Omar Perez
Briefly: MISREPRESENTATION DEFENSE – JCC Medina-Shore found the claimant made false, fraudulent, or misleading statements in her deposition, to her physician, and at the final hearing with the intent to obtain workers’ compensation benefits and thereby forfeited all her rights and entitlement to workers’ compensation benefits for violation of F.S. §440.09 and §440.105.
Summary: The JCC found the claimant misrepresented in her deposition the extent of her prior injuries, and specifically misrepresented that she did not experience low back pain or have low back complaints due to a prior slip and fall accident in 2008.
The JCC explained that if she were to accept the claimant’s testimony, it would mean that not only did the medical clinic fabricate or make errors regarding claimant’s prior lumbar complaints and treatment, but Fire Rescue and claimant’s own attorney, Mr. Rubenstein, would all be in similar conspiracy or similarly mistaken. The JCC found claimant’s testimony to be unconvincing.
Fred W. Denecke v. Fred Denecke Enterprises, Inc./Auto Owners
JCC Roesch; Panama City District; Order Date: December 22, 2015
OJCC Case: 05-006777LAR, 11-001821LAR; D/A: 7/6/2003, 4/27/2006
Claimant’s Counsel: John Moneyham
Employer/Carrier’s Counsel: Matt Jones
Briefly: PSYCHOLOGICAL COUNSELING; PHYSICAL THERAPY – JCC Roesch granted the claims for authorization of an additional 15 visits of psychological counseling and for physical therapy, and rejected the Employer/Carrier’s defense that there was no medical evidence to support the “medical necessity” of the claims.
Summary: Regarding psychological treatment, it was the Employer/Carrier’s position that they no longer believed the authorized psychologist was providing beneficial and medically necessary treatment based upon the psychological notes which became repetitive and did not appear to indicate any further progress. The JCC rejected this argument and found the Employer/Carrier failed to present any evidence to support their position that there is no medical necessity of continued psychological treatment.
Regarding physical therapy, the JCC found the Employer/Carrier waived any right it might have had to assert a medical necessity defense because it did not respond to the request for authorization of physical therapy within ten days pursuant to F.S. §440.13(3)(i).
Additionally, the JCC found that the claimant’s orthopedic surgeon maintained his recommendation that the claimant continue to receive physical therapy as a result of the work-place accidents, and suggested that physical therapy once or twice a week was reasonable and should continue in the foreseeable future. The doctor opined that physical therapy diminishes the claimant’s pain so that he takes less medication and is able to perform increased physical activities.
Enrique Granados Hernandez v. Star S Farm & Produce, LLC
JCC Sturgis; Ft. Myers District; Order Date: December 22, 2015
OJCC Case: 15-002857KAS; D/A: 8/10/2014
Claimant’s Counsel: Victor Arias
Employer/Carrier’s Counsel: David McElrath
Briefly: COMPENSABILITY; NO ACCIDENT – JCC Sturgis found that the claimant did not establish a work-related injury and found the claimant did not meet his burden of establishing he was injured while working for the Employer on August 10, 2014, as specifically claimed in the Petition for Benefits.
Summary: The JCC found the evidence did not support any finding of a date of accident and definitely did not support finding a work accident resulting in injury on the date alleged by the claimant in his Petition and sworn testimony. The JCC noted that the medical records indicate the claimant complained on September 22, 2014, of arm pain of several months duration which did not correspond to the date of accident the claimant alleged. The JCC also found the claimant was evasive in responding to very simple questions at the final hearing and that the claimant may have mistaken the date of his alleged injury despite vehemently maintaining that it was August 10, 2014.
Luis Conde v. Publix Super Markets, Inc./Publix Risk Management
JCC Lewis; Ft. Lauderdale District; Order Date: December 22, 2015
OJCC Case: 98-024355DAL; D/A: 10/8/1998
Claimant’s Counsel: Richard Chait
Employer/Carrier’s Counsel: David Rigell
Briefly: ATTORNEY’S FEES – JCC Lewis awarded entitlement to attorney’s fees and rejected the Employer/Carrier’s argument that claimant’s counsel did not secure additional benefits for the claimant when claimant’s initial accident was administrated by the Employer/Carrier under the workers’ compensation laws of the State of Georgia.
Summary: The JCC rejected the Employer/Carrier’s argument that no benefits whatsoever were secured by claimant’s counsel, and noted that although claimant’s accident was administered under workers’ compensation law in the State of Georgia, the Employer/Carrier did deny the workers’ compensation claim on the basis that the claimant sustained a subsequent, intervening accident which broke the chain of causation. The JCC found the claimant prevailed on this issue and that the Employer/Carrier unsuccessfully controverted the issue of compensability.
Additionally, the JCC found that, although the Employer/Carrier contended no fees are due because claimant’s counsel did not secure any benefit, the Employer/Carrier did deny benefits were payable under Florida Workers’ Compensation Law and by doing so placed the payment of continued benefits at risk. The JCC found that Florida Workers’ Compensation Benefits would not have been secured without the involvement or intervention of claimant’s counsel.