FL Case Law Summaries – 12/7/15
BY:
JCC ORDERS
Guadalupe E. Urquiza v. Hillsborough County School Board/Broadspire
JCC Massey; Tampa District; Order Date: December 2, 2015
OJCC Case: 14-023035MAM; D/A: 10/7/2013
Claimant’s Counsel: Manuel Franco
Employer/Carrier’s Counsel: Debra Metzler
Briefly: TEMPORARY PARTIAL DISABILITY; PSYCHIATRIC TREATMENT – JCC Massey denied the claim for temporary partial disability benefits and found the claimant did not carry her burden of proving the required casual connection between the injury and her lost wages, either through direct means or alternative means of a job search. The JCC also awarded a psychiatric evaluation in order to determine whether or not the claimant’s depression and anxiety are work-related.
Summary: The JCC found there was no evidence the claimant looked for work or performed a job search since her voluntary resignation from employment. The claimant acknowledged she did not perform a job search, but argued that she is not required to do so. The JCC agreed that a job search is not required by statute in all temporary partial disability cases, but stated that the claimant’s argument overlooked the relevance of a job search in the context of an employee who has established a post-injury earning capacity of returning to work within her restrictions, but who later becomes unemployed for reasons unrelated to the injury. Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795 (Fla 1st DCA 2010).
The JCC awarded a psychiatric evaluation based upon the testimony of the claimant’s treating orthopedist who believed that a psychiatric evaluation was medically necessary to see if her symptoms are work-related.
James Randall v. McLane Company, Inc./ESIS WC Claims
JCC Pitts; Orlando District; Order Date: December 2, 2015
OJCC Case: 15-024255NPP; D/A: 7/20/2015
Claimant’s Counsel: David E. Mallen
Employer/Carrier’s Counsel: Philip R. Augustine
Briefly: ADVANCE – JCC Pitts denied the motion for a $2,000 advance and found the claimant failed to establish the cost of a proposed IME for purposes of establishing the required nexus between the need for the advance and the industrial injury.
Summary: The JCC acknowledged that an advance may be awardable to secure an IME if the required evidence is present to establish a nexus between the need for money and the industrial accident.
The JCC noted the only competent evidence that was presented during the hearing was that the claimant cannot afford to pay the assumed costs of the IME projected by the claimant’s attorney during his hypothetical question. The JCC found the evidence lacked reasonable anticipated costs for the IME.
Santos Saul Rivera v. Employer #1 Riutel Florida, Inc./Normandy Insurance Company and Employer #2 Refri Air, Inc. and Employer #3 Pyramid C. Services, Inc.
JCC Hill; Miami District; Order Date: December 2, 2015
OJCC Case: 14-026257CMH; D/A: 10/29/2014
Claimant’s Counsel: Monica De Feria Cooper
Counsel for Employer #1: Kip O. Lassner
Counsel for Employer #2: Toni Lynne Villaverde
Counsel for Employer #3: Francisco Touron
Briefly: EMPLOYER/EMPLOYEE RELATIONSHIP – JCC Hill determined that an employer/employee relationship existed between the claimant and the subcontractor, Refri Air, and that a statutory employer/employee relationship existed between the claimant and Pyramid C. Services. The JCC discharged Employer/Carrier Riutel Florida/Normandy Insurance as party defendants.
Summary: The JCC found that the Employers Refri Air and Pyramid were each engaged in the construction industry involving substantial improvement of the Riutel Hotel structure on Miami Beach. The JCC found that the claimant was under active direction and control of Refri Air for the work performed at the Riutel project, and that the claimant did not satisfy the criteria to classify him as an independent contractor or to have exempted himself from workers’ compensation coverage. The JCC found that Refri Air participated in the Riutel Hotel project as a subcontractor under Pyramid’s contract, which included air conditioner installation and repair services. The JCC found that Refri Air was required by Chapter 440 to secure or maintain workers’ compensation coverage for its employees, but that Refri Air failed to secure workers’ compensation coverage in this instance. The JCC, therefore, found that Pyramid is the statutory employer as it sublet part of its contractual duty to Refri Air, an uninsured subcontractor.
The JCC found that Riutel, as the owner, was not responsible for workers’ compensation coverage and that there was no evidence adduced by the claimant to support the assertion that Riutel must be designated as the statutory employer of the claimant, or that there was an employer/employee relationship of any description between Riutel and the claimant.
Kenneth Watts v. Ryder Integrated Logistics/Ryder Services
JCC Pitts; Orlando District; Order Date: December 2, 2015
OJCC Case: 15-017627NPP; D/A: 12/2/2014
Claimant’s Counsel: Michael P. Clelland
Employer/Carrier’s Counsel: Theodore N. Goldstein
Briefly: SANCTIONS – JCC Pitts ordered that the Employer/Carrier pay to claimant’s counsel $500 as a reasonable sanction for failure to attend the mediation conference.
Summary: The JCC issued an order to show cause to the Employer/Carrier to show good cause for the adjuster’s failure to attend state mediation conference. At the hearing, claimant’s counsel described the frustration which he and his client experienced during the claim because of the adjuster’s lack of communication. In the affidavit filed by the adjuster, she asserted “excusable neglect because of the confusing nature of the pleadings, which included a Notice of Voluntary Dismissal Without Prejudice regarding various Petitions for Benefits.” The JCC found the Employer/Carrier failed to present sufficient evidence to establish good cause for its failure to attend the mediation. The JCC found that had the adjuster reviewed the claimant’s Notice of Voluntary Dismissal carefully, she would have noted that the scheduled pending events, including the state mediation, remained outstanding. The JCC awarded a sanction equal to two hours of attorney time at $250 per hour.
Daniel Remington v. Pompano Automotive Associates, LLC/FFVA Mutual Insurance Company
JCC Lewis; Ft. Lauderdale District; Order Date: December 2, 2015
OJCC Case: 15-025726DAL; D/A: 10/30/2015
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Daniel Simpson
Briefly: MOTION TO RELEASE BLOOD AND URINE SAMPLES TO LABORATORY – JCC Lewis granted the Motion for Court Order to release blood and urine samples to a qualified laboratory.
Summary: The JCC found that since the claimant failed to appear for a hearing, the Employer/Carrier’s Motion for Court Order to release blood and urine samples to a qualified laboratory should be granted. The JCC explained that he has jurisdiction over this matter even though no Petition for Benefits was filed.
The JCC cited the case of Canovas v. Sugar Supply, Inc., 921 So. 2d 26 (Fla. 1st DCA 2006) where the JCC entered an order compelling the claimant to sign a Social Security release form and the 1st DCA held that pursuant to F.S. §440.33(1), the JCC has jurisdiction to do all things conformable to law which may be necessary to enable the JCC to effectively discharge the duties of his or her office. The JCC also noted that Rule 60Q-6.114(1) provides that any party may commence with discovery methods authorized by statute prior to or after invoking the jurisdiction of the judge.