FL Case Law Summaries – 12/8/15
By:
JCC ORDERS
Kenneth Martin v. City of Jacksonville/City of Jacksonville Risk Management
JCC Holley; Jacksonville District; Order Date: December 3, 2015
OJCC Case: 13-019389WRH; D/A: 8/14/2007
Claimant’s Counsel: John Rahaim
Employer/Carrier’s Counsel: Monett Brewer
Briefly: FAILURE TO PROSECUTE –JCC Holley denied the Motion to Dismiss for Lack of Prosecution and found that the claimant presented good cause for failure to file a Verified Fee Petition or generate any record activity in the 22-month period of time at issue. The JCC found good cause existed due to claimant’s counsel’s inability to calculate the amount of benefits owed as benefits are still flowing.
Summary: Claimant’s counsel argued that he was unable to calculate the amount of his attorney’s fee as time continues to run on any benefits being paid out to the claimant. The JCC accepted this argument and also found the uncertainty as to the ultimate determination by the Florida Supreme Court as to how to calculate attorney’s fees constitutes good cause not to dismiss the claim for failure to prosecute notwithstanding 22 months of non-record activity.
Even though the JCC accepted the claimant’s inability to calculate the value of the attorney’s fee, the JCC ordered the claimant to file a Verified Fee Petition within thirty days.
Venecia Floyd-Cherasia v. City of Hialeah/Sedgwick CMS
JCC Kerr; Miami District; Order Date: December 4, 2015
OJCC Case: 15-009163MGK; D/A: 3/19/2015
Claimant’s Counsel: Steven B. Wilson
Employer/Carrier’s Counsel: Karen M. Gilmartin
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Kerr denied compensability of the claimant’s cardiac condition and hypertension and found the claimant provided incomplete and inaccurate information on the pre-employment records and that the claimant did have a pre-employment history of uncontrolled hypertension.
Summary: The JCC accepted the medical evidence contained in the hospital records and medical reports that the claimant had a medical history of hypertension pre-existing her employment with the City of Hialeah. The JCC rejected the claimant’s testimony that she forgot about her prior hospital admission for hypertension as not credible or accurate.
The JCC accepted Dr. Perloff’s testimony that the claimant departed in a material fashion from the prescribed course of treatment for her hypertension. Further, the JCC found the Employer/Carrier rebutted the presumption of compensability of the claimant’s hypertension with clear and convincing evidence.
Although there is medical evidence that the claimant’s hypertension pre-dated her employment with the City of Hialeah, the JCC concluded that the claimant does not suffer from heart disease.
Rosalba Trejo v. First Watch Restaurants, Inc./PMA Insurance Group
JCC Punancy; West Palm Beach District; Order Date: December 4, 2015
OJCC Case: 14-013426SHP; D/A: 12/2/2013
Claimant’s Counsel: William Haro
Employer/Carrier’s Counsel: Christine M. Tomasello
Briefly: MEDICAL TREATMENT – JCC Punancy granted the claim for extracorporeal shock wave therapy and accepted the testimony of Dr. Hodor that the extracorporeal therapy has been used over the years for musculoskeletal disorders and has been used in the medical community for the elbow pain/symptoms the claimant has.
Summary: Dr. Hodor testified that he is knowledgeable in extracorporeal shock wave therapy (ESWT) having personally researched it and that there are peer-accepted medical studies/articles regarding the efficacy of the therapy.
The JCC found Dr. Hodor’s testimony withstands a Daubert challenge as it is based on sufficient facts and data, takes into account records and principles used by many physicians over the years as reflected in medical literature, and that Dr. Hodor applied those principles and methods reliably to the facts of this case.
The JCC found that the ESWT is reasonable and medically necessary for the claimant’s condition.
Annie Smith v. Tandem Healthcare of West Altamonte/Zurich American Insurance Company
JCC Condry; Orlando District; Order Date: December 2, 2015
OJCC Case: 06-019039WJC; D/A: 4/18/2004
Claimant’s Counsel: Jeffrey J. Bordulis
Employer/Carrier’s Counsel: Morgan A. Indek and Michael Casto
Briefly: MEDICAL TREATMENT – JCC Condry ordered the Employer/Carrier to authorize another physician for treatment within the geographical limitations of the claimant and found that, due to a delay in treatment, the physician previously authorized by the Employer/Carrier to treat the claimant was “defacto” an independent medical examiner and unable to render treatment without party consent pursuant to the statute.
Summary: The claimant argued that the Employer/Carrier did not timely furnish medical care and noted the claimant first made a request for a new doctor in November of 2014 when she moved from the Vero Beach area to Deltona Beach, Florida. The JCC found the Employer/Carrier did not respond to the request for a new doctor until April 2015 when Dr. Steven Weber was authorized to treat the claimant.
A letter addressed to Dr. Weber authorized the doctor for evaluation and treatment of the claimant’s lumbar degenerative disk disease. However, the claimant, through her attorney, wrote a letter requesting authorization of another physician more closely located to her home and stated that, after attending the initial appointment with Dr. Weber, the doctor advised the claimant that he was authorized to evaluate her condition only and could not give her a prescription or a referral to pain management, and would not set her up for a follow-up appointment. The Employer/Carrier responded by setting up a new appointment for the claimant to see Dr. Weber in November 2015 and clarified that the medication recommendations of Dr. Weber would be authorized.
The JCC found that it is clear the claimant requires ongoing medical care. The JCC also found that the claimant’s testimony that Dr. Weber told her he was not a treating doctor and was only authorized to perform an evaluation was not contradicted or rebutted. The JCC found the practical effect was that the claimant did not receive authorized treatment for almost a year and that when the attempted appointment with Dr. Weber was set for June 2015, not due to any fault of the carrier or claimant, Dr. Weber essentially performed an independent medical evaluation. As such, the JCC found Dr. Weber is unable to render treatment without party consent pursuant to the F.S. § 440.13(5).
The JCC found that and the Employer/Carrier shall select another physician within the geographical limitations of the claimant for treatment and noted there was no medical evidence that the claimant could not travel more than 27 miles for medical treatment.