FL Case Law Summaries – 12/9/15
BY:
JCC ORDERS
Judith Slinker v. Gadsden County School Board/Florida League of Cities/Workers’ Compensation Claims Department
JCC Lazzara; Tallahassee District; Order Date: December 7, 2015
OJCC Case: 15-002447JJL; D/A: 3/5/2014
Claimant’s Counsel: William A. Kempner
Employer/Carrier’s Counsel: R. Stephen Coonrod
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Lazzara ordered the Employer/Carrier to authorize various medical evaluations recommended by Dr. Christopher Rumana. The JCC found that, although there is no specific evidence that the claimant’s complaints of current dizziness and headaches are related to her work accident rather than her pre-existing condition for which she has received past medical care, the evaluation should be authorized to determine the cause of the claimant’s dizziness and headaches.
Summary: The JCC cited the case of Harman v. Gadsden Correctional Facility, 46 So. 3d 1140 (Fla. 1st DCA 2010), and stated that the test here is whether the recommended evaluations are medically necessary.
The JCC cautioned that the finding should not be construed to mean that the Employer/Carrier cannot later contest whether the need for treatment, if any, is related to the claimant’s most recent fall or her pre-existing condition.
Lourdes Gonzalez v. Publix Super Markets/Publix Risk Management
JCC Basquill; West Palm Beach District; Order Date: December 7, 2015
OJCC Case: 12-006964TMB; D/A: 9/13/2011
Claimant’s Counsel: Salvatore Sicuso
Employer/Carrier’s Counsel: Sheryl D. Brinkley
Briefly: ATTORNEY’S FEES – JCC Basquill denied the claim for attorney’s fees finding that the Employer/Carrier responded to the Petition for Benefits within 30 days and rejected the claimant’s argument that an attorney fee entitlement attaches because of the carrier’s failure to respond to the Petition within 14 days under F.S. §440.192(8).
Summary: The JCC found that the Employer/Carrier authorized the requested medical appointment within 30 days of receipt of the Petition for Benefits and the claimant was notified of the date of the appointment.
The JCC rejected the claimant’s argument that the carrier “constructively denied” the claim because of the carrier’s failure to respond to the Petition within 14 days. The JCC found this argument ignores the language of F.S. §440.34(3) which states that “attorney’s fees shall not attach under this Subsection until thirty days after the date the carrier receives a Petition.”
Laurie Willis v. Brevard County Public Schools/Sedgwick CMS
JCC Dietz; Sebastian-Melbourne District; Order Date: December 8, 2015
OJCC Case: 15-011663RLD; D/A: 10/22/2014
Claimant’s Counsel: Mark A. Nation
Employer/Carrier’s Counsel: H. A. Rigdon, Jr.
Briefly: NOTICE OF INJURY – JCC Dietz found the Employer/Carrier failed to carry their burden of proof that the claimant failed to timely provide notice of injury to the Employer and accepted evidence that the claimant did, in fact, provide notice of an injury in compliance with the statute within thirty days of the accident.
Summary: The Employer argued that while the supervisor may have had notice that the claimant sustained an injury, the claimant never filed a workers’ compensation notice of injury or claimed that it was a work-related accident until the doctor asked for the workers’ compensation paperwork months following the date of accident. The JCC rejected this argument and found that the claimant provided credible evidence consistent with F. S. §440.09(1) that she suffered an accident by way of a sudden and unexpected result from her work activities, which occurred in the course of her employment and that she reported the accident on the date that it occurred to a person she had been advised must be notified.
The JCC found that the claimant should not be penalized because the employer did not follow the protocol related to workers’ compensation injuries after learning of an injury, even if the supervisor does not draw the conclusion that the injury was work-related.
Katherine A. Wilt v. Polk County Board of County Commissioners
JCC Sojourner; Lakeland District; Order Date: December 8, 2015
OJCC Case: 15-001020MES; D/A: 8/4/2014
Claimant’s Counsel: Joshua Nelson
Employer/Carrier’s Counsel: Thomas Vecchio
Briefly: ONE-TIME CHANGE – JCC Sojourner denied the request for a one-time change to Dr. Amann and found the claimant personally wrote a three-page, single-spaced letter to the carrier where at the end of a long paragraph she stated she is requesting a one-time change in physician. The JCC found this is exactly the type of tactic that the 1st DCA previously rejected.
Summary: The JCC found that burying the request for a one-time change in a three-page, single-spaced letter is the type of tactic that the 1st DCA rejected in Gonzalez v. Quinco Electrical, Inc., 171 So. 2d 153 (Fla 1st DCA 2015). The JCC rejected claimant’s counsel’s argument that because the claimant wrote the letter herself without the help of counsel, the reasoning in Gonzalez does not apply. The JCC noted that the end result of this tactic was a delay in the very benefit the claimant testified that she needed and resulted in unnecessary litigation.
Luis Gonzalez v. Sports Authority/Broadspire
JCC Hill; Gainesville District; Order Date: December 8, 2015
OJCC Case: 13-017435MRH; D/A: 12/14/2012
Claimant’s Counsel: Lance Avera
Employer/Carrier’s Counsel: Gladys Coia
Briefly: MEDICAL TREATMENT – JCC Hill granted the claim for evaluation and treatment with a pain management physician, medical tests, and medical apparatus and accepted the opinion of Dr. Fox, claimant’s authorized treating neurologist.
Summary: The JCC accepted Dr. Fox’s testimony that the claimant required a wheeled, seated walker, an AFO evaluation, MRI of the lumbar spine, and treatment with a pain management physician. The JCC rejected the opinions of Dr. Rubin on the grounds that the doctor did not have any medical records and acknowledged his chart as it related to the claimant’s medical testimony was incomplete.