FL Case Law Summaries – 1/4/16
By:
1ST DCA ORDERS
Thomas Beck v. MMI Dining Systems/Montverde Academy/Travelers Insurance Company
Appeal of the Order from JCC Condry
DCA Order Date: December 31, 2015
Case: 1D15-2767; D/A: 9/4/2013
Appellant’s Counsel: Charles H. Leo and Richard W. Ervin, III
Appellee’s Counsel: Justin R. Crum and Steven H. Preston
Briefly: CONSTITUTIONALITY OF IMPAIRMENT BENEFITS – The 1st DCA held that claimant’s constitutional challenge to an award of impairment benefits under F.S. §440.15(3)(g)1 fails because the claimant lacked standing to demonstrate an injury to himself which is “real and immediate”.
Summary: The claimant argued that F.S. §440.15(3)(g)1 (2013) violated his right of access to courts, guaranteed him by Article 1, Section 21, of the Florida Constitution. The DCA rejected this argument on the grounds the claimant lacked standing to demonstrate an injury which is both real and immediate, not conjectural or hypothetical, and noted the claimant did not ask the JCC to award impairment benefits.
Additionally, the DCA held that even if the claimant had standing to challenge the statutory provision, his position would not prevail because the Court has previously held that the 2003 elimination of permanent partial disability benefits in favor of impairment benefits withstands rational basis for review, see Stahl v. Hialeah Hospital, 160 So. 3d 519 (Fla. 1st DCA 2015), review granted, 2015 WL 6126944 (Fla. Oct. 13, 2015).
Thyssen Krupp Elevator Corp. & Sedgwick CMS v. Randy Blackmon
Appeal of the Order from JCC Mary D. D’Ambrosio
DCA Order Date: December 31, 2015
Case: 1D15-2515; D/A: 1/31/2009
Appellant’s Counsel: David Evoy
Appellee’s Counsel: Kimberly A. Hill
Briefly: APPELLATE ATTORNEY’S FEES – The 1st DCA granted Appellee’s Motion for Attorney’s Fees under F.S. §440.35(5) and noted that an award of fees is discretionary and entitlement is a case-by-case determination that can be based on circumstances that are shown to justify the expenditure of appellate fees.
Summary: The DCA noted that ordinarily, entitlement to appellate attorney’s fees is not established where an appellant simply files a notice of appeal and soon thereafter seeks dismissal. However, the facts of this case show the Appellant received an extension of time for filing its initial brief, missed the extended deadline, and then told Appellee’s counsel that the brief was almost done and he intended to file it. Even after the court issued a show cause order, a brief never materialized and a voluntary dismissal was eventually filed. Under these circumstances, the DCA held that Appellee’s appellate counsel was justified in undertaking typical appellate tasks that required the expenditure of the attorney time and, therefore, granted Appellee’s motion for attorney’s fees.
JCC ORDERS
David M. Baricko v. Barnett Transportation, Inc./York Risk Services Group
JCC Rosen; St. Petersburg District; Order Date: December 29, 2015
OJCC Case: 14-027898SLR; D/A: 8/15/2013
Claimant’s Counsel: John F. Sharpless
Employer/Carrier’s Counsel: Linda W. Farrell
Briefly: DAUBERT – JCC Rosen sustained the Employer/Carrier’s Daubert objection and found that the opinions of Dr. Cosmo, the claimant’s IME physician, did not satisfy the Daubert criteria as they appear in F.S. §90.702, and that Dr. Cosmo’s opinions are denied as admissible for purposes of establishing the need for the appointment of an Expert Medical Advisor.
Summary: The JCC found that the Employer/Carrier timely raised its Daubert objection and that the basis for the Daubert objection was a lack of evidence presented under direct examination of any studies or literature that had been relied upon by Dr. Cosmo. The JCC found that the Employer/Carrier filed a timely Motion in Limine to strike the opinions of Dr. Cosmo.
The JCC found that Dr. Cosmo did not undertake any testing or use any methods other than interviewing the claimant and reviewing past medical records in formulating his opinions. The JCC found that Dr. Cosmo did not state that he applied any specific principles or methods reliably to the facts of the case. The JCC found Dr. Cosmo’s testimony showed considerable speculation used in formulating opinions on causal relationship as well as maximum medical improvement and/or degree of disability. The JCC found that Dr. Cosmo could not cite any specific medical studies, treatises, or textbooks in support of his opinions.
The JCC explained that the Daubert evidentiary standard was adopted into the Florida Evidence Code in F.S. §90.702 and that the statute now provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the testimony is based upon sufficient facts or data; (b) the testimony is the product of reliable principles and methods, and (c) the witness has applied the principles and methods reliably to the facts of the case.
Christine Quinn v. CP Franchising, LLC Cruise Planners, Inc./Zenith Insurance Company
JCC Lewis; Ft. Lauderdale District; Order Date: December 31, 2015
OJCC Case: 15-013381DAL; D/A: 5/1/2015
Claimant’s Counsel: Mark Dickstein
Employer/Carrier’s Counsel: Katherine Wilson
Briefly: GOING AND COMING RULE – JCC Lewis denied the claim for determination of compensability under the going and coming rule and found that the special hazards exception did not apply where the claimant tripped and fell on an uneven or irregular surface in an off-premises parking lot which was open to and used by the general public.
Summary: The JCC denied compensability of the claimant’s slip and fall in the public parking lot based upon the going and coming rule and specifically denied the claimant’s contention that the “special hazard” exception to the going and coming rule applied.
The JCC noted that this parking lot was open to the public, not part of the Employer’s lease-held premises, and that there was no evidence that the Employer owned, maintained, or controlled the parking lot where the claimant fell.
The JCC also noted that the claimant alleged the accident occurred when the claimant had just finished parking her car and exited the vehicle to walk to the entry of the building to commence her work day and stepped onto an uneven area or crack between the edge of the asphalt parking lot surface and a concrete curb. According to the claimant, the uneven separation or groove caused her to fall resulting in a fracture to her left shoulder.
After reviewing the claimant’s photographs of the accident site, the JCC found that the claimant did not establish the presence of a special hazard. Although the photographs depict the groove or separation between the asphalt surface and the concrete curb, the groove appears to be present throughout the parking lot wherever the concrete and asphalt meet. The JCC found there was nothing unusual or out of the ordinary with respect to the parking lot surface where the claimant fell and that there were no potholes, construction lines, piles of debris or hazards. The JCC found that the claimant did not establish an inherently dangerous or hazardous condition or defect as to constitute a special hazard.
Elvys Sosa v. Employer/Carrier #1, Archer Exteriors/Zurich American Insurance, and Employer #2, GP Roofing and Construction USA
JCC Holley; Jacksonville District; Order Date: December 31, 2015
OJCC Case: 14-018066WRH; D/A: 10/11/2013
Claimant’s Counsel: Michael O’Rourke
Employer/Carrier #1’s Counsel: Peter Parzygnat
Employer #2: Unrepresented
Briefly: STATUTORY EMPLOYER – JCC Holley awarded the claim for compensability against both Employer/Carrier #1 and Employer #2.
Summary: The JCC found the totality of evidence supported the witnesses who testified on behalf of the claimant. The JCC found that the claimant was injured when he fell off a ladder, fracturing his spine on a GP Roofing and Construction worksite.
The JCC found the parties entered into a stipulation that GP Roofing and Construction had a contract to construct the roof on a home and that they subcontracted the labor portion of the job to Employer/Carrier #1, Archer Exteriors/Zurich. The JCC found that GP Roofing waived the defense that the claimant was not an employee of GP Roofing by failing to appear for the final hearing and failing to respond to an Order to Show Cause.
Employer/Carrier #1 asserted that, despite the striking of GP Roofing’s defenses, they still have the right to assert their own defenses to the employer/employee relationship between the claimant and GP Roofing. The JCC rejected this argument and found, alternatively, that the claimant is either an employee or subcontractor of GP Roofing by which Employer/Carrier #1 would be responsible for the claimant’s compensable accident as the statutory employer under F.S. 440.10.