FL Case Law Summaries – 2/10/16
BY:
JCC ORDERS
Felicia Wilson v. City of Lakeland Police Dept./Summit Consulting, Inc.
JCC Sojourner; Lakeland District; Order Date: February 8, 2016
OJCC Case: 14-013734MES & 14-013735MES; D/A: 9/30/2008
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Barbi L. Feldman
Briefly: MAJOR CONTRIBUTING CAUSE; MEDICAL NECESSITY – JCC Sojourner denied the claim for a return physician’s appointment for claimant’s back injury and knee injury and denied a request for increased impairment benefits. The JCC found that the major contributing cause analysis did not apply and that additional care and treatment for the compensable back and knee conditions is no longer medically necessary.
Summary: The claimant filed a Petition for Benefits in two cases seeking return appointments for a compensable back injury and a compensable knee injury. The cases were consolidated. The claimant argued that the burden is on the Employer/Carrier to establish a break in the casual chain between the compensable injury and the claimant’s current need for treatment. The JCC rejected this argument and found that the Employer/Carrier would need to establish a break in the causal chain if the determination turned on an issue involving major contributing cause or whether a subsequent injury occurred. The JCC found that the claimant still had the burden to prove the reasonableness and medical necessity of the requested treatment.
The JCC accepted the opinions of Dr. Band and Dr. Schulak that the claimant does not require additional care and treatment for the compensable back injury as consistent with the MRI. The JCC accepted the testimony of Dr. Rosen and Schulak over that of Dr. Fiore with regard to the claimant’s knee and found that the claimant recovered from her compensable injuries and that joint narrowing was not a compensable condition. Likewise, the JCC rejected Dr. Fiore’s opinion with regard to impairment rating and found that, since Dr. Rosen was the physician who performed the arthroscopic surgeries, Dr. Rosen was in a better position to determine the appropriate impairment rating.
Reinaldo Casas v. Miami Beach Police Dept./Corvel Corporation
JCC Medina-Shore; Miami District; Order Date: February 8, 2016
OJCC Case: 14-027495SMS; D/A: 12/22/2013
Claimant’s Counsel: Jesse L. Casher
Employer/Carrier’s Counsel: Luis F. Estrada
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Medina-Shore denied the claims for compensability of the claimant’s cardiac condition. The JCC found the claimant was not a law enforcement officer as defined by F.S. §943.10(1) at the time of the accident and, therefore, did not benefit from the presumption under F.S. §112.18.
Summary: The claimant worked as a police officer for the Miami Beach Police Department and was terminated prior to accident date, and then rehired following the accident and received full back pay due from the date of termination. The claimant agreed at deposition that he was not appointed by the City of Miami Beach as a police officer at the time of the accident. The JCC rejected the claimant’s position that his termination from Miami Beach Police Department was “wrongful” and that he was later reinstated as a law enforcement officer and, therefore, his full-duty police officer status never changed during the time he suffered a heart attack. The JCC explained that the claimant did not satisfy the requirements of F.S. §943.10 at the time of the heart attack because the claimant was not “vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, criminal, or highway laws of the state.”
Additionally, the JCC found that based on the evidence specific to this case, the claimant failed to prove that stress related to his police duties was a major contributing cause of the heart attack.
William Seniors v. Gold Coast Beverage Distributors, Inc./Sedgwick CMS
JCC Lewis; Ft. Lauderdale District; Order Date: February 8, 2016
OJCC Case: 15-023131DAL; D/A: 8/27/2015
Claimant’s Counsel: David Rosenberg
Employer/Carrier’s Counsel: Robert Hand
Briefly: MOTION TO DISMISS FOR LACK OF SPECIFICITY – JCC Lewis dismissed a portion of the Petition for Benefits seeking surgical intervention for lack of specificity and found that, although the claimant’s Petition sought surgical intervention, the Petition only attached a prescription recommending a consultation.
Summary: The JCC explained that F.S. §440.192(2)(i) provides that the Petition must specifically identify the type or nature of treatment, care, or attendance sought and that, if the employee is under the care of a physician for an injury, a copy of the physician’s request, authorization, or recommendation for treatment, care, or attendance must accompany the Petition.
Here, the prescription attached to the Petition recommended a consultation without specifically recommending the surgery as claimed.
Maria Suarez v. Stewart Enterprises/Travelers Insurance
JCC Weiss; Ft. Myers District; Order Date: February 5, 2016
OJCC Case: 13-014971JAW; D/A: 9/1/2011 & 5/18/2013
Claimant’s Counsel: Martha D. Fornaris
Employer/Carrier’s Counsel: David S. Gold
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Weiss rejected the claimant’s argument that the Employer/Carrier loses the right to deny treatment under the major contributing cause standard unless there is a subsequent intervening accident to break the causal chain.
Summary: The JCC noted that the Employer/Carrier was not denying compensability of the accident, but asserted that the need for treatment is no longer due to the industrial accident. The JCC accepted the opinion of Dr. Rozencwaig, the Expert Medical Advisor, that there was no evidence of an ongoing injury or condition that could be attributed to the compensable injury and that the primary symptoms of the claimant are presently related to ordinary diseases of life. The JCC denied the claim for permanent total disability and a return appointment with the treating orthopedic surgeon.
Kenneth Buzzi v. Miami Dade County Police Dept./Miami Dade County Risk Management
JCC Almeyda; Miami District; Order Date: February 5, 2016
OJCC Case: 10-012000ERA; D/A: 1/5/2000
Claimant’s Counsel: Douglas Glicken
Employer/Carrier’s Counsel: Marlene Klein
Briefly: MEDICAL NECESSITY; HINDRANCE DOCTRINE – JCC Almeyda granted the request for treatment for claimant’s diabetes, but only to the extent and duration necessary to allow treatment for the compensable cardiac conditions.
Summary: The JCC accepted the claimant’s position that the expert testimony explains the negative effect that diabetes has on the claimant’s compensable heart condition. The JCC found that the removal of the hindrance to recovery to the compensable injury is not merely an incidental effect of any such treatment, but necessary for the cardiac treatment.
The JCC accepted the testimony of Dr. Pianko, Board-Certified cardiologist, who was appointed as the Expert Medical Advisor. Dr. Pianko agreed that if the diabetes is not treated it would create a hindrance to effective treatment and recovery of the compensable cardiac condition. The claimant’s cardiac condition was accepted as compensable under the “heart-lung” bill. Dr. Pianko explained that by treating diabetes, the underlying process of arthrosclerosis is prevented from worsening. The JCC cited numerous 1st DCA opinions in support of his determination and analysis of the “hindrance doctrine”.
Gorman Plunk v. Northwest Airlines/Liberty Mutual
JCC Lorenzen; Tampa District; Order Date: February 5, 2016
OJCC Case: 05-034704EHL; D/A: 7/7/2005
Claimant’s Counsel: Joseph Rooth
Employer/Carrier’s Counsel: Raymond Grant
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Lorenzen found the Employer/Carrier failed to meet its burden to establish that it could raise the major contributing cause defense and accepted the Expert Medical Advisor’s opinion that surgery was medically necessary and related to the compensable injury by way of major contributing cause.
Summary: Dr. Vega was appointed as an Expert Medical Advisor to determine whether the low back surgery recommended by the claimant’s treating physician was related to the compensable injury by way of major contributing cause and whether the surgery was medically necessary. Dr. Vega’s opinion was that the claimant’s compensable injury remained a major contributing cause of the need for surgery and that the surgery was medically necessary.
The JCC found the Employer/Carrier failed to meet its burden to establish it could raise the major contributing cause defense, because it failed to prove the claimant had pre-existing spinal degeneration which had progressed to such an extent it severed the causal link between the compensable injury and the current need for treatment.
Additionally, the JCC found that even if the Employer/Carrier did meet its burden to establish that it could raise the major contributing cause defense, the opinion of the Expert Medical Advisor was accepted.
Antonio Palacios v. PEMB Inc./Zenith Insurance Company
JCC Condry; Orlando District; Order Date: February 5, 2016
OJCC Case: 05-002378WJC; D/A: 11/3/2004
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Shari Gegerson Hall
Briefly: MAJOR CONTRIBUTING CAUSE; MEDICAL NECESSITY – JCC Condry denied the request for authorization for an appointment for treatment of the claimant’s back with Dr. Beckner on the grounds that it was not shown to be medically necessary. However, the JCC did not find that the Employer/Carrier carried its burden of proof of demonstrating a break in the causation chain.
Summary: The JCC found that the Record is clear that Dr. Beckner did not believe the claimant required further medical care. The JCC found the claimant failed to carry his burden of proof of showing the medical necessity of the care sought.
The JCC did not conclude that the claimant can no longer claim entitlement to care in this case. The JCC did not find that the Employer/Carrier carried its burden of proof of demonstrating a break in the causation chain, such as a new accident, or show that the requested treatment was due to a condition unrelated to the compensable back injury and, instead, reserved jurisdiction to address remaining issues that are pending on the outstanding Petitions.
Skylar Garry v. L.A. Fitness/Liberty Mutual Insurance
JCC Lazzara; Ft. Lauderdale District; Order Date: February 5, 2016
OJCC Case: 15-012989JJL; D/A: 5/2/2015
Claimant’s Counsel: Paul R. Buechele
Employer/Carrier’s Counsel: Michele R. F. Leissle
Briefly: GOING AND COMING RULE – JCC Lazzara found the going and coming rule did not bar a finding of compensability. The JCC noted that the claimant, while exiting the parking lot of his employment, attempted a right-hand turn and was struck by another vehicle. The JCC found that claimant was leaving the place of employment in order to go into the field to work and would later return to work the same day.
Summary: The JCC accepted the claimant’s testimony over the Employer Representative who testified that the claimant clocked out on the date of accident and told his supervisor that he was not feeling well and that he was leaving for the day. The witness stated the claimant is no longer employed because he called and advised he would be out for 2-3 weeks but did not say he was injured.
The claimant claims he never told the Employer he was leaving the premises to go home sick. Instead, he testified that he was going out to work in the field that day as he routinely did. The JCC accepted the testimony of the claimant to be more credible. The JCC found the fact that the Employer was able to “edit” claimant’s time record to reflect whatever time the Employer thought the claimant should be off the clock was “simply too convenient in this instance.”