FL Case Law Summaries – 2/12/16
BY:
1ST DCA ORDERS
MBM Corporation/Sedgwick CMS, Inc. v. Archer Wilson
Appeal of the Order from JCC Neal P. Pitts
DCA Order Date: February 10, 2016
Case: 1D15-2398; D/A: 10/16/2010
Appellant’s Counsel: Lamar D. Oxford
Appellee’s Counsel: Bill McCabe & Thomas A. Vaughn
Briefly: DIAGNOSTIC EVALUATION – The 1st DCA reversed JCC Pitts and held that the claimant failed to meet his burden of proof for entitlement to an investigation of the causal connection between voiced complaints and a previously accepted compensable condition where there was no allegation or argument that the previously accepted compensable condition may be the cause of the need for a diagnostic evaluation.
Summary: The Employer/Carrier accepted as compensable a shoulder injury as a result of the claimant’s fall at work. +++The Employer/Carrier accepted claimant’s shoulder injury resulting from a fall at work as compensable. Four years later, the claimant filed a Petition for Benefits requesting a referral to a physician for evaluation of head and neck pain and relied on the testimony of the treating physician who opined it would be reasonable, assuming the claimant’s neck had been symptomatic since the date of accident, for the claimant to have an evaluation to obtain a diagnosis for a neck condition.
The DCA noted that the treating physician was not questioned as to whether there was any possible causal relationship between the claimant’s compensable shoulder injury and the cervical spine complaints. There was no allegation or argument that the compensable shoulder injury may be the cause of the head and neck complaints, rather, the claimant sought a diagnostic evaluation to determine whether a potential neck or head condition was related to the compensable shoulder injury.
The DCA held that the JCC erred by conflating claimant’s burden to prove entitlement to investigation of the causal connection between voiced complaints and the previously accepted compensable condition, with claimant’s burden to prove the causal relationship between a condition and the workplace accident in the first instance. The DCA held that the JCC’s findings that the claimant had voiced complaints since the date of accident, standing alone, did not meet the requirements of F.S. §440.09(1) that claimant prove his injury and its occupational cause within a reasonable degree of medical certainty based upon objective relative medical findings.
JCC ORDERS
Luis Rodriguez v. YRC, Inc./Sedgwick CMS, Inc.
JCC Massey; Tampa District; Order Date: February 10, 2016
OJCC Case: 13-011811MAM; D/A: 4/22/2013
Claimant’s Counsel: Grethel San Miguel
Employer/Carrier’s Counsel: Scott Miller
Briefly: MAJOR CONTRIBUTING CAUSE; MEDICAL NECESSITY – JCC Massey denied the claims for physical therapy, lumbar MRI, and a back brace and relied upon the opinion of the Expert Medical Advisor, Dr. Hyde, that the specific benefits sought were not medically necessary. The JCC also found that Dr. Hyde’s opinion that the pre-existing degenerative condition is now the major contributing cause of the claimant’s need for treatment was not competent substantial evidence of the required “break in the causal chain”, or change in status.
Summary: The JCC found that Dr. Hyde, the Expert Medical Advisor, believed the findings at L4-L5 and L5-S1 were due to age-appropriate degeneration, separate from and independent of the compensable injury. However, the JCC noted that the L4-L5 and L5-S1 had already been accepted as part of the compensable injury, and that Dr. Hyde was not made aware of that. As such, the JCC found the Employer/Carrier was not legally entitled to challenge the major contributing cause of the need for treatment based on its acceptance of compensability. The JCC rejected Dr. Hyde’s opinion on major contributing cause as contrary to a legal posture of the case.
However, the JCC did accept Dr. Hyde’s testimony that the specific benefits being sought were not medically necessary. Accordingly, the claimant remains entitled to further treatment of the low back if shown to be reasonable, medically necessary, and causally related to the condition deemed compensable, but the claimant is not entitled to the specific claims for physical therapy, lumbar MRI and a back brace.
Jay Levy v. Core Mark Holding Company/Liberty Mutual Insurance
JCC Punancy; West Palm Beach District; Order Date: February 10, 2016
OJCC Case: 15-002559SHP; D/A: 8/20/2014
Claimant’s Counsel: Jeffrey M. Friedman
Employer/Carrier’s Counsel: Ya’sheaka Campbell Williams
Briefly: SELF-HELP PROVISION OF F.S. §440.13(2)(c) – JCC Punancy found the claimant was justified in availing himself of the self-help provision of F.S. §440.13(2)(c), and accepted Dr. Simon’s opinions as admissible on the grounds the Employer/Carrier failed to fulfill its duty to provide appropriate care for the claimant at the appropriate time.
Summary: The Employer/Carrier authorized orthopedic surgeon, Dr. Edward Chung, to treat the claimant with the recommended lumbar epidural injections which were paid for and authorized by the Employer/Carrier. Dr. Chung kept the claimant on a light-duty work status and recommended an L4-L5 micro discectomy. Dr. Chung last saw the claimant on June 18, 2015, as he was no longer authorized based on the Employer/Carrier’s June 10, 2015, Notice of Denial.
Due to the denial of care, the claimant obtained an evaluation with orthopedic surgeon, Dr. Robert Simon, who noted an L4-L5 herniation with left L5 radiculopathy and also recommended a micro discectomy at the L4-L5.
The JCC found the accident was initially accepted as compensable and compensation benefits were provided for greater than 120 days. As such, the JCC found that the Employer/Carrier bears the burden to establish that there were material facts relevant to the issue of compensability that could not have been discovered through reasonable investigation within the 120 day period pursuant to F.S. §440.20(4). The JCC rejected the Employer/Carrier’s argument that inconsistent statements made by the claimant as to the date of the claimed accident, mechanism of injury, and location/extent of his pain, evidenced his failure to sustain the burden of proof to show an occupational cause of the claimed industrial accident. The JCC found that the documentary exhibits showed that the Employer/Carrier was aware of material facts within 120 days after the initial provision of benefits relative to the issue of compensability, but failed to deny the claim until following the 120 days. Accordingly, the JCC found that the Employer/Carrier’s delay in denying compensability resulted in a waiver of the right to deny compensability of the existence of the industrial accident.
On these grounds, the JCC found the claimant was justified in seeking an evaluation with Dr. Simon based upon Parodi v. Florida Contracting Company, Inc., 16 So. 2d 958 (Fla. 1st DCA 2009). The JCC accepted Dr. Simon’s opinion with regard to major contributing cause.
Steven Lane v. V & M Erectors/Sedgwick CMS
JCC Pitts; Orlando District; Order Date: February 9, 2016
OJCC Case: 15-013601NPP; D/A: 2/4/2013
Claimant’s Counsel: E. Taylor Davidson
Employer/Carrier’s Counsel: Berta Fandino-Guerra
Briefly: 25% SAFETY REDUCTION – JCC Pitts denied the 25% safety reduction and found the claimant did not knowingly fail to properly secure his safety harness at the time of the accident. The claim for full temporary disability benefits was granted.
Summary: The claimant was injured while working when he fell from the top of a bridge. Immediately prior to the fall, the claimant was lifted in a man basket to the top of the bridge, exited the man basket, and stepped onto the top of the bridge column. Instead of clipping to the rat line, which the claimant testified he did not believe was present, the claimant unclipped when he exited the man basket and walked untied and unprotected across the column. His fall occurred when he was working on the bearing. According to the testimony of the Employer, the rat line was present that day and was available for use by the claimant.
The claimant testified at deposition that people below saw him unclip when he existed the man basket and did not tell him this was an issue.
There is no dispute that the Employer’s policy and procedures require the employees to observe a 100% fall-protection policy, including use of personal protective equipment such as a full body harness and shock absorbing lanyards, and that any employee knowingly violating this policy for failure to use the equipment may be subject to immediate termination.
The JCC accepted the claimant’s testimony at hearing as credible, sincere, and believable. The JCC found that the claimant’s supervisor was aware the claimant had unclipped from the structure on top of the bridge column and was without fall protection and did not raise any objections to the claimant working on top of the bridge column without fall protection equipment. The JCC inferred that the reason the claimant failed to re-clip to the rat line was either because it was not present or set up properly, or that the claimant was rushing through the task and simply neglected to do it in haste. The JCC found the greater weight of the evidence did not support a finding that the claimant knowingly refused to clip onto an available rat line that was in close proximity to where he unclipped.
Christopher Draper v. Marion County BOCC aka Marion County Fire Rescue/USIS
JCC Hill; Gainesville District; Order Date: February 9, 2016
OJCC Case: 13-016247MRH; D/A: 5/30/2013
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Dana Olesky Taylor
Briefly: ATTORNEY FEE AMOUNT – JCC Hill awarded the statutory attorney fee for obtaining medical benefits in the amount of $206.38, but accepted the parties’ agreement that the claimant’s counsel reasonably expended 15 hours of time obtaining medical and indemnity benefits and that $250 is a reasonable hourly rate.