FL Case Law Summaries (2/15/16)
BY:
JCC ORDERS
Victor Ocampo-Martinez v. Heritage Drywall Company/Auto Owners
JCC Rosen; St. Petersburg District; Order Date: February 11, 2016
OJCC Case: 11-027310SLR; D/A: 9/10/2011
Claimant’s Counsel: Michael J. Winer
Employer/Carrier’s Counsel: Adam C. Muth
Briefly: APPEARANCE AT FINAL HEARING; – JCC Rosen awarded medical treatment and found that his prior order requiring the “in person” appearance at the final hearing did not require that the claimant be live in the courtroom. The JCC found the law is clear in that a claimant need not appear live or by electronic means at a final hearing on his claim.
Summary: The JCC noted the claimant was in the United States illegally at the time of the compensable accident and has since been deported by the U.S. Government and is not allowed to return to this country at the present time. The Employer/Carrier contended that, since the claimant’s deportation, it has not been able to mount a defense because of its inability to see the claimant in person, face to face, to make an assessment on how to proceed with handling its defenses. However, the JCC noted that the Employer/Carrier did authorize treatment for the claimant in Mexico. The JCC advised that his prior order on this issue did not specifically state that “in person” must be live in the courtroom as interpreted by the Employer/Carrier. The JCC found that the Employer/Carrier simply chose to expect the claimant to appear live in the courtroom knowing full well he is incapable of re-entering the United States.
The JCC also noted that that there are several authorized medical reports in evidence written in Spanish, and neither party presented an interpreter for these reports. The JCC found that he, himself, was qualified to interpret the opinions contained in the reports based upon the JCC’s own years of experience with interpretation of Spanish to English.
The claimant relied on the admissible medical reports of the authorized treating physician which state that the claimant is in need of medical care and treatment as a result of an industrial accident.
Ernesto Sierra v. Metropolitan Protective Services, Inc./Guarantee Insurance Company
JCC Rosen; Miami District; Order Date: February 11, 2016
OJCC Case: 12-019703SLR; D/A: 4/1/2012
Claimant’s Counsel: Michael Goldstein
Employer/Carrier’s Counsel: Robert Potter
Briefly: 120 DAY RULE; MAJOR CONTRIBUTING CAUSE; ESTOPPEL – JCC Rosen found the claimant suffered a compensable psychiatric injury by operation of law as the Employer/Carrier did not timely deny the psychiatric injury under the 120 day pay and investigate rule. However, the JCC also found the Employer/Carrier satisfied its burden to show a break in the causal chain so that the industrial accident is no longer the major contributing cause of the claimant’s need for treatment for post-traumatic stress disorder.
Summary: The JCC found the Employer/Carrier did not timely deny the psychiatric injury within 120 days after the Employer/Carrier was put on notice of the specific psychiatric diagnosis of post-traumatic stress disorder.
The carrier contended that the industrial accident was no longer the major contributing cause of the need for psychiatric treatment and that a subsequent auto accident broke the causal chain and was the major contributing cause of the need for psychiatric care at the time of the final hearing. The JCC found the defense of major contributing cause was supported by competing causes including a severe intervening auto accident which caused the claimant to suffer a right shoulder injury, stop employment, and cause continuing pain and disability in the right arm. The JCC accepted the opinion of Dr. Miller that 75% of the claimant’s post-traumatic stress disorder is related to the intervening vehicle accidents.
The JCC rejected the claimant’s argument that the Employer/Carrier is estopped or waived the defense of major contributing cause because it knew for over two years that the claimant suffered from PTSD without formally raising the defense of major contributing cause. The JCC found that the claimant provided no case law authority or statutory law requiring an Employer/Carrier to raise the major contributing cause defense within any specific time frame.
Floyd S. Nelson v. Macy’s/Macy’s Claims Services
JCC Medina-Shore; Miami District; Order Date: February 11, 2016
OJCC Case: 13-002285SMS; D/A: 4/29/2011
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: David Goehl
Briefly: ONE-TIME CHANGE – JCC Medina-Shore denied the claim for a one-time change and found the Employer/Carrier already provided the claimant with a one-time change in physicians during the period of time when the claimant was not represented by counsel.
Summary: The JCC accepted the adjuster’s testimony that the one-time change doctor remains authorized to treat the claimant’s compensable injury and that a de-authorization letter was sent to the initial treating physician. The JCC noted the claimant did treat with the one-time change physician on four separate occasions and received injections to his knee. The JCC rejected the claimant’s testimony that the second authorized physician was not authorized as a one-time change in treating physicians, but was authorized only as a second opinion regarding the recommendation for hip surgery.