FL Case Law Summaries (2/16/16)
BY:
JCC ORDERS
Mary C. McKee v. Ross M. Valdez DVM, PA/Hartford Accident & Indemnity Company, Hartford Insurance of the Southeast
JCC Condry; Orlando District; Order Date: February 12, 2016
OJCC Case: 11-001834WJC; D/A: 5/12/2010
Claimant’s Counsel: Mark N. Tipton
Employer/Carrier’s Counsel: Chris W. Hoeg
Briefly: MEDICAL NECESSITY – JCC Condry denied the request for authorization of a spine specialist per the recommendation of the authorized treating physician, Dr. Nathan Mall, on the grounds that authorization of a spine specialist is not medically necessary.
Summary: The JCC noted the only opinion of a spine specialist in evidence was that of Dr. David S. Raskas, the Employer/Carrier’s IME, who opined that the claimant’s neck condition was not related to her employment. The JCC explained that, although the treating physician, Dr. Mall, believed there was a “potential” for a causal relationship between the claimant’s cervical spine condition and the claimant’s compensable right upper extremity symptoms, Dr. Mall opined that a cervical spine specialist would be the better person to address that causation question. The JCC stated that, in the face of Dr. Raskas’ opinions rejecting a causal relationship between the claimant’s employment and cervical condition, the claimant had the option of meeting or rebutting that opinion testimony on causation by securing her own Independent Medical Examiner to address causation and medical necessity. The claimant never pursued the IME option. The JCC found the claimant failed to carry her burden of proof as to medical necessity of the referral with Dr. Raskas having found no causal relationship.
Ramona Zavala v. Economic Development Commission of Mid-Florida, Inc. d/b/a Metro Orlando Economic Development Commission, Workforce of Central Florida, Insperity Support Services, LP/ESIS WC Claims, Division of Risk Management, ACE USA, and Sedgwick CMS
JCC Pitts; Orlando District; Order Date: February 12, 2016
OJCC Case: 13-028352NPP; D/A: 11/12/2013
Claimant’s Counsel: Kelli B. Hastings
Employer/Carrier’s Counsel: Kristin J. Longberry
Briefly: APPELLATE ATTORNEY’S FEES – JCC Pitts determined the amount of an appellate attorney’s fee and awarded the fee based upon a reasonable hourly rate of $300 per hour and 132 hours of appellate attorney time.
Gregory Pierson v. Express Services Inc./Sedgwick CMS
JCC Beck; Sarasota District; Order Date: February 12, 2016
OJCC Case: 15-011342DBB; D/A: 2/7/2015
Claimant’s Counsel: Frank Clark
Employer/Carrier’s Counsel: Mary Frances Nelson
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS; DWC-25 FORMS – JCC Beck awarded TPD benefits and found the claimant established that as a result of his work-place accident, he was unable to successfully perform the tasks of his pre-injury job which resulted in a cessation of the performance of that employment and a reduction of his income. The JCC relied on the DWC-25 Forms.
Summary: The JCC found the claimant to be credible and accepted his explanation for the discrepancy between his deposition and trial testimony. The JCC accepted the claimant’s testimony that he has not looked for work because of his back, but was able to do odd jobs including ride a lawnmower, use an electric chainsaw, use a gas-powered trimmer and a leaf blower on his back, and paint exteriors with a roller and a brush. The JCC also found that the claimant’s wife goes along with him when he mows yards and does the weed-eating.
The JCC accepted the claimant’s testimony that he could not perform the job with the Employer due to his back pain. The claimant testified that his job with the Employer was harder than his odd jobs and lawn care work. The JCC found that no contradictory testimony was offered to rebut the claimant’s testimony regarding his job duties with the Employer or any job offered with the Employer.
The JCC noted that no doctor depositions were taken in this case but did admit into evidence medical records of the authorized treating providers including DWC-25 forms completed by the doctors. The JCC admitted these forms into evidence over the objection of the Employer/Carrier and found that the DWC-25 forms are medical records and not documents created for the purpose of litigation. The JCC rejected the Employer/Carrier’s argument that Rule 69L-7.710(4)(a)4.a., F.A.C.(2015), establishes that a DWC-25 is not a medical record. Further, the JCC found that the DWC-25 forms are designed to comply with F.S. §440.09(1) and that they have sections for the doctor to complete which show whether objective medical findings support their diagnosis, whether there were pre-existing conditions contributing, and whether the industrial accident is the major contributing cause of the condition and need for treatment. The JCC found that the DWC-25 forms are designed to obviate the need for testimony on medical issues and fulfill the self-executing nature of the workers’ compensation system.
Bridget Edwards v. Miami-Dade County Public Schools/Gallagher Bassett Services, Inc.
JCC McAliley; Port St. Lucie District; Order Date: February 12, 2016
OJCC Case: 14-025869RDM, 14-026990RDM, 14-026998RDM, 14-027000RDM; D/A: 11/24/2009
Claimant’s Counsel: Daniel T. Gross
Employer/Carrier’s Counsel: Michael J. Ring
Briefly: BREAK IN CAUSAL CHAIN – JCC McAliley denied entitlement to further workers’ compensation benefits and found the Employer/Carrier met its burden of demonstrating a break in the causal chain between injuries sustained in the accidents themselves and the need for further medical care (except for certain benefits subject to stipulation related to alternative dates of accident and a statute of limitations defense).
Summary: The JCC found that prior to the industrial accident, the claimant developed marked arthritis in her shoulder joint. The JCC found that the pre-existing arthritis was demonstrated by irregularities in the joint surfaces together with osteophyte formation and swelling. The JCC found that in all four accidents considered in the order, the claimant experienced a minor soft tissue issue which exacerbated her pre-existing left shoulder disease and that in each case the soft tissue injury subsided to her pre-accident status.
Evelyn Ruth Henderson v. H&R Block/Corvel Corporation
JCC Sojourner; Lakeland District; Order Date: February 12, 2016
OJCC Case: 15-018550MES; D/A: 4/10/2015
Claimant’s Counsel: Pat T. DiCesare
Employer/Carrier’s Counsel: Ya’Sheaka Campbell Williams & Wesley J. Heim
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS; VOLUNTARY LIMITATION OF INCOME – JCC Sojourner awarded temporary partial disability benefits for a period of time that the claimant’s work for the Employer ended and she had restrictions on her ability to work. However, the JCC also denied TPD for the period of time when the Employer/Carrier established that the claimant voluntarily limited her income by failing to keep a scheduled appointment with the Employer.
Summary: The JCC awarded temporary partial disability benefits for a period of time the claimant had work restrictions and there was no work available to her with the Employer.
However, the JCC also found the claimant voluntarily limited her income by failing to keep a scheduled appointment with the Employer. The JCC rejected the claimant’s explanation that she did not think she could work for the Employer because of her workers’ compensation case. The JCC found that the claimant was clearly able to work for the Employer post-injury and did so until tax season ended.