FL Case Law Summaries (2/17/16)
BY:
1ST DCA ORDERS
Steven A. Vanderwynkle v. John Moriarty & Associates/Gallagher Bassett Services, Inc.
Response to Writ of Certiorari
DCA Order Date: February 11, 2016
Case: 1D15-2608; D/A:
Petitioner’s Counsel: Frank Angione & Bill McCabe
Respondent’s Counsel: Michelle E. Ready
Briefly: OVERUTILIZATION; IME WITHOUT PENDING PFB – The 1st DCA denied the Petition for Writ of Certiorari and upheld JCC Medina-Shore’s order granting the Employer/Carrier’s IME, without a pending Petition for Benefits, in order to address the overutilization dispute.
Summary: The DCA upheld the JCC’s order which granted the Employer/Carrier’s IME without a pending Petition for Benefits. The Employer/Carrier cited F.S. §440.13(5)(a) which allows an IME in a dispute concerning overutilization. The adjuster testified that an overutilization review on treatment was ongoing and that an attorney was retained to represent the Employer/Carrier in the interests of the overutilization review process. Various peer reviews were approved and the adjuster clarified that while the Employer/Carrier is currently engaged in the overutilization review process, she did not deny the claimant treatment.
The JCC found she had jurisdiction over the IME request for the purpose of instituting an overutilization review, but that she does not have jurisdiction to determine whether overutilization has occurred. That determination is solely within the jurisdiction of the Division of Financial Services, which the Employer/Carrier has already initiated.
JCC ORDERS
Adrian Murphy v. Labor Finders/Guarantee Insurance Company
JCC Medina-Shore; Miami District; Order Date: February 15, 2016
OJCC Case: 15-014994SMS; D/A: 5/14/2014
Claimant’s Counsel: Bobby Wells
Employer/Carrier’s Counsel: Jessica Blydenburgh
Briefly: MAJOR CONTRIBUTING CAUSE; INTOXICATION DEFENSE – JCC Medina-Shore denied the claim for compensability and found the claimant did not take the necessary steps to prove his case so that compensability is denied without the need to address F.S. §440.09(7)(a) and (c), regarding injuries occasioned primarily by the intoxication of the employee.
Summary: Although the JCC found the claimant credible and accepted his testimony, she also found that the claimant’s alleged injury to his finger was not readily observable and lay testimony alone is insufficient to support a finding of causation. The JCC found the claimant had the opportunity of securing an Independent Medical Examination, but no IME testimony was presented by the claimant.
Although the claimant did present billing records to support his claim, these records did not contain any medical evidence of diagnosis, causal relationship, or medical necessity of said treatment. The claimant also attempted to prove his case with the introduction of medical evidence via a records custodian. However, the medical records custodian deposed was not the records custodian for Jackson Memorial Hospital, the treating provider.
Eugene Antosh v. Setty Enterprises, Inc./AmTrust North America of Florida and Technology Insurance
JCC Punancy; West Palm Beach District; Order Date: February 15, 2016
OJCC Case: 15-007821SHP; D/A: 12/23/2014
Claimant’s Counsel: Eric S. Lakind
Employer/Carrier’s Counsel: Andrew Borah
Briefly: MISREPRESENTATION DEFENSE – The JCC found the claimant violated the misrepresentation provisions of F.S. §440.105(4)(b)1 and §440.09(4) and found the claimant knowingly and intentionally provided false statements at his deposition and on his DWC-19 regarding whether he worked or earned income since his work-related accident.
Summary: The JCC found the claimant’s statements at deposition and on the January DWC-19 form that he has not worked/earned income since the industrial accident to be false. According to the claimant, he was confined to a wheelchair or bed at the time and unable to work since his right foot “swelled up like an elephant”. However, his testimony was contradicted by the testimony of Dr. Michel who testified that the claimant presented to him during that time period without a wheelchair but just in a cast and crutches and did not even use the crutches. The doctor testified that the claimant told him he was working. The JCC accepted the doctor’s testimony over the claimant who testified at trial that he told the doctor he was working because he was “feeling him out” and that he was not actually working.