FL Case Law Summaries (2/18/16)
By:
Juan Alvarez v. Fort Pierce Police Dept.
Appeal of the Order from JCC Robert D. McAliley
DCA Order Date: February 16, 2016
Case: 1D15-2115; D/A: 2/7/2014
Appellant’s Counsel: Bill McCabe
Appellee’s Counsel: Lamar D. Oxford & Alan D. Kalinoski
Briefly: DIAGNOSTIC TESTING – The 1st DCA reversed the JCC’s order denying the claim for payment of medical bills incurred for diagnostic testing at the emergency room and held that the JCC overlooked medical reports indicating that testing was performed to rule out a possible work-related cause and that the causes of claimant’s post-injury symptoms were never determined.
Summary: The claimant argued that the additional diagnostic testing performed at the hospital was necessary to diagnose the nature of his compensable head injury. The Employer/Carrier argued that the claimant’s compensable injury was limited to only a head laceration resulting from a fall at work. At the same time, the Employer/Carrier acknowledged the possibility that the claimant’s head injury may have involved more than a simple laceration and, for that reason, conceded that the initial CT scan of the head was compensable as a diagnostic test following claimant’s fall. However, according to the Employer/Carrier, once the initial head CT scan was read as indicative of stroke, no further testing was required for the injury.
The DCA held that the claimant had the burden of showing that the diagnostic testing performed during his hospitalization was reasonably required by the nature of the workplace injury. After reviewing the Record medical evidence, the DCA reversed the JCC’s finding and found the JCC overstated the results of the initial CT scan as decisive evidence ruling out the possibility of a relationship between the compensable injury and the need for further testing. The DCA noted the testimony of the Emergency Room physician that further testing, beyond the initial CT scan, was ordered because the diagnosis of a stroke was uncertain at the time the Claimant was hospitalized.
JCC ORDERS
Natalie Jackson-Fuller v. Pinellas County Dept. of Health and Human Services/Division of Risk Management and Pinellas County Risk Management
JCC Rosen; St. Petersburg District; Order Date: February 17, 2016
OJCC Case: 15-017198SLR; D/A: 12/12/2014
Claimant’s Counsel: Jesse Rowe
Employer/Carrier’s Counsel: Kelly Vicari
Briefly: TEMPORARY TOTAL DISABILITY; TEMPORARY PARTIAL DISABILITY – JCC Rosen made no ruling on the claim for temporary total disability benefits on the grounds he lacked jurisdiction since the claimant was not out of work a total of 21 days as required by F.S. §440.12(1). The JCC denied the claims for temporary partial disability benefits.
Summary: The JCC found that the claimant was out of work for six days after her first compensable surgery and fourteen days after the second authorized surgery. Therefore, the claimant has not been out of work a total of 21 days or more as required by F.S. §440.12(1). The JCC found he did not have jurisdiction to make a ruling where the claimant is entitled to temporary total disability since she had not been out of work for 21 days. However, the JCC also found that, if and when jurisdiction attaches statutorily, the claimant may renew her claim for temporary total disability for time unpaid.
With regard to temporary partial disability benefits, the JCC cited the test set forth by the 1st DCA in Wyeth/Pharmer v. Toscano, 40 So. 3d 795 (Fla. 1st DCA 2010) and found the record was completely devoid of any evidence to show the compensable injury caused a change in the claimant’s status resulting in a reduction of wages below 80% of her pre-injury average weekly wage. The JCC found the claimant failed to establish a causal relationship between the alleged economic disruption and the compensable injury. The JCC noted that the claimant returned to work until she was terminated for reasons not involving the compensable injury.
Dane Hidden v. Day and Zimmerman/Florida Power & Light Co./Broadspire
JCC McAliley; Port St. Lucie District; Order Date: February 17, 2016
OJCC Case: 15-017256RDM; D/A: 5/22/2015
Claimant’s Counsel: James T. Walker
Employer/Carrier’s Counsel: Derrick E. Cox
Briefly: NO ACCIDENT; MAJOR CONTRIBUTING CAUSE – JCC McAliley denied the claim for determination of compensability and found that the claimant’s injury was not readily observable and denied admission of claimant’s offered medical experts on the grounds that neither doctor was authorized by the Employer/Carrier, employed as an IME, or employed as an Expert Medical Advisor.
Summary: The JCC noted the claimant was seen in the emergency room but that nothing indicates medical services were provided with the intent of determining whether an emergency condition existed. Further, the JCC found the hospital records did not contain a specific diagnosis of claimant’s condition other than the claimant complained of neck pain on and off and that the claimant appeared to be in no distress. The hospital records reflected that the claimant did not have any pertinent problems, signs, or symptoms associated with neck pain. The JCC found the hospital records did not address the origin of claimant’s neck pain. The JCC denied admission of hospital records, but noted that, even if the reports were admissible, there was nothing to establish compensability within the contents of the records.
Carlos Lopez v. Rank Trade Services, Inc./Retail First Insurance Company
JCC Almeyda; Miami District; Order Date: February 16, 2016
OJCC Case: 14-009014SMS; D/A: 2/21/2014
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: Stephanie A. Robinson
Briefly: MISREPRESENTATION DEFENSE – JCC Almeyda denied the claim for benefits and found the claimant violated F.S. §440.09 and §440.105 by intentionally making false, fraudulent, or misleading statements for the purposes of obtaining workers’ compensation benefits when the claimant denied receipt of any other sources of income in his initial deposition.
Summary: The JCC found the claimant intentionally misrepresented that he had no other sources of income at deposition. The JCC pointed out that, subsequent to the initial deposition, the claimant testified that he was the legal registered owner of a company and had received income in the months before his deposition.
Kathy N. Novick v. MetLife Group/Travelers Insurance Company
JCC Forte; Ft. Lauderdale District; Order Date: February 16, 2016
OJCC Case: 15-006567IF; D/A: 11/7/2014
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Amy B. Siegel
Briefly: MISREPRESENTATION DEFENSE – JCC Forte denied the claim for compensability and found the claimant knowingly and intentionally made false, fraudulent, incomplete, or misleading statements for the purpose of obtaining workers’ compensation benefits when the claimant denied any previous history of neck injuries or symptoms to the authorized treating physicians.
Summary: The JCC found the evidence presented overwhelmingly supported the Employer/Carrier’s position that the claimant made false, incomplete, or misleading statements about her medical history, prior accident, and the extent of her current injuries in order to advance her claim. The JCC found the claimant failed to disclose her longstanding complaints of neck pain and particularly, failed to disclose a recent fall she sustained at home involving her neck.
The JCC rejected the claimant’s explanations that what transpired in this case was a lack of communication with the medical providers and not an intentional act of misrepresentation on her part. The JCC found no evidence that claimant’s physicians or staff made any errors in coding her medical complaints or erroneously documented, or failed to document, what the claimant reported. The JCC agreed with the Employer/Carrier that accepting the claimant’s explanation would require a conclusion that all physicians the claimant saw were either conspiring against her or were all inept.