FL Case Law Summaries (2/23/16)
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JCC ORDERS
Scott Kozlowski v. Enterprise Leasing Company of Florida aka Enterprise Rent-A-Car/York Risk Services Group
JCC Basquill; West Palm Beach District; Order Date: February 18, 2016
OJCC Case: 14-029242TNB; D/A: 1/21/2014
Claimant’s Counsel: Linette M. Waterman
Employer/Carrier’s Counsel: Henry Roman
Briefly: TEMPORARY PARTIAL DISABILITY; MISCONDUCT – JCC Basquill awarded temporary partial disability benefits, denied the defense of misconduct, and found there was no satisfactory explanation concerning the alleged misconduct and theft allegation against the claimant.
Summary: The JCC determined the claimant’s actions did not rise to the level of misconduct as defined in the statute The JCC found there was no specific information presented by the Employer/Carrier concerning the alleged theft or direct implication of the claimant in any scheme. The JCC found there was no explanation as to how the computer records were back-dated or that there was uneven enforcement of an ambiguous company policy.
The JCC found the claimant satisfied the elements of Toscano, 40 So. 3d 795 (Fla. 1st DCA 2010) and awarded temporary partial disability.
Nivia Lascaibar v. Stack, Fernandez, Anderson & Harris/Castlepoint Florida
JCC McAliley; Port St. Lucie District; Order Date: February 19, 2016
OJCC Case: 13-028208RDM; D/A: 11/25/2013
Claimant’s Counsel: David Scott Benn, Ernesto de le Fe, D. Robert Wells
Employer/Carrier’s Counsel: Andrew R. Borah
Briefly: MEDICAL NECESSITY – JCC McAliley denied the claims for various medical evaluations, medical devices, and an orthopedic mattress and accepted the opinion of the Expert Medical Advisor, Dr. Johnathan Hyde, that the claimant does not require further medical care as a result of the industrial accident.
Summary: The JCC found the claimant failed to establish her entitlement to the various medical specialties, modalities of care, medical devices, and medical testing being sought and stated “Simply making a claim for these medical items does not demonstrate their medical necessity”.
The claimant contended that regardless of the merits of the immediate claims, the JCC is required to rule on the question of whether the major contributing cause of any modality of care is the medical sequela of her industrial accident. The JCC disagreed and found that, if the claimant had established the claims were a medically necessary component of her underlying industrial injury, then the Employer/Carrier has the burden of proving the break in the causal chain.
The JCC noted the claimant still had an authorized physician to treat her on an as-needed basis at the time of the hearing.
Oscar Maldonado v. Waste Management, Inc./Gallagher Bassett Services, Inc.
JCC Weiss; Ft. Myers District; Order Date: February 19, 2016
OJCC Case: 15-003246JAW; D/A: 1/26/2015
Claimant’s Counsel: Salvatore J. Sicuso
Employer/Carrier’s Counsel: Sean L. Crosby
Briefly: MEDICAL NECESSITY – JCC Weiss denied the claims for medical services and evaluations with physicians of various specialties on the grounds they were not medically necessary pursuant to the opinion of the Expert Medical Advisor, Dr. Perloff.
Summary: The claimant argued he will be able to obtain favorable testimony from the EMA physician, Dr. Perloff, in deposition. As a result, the JCC allowed Dr. Perloff’s deposition to be admitted into evidence post-hearing and kept the Record open until January 22, 2016, to do so. However, neither party filed Dr. Perloff’s deposition, so that Dr. Perloff’s opinions were admitted solely via his three page report.
The JCC accepted the opinion of the Expert Medical Advisor that the claimant was not in need of any referrals for treatment. The JCC noted that the doctor could not relate the claimant’s hypertension to the industrial accident. The JCC accepted Dr. Perloff’s opinion that the claimant presented with a large volume of complaints that seemed out of proportion to the type of injury he had and that there was no permanent impairment rating or work restrictions.
The JCC rejected claimant’s argument that the claimant’s IME physician, Dr. Jennifer Miranda-Mangas, provided an opinion sufficient to overcome the presumption of the Expert Medical Advisor. Dr. Miranda-Mangas testified she is in a better position than Dr. Perloff to evaluate the claimant because her specialty of internal medicine focuses on whole body while Dr. Perloff is a cardiologist who focuses on the heart and vascular system. The JCC found this argument did not rise to the level of the clear and convincing evidence sufficient to overcome the presumption afforded the EMA. The JCC also found that even without Dr. Perloff’s opinion, he would reject outright Dr. Miranda-Mangas’ opinions as not consistent with logic and reason.
Racine Balazich v. Whitman Organization, LLC/Zenith Insurance Company
JCC Lewis; Ft. Lauderdale District; Order Date: February 19, 2016
OJCC Case: 15-014501DAL; D/A: 10/26/2013
Claimant’s Counsel: Paul Buechele
Employer/Carrier’s Counsel: Robin Ross
Briefly: COMPENSABILITY; NO ACCIDENT; NOTICE OF ACCIDENT – JCC Lewis denied the claim for compensability and rejected the claimant’s testimony as replete with inconsistencies and contradictions. Further, the JCC found the claimant did not timely report the accident to the Employer.
Summary: The JCC noted the claimant testified that she left work early on the date of accident. However, the payroll and timeclock records reflect the claimant worked and was paid for a full shift on that date. Further, the JCC noted the claimant’s testimony that she did not work on the day following the accident due to her pain, but that the payroll and timeclock records again reflected that claimant worked a full shift. Further, the JCC noted the medical records did not contain a history of a work-related accident as asserted by the claimant.
The JCC found the claimant’s credibility to be suspect, rejected her testimony, and found she failed to carry her burden of persuasion that she sustained an accident arising out of and in the course of her employment and also found claimant failed to timely report the alleged accident to her Employer.
Virginia Demato v. Flagler College, Inc./Travelers Insurance
JCC Holley; Jacksonville District; Order Date: February 20, 2016
OJCC Case: 15-002119WRH; D/A: 8/22/2011
Claimant’s Counsel: Christopher V. Puleo
Employer/Carrier’s Counsel: Thomas G. Portuallo
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Holley found the burden of proof as to causation for permanent total disability fell on the shoulders of the Employer/Carrier as compensability was previously established and that the Employer/Carrier did not show a break in the causation chain. Further, the JCC found that the claimant’s permanent work-related physical restrictions preclude her from engaging in at least sedentary employment when combined with vocational factors.
Summary: The JCC found that, because compensability of the claimant’s knee condition was well-established, the burden of proof as to causation for permanent total disability fell on the shoulders of the Employer/Carrier and that the Employer/Carrier must show a break in the causation chain or a new accident or that the permanent total disability status was due to a condition unrelated to the injury. The JCC explained that the Employer/Carrier authorized a meniscus surgical repair of the claimant’s right knee and paid a 7% permanent impairment rating pursuant to Dr. Volk’s opinion.
The JCC applied the three prongs for determination of PTD under the decision of Blake v. Merck and Company, 43 So. 3d 882 (Fla. 1st DCA 2010) and found the evidence did not support either of the first two prongs, but that the third prong was applicable. The JCC noted this was a “close decision in light of claimant’s many vocational assets, computer proficiency, and transferrable skills”. However, the JCC also noted the claimant was 69 years old, used a cane, and had an extended period of unemployment since the last day she worked.