FL Case Law Summaries (2/24/16)
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JCC ORDERS
Thomas Vito Scotti v. Hernando County Sheriff’s Office/North American Risk Services
JCC Massey; Tampa District; Order Date: February 22, 2016
OJCC Case: 13-025556MAM; D/A: 1/23/2013
Claimant’s Counsel: Scott Eldridge
Employer/Carrier’s Counsel: E. Louis Stern & Bryan Greenberg
Briefly: TEMPORARY DISABILITY; MEDICAL NECESSITY – JCC Massey denied the claim for temporary total and temporary partial disability benefits and found the surveillance evidence in this case was very powerful and highly inconsistent with the claimant’s presentations to his physicians. Nevertheless, the JCC rejected the misrepresentation defense. The JCC also found that the injections at issue are not medically necessary and that clear and convincing evidence exists to reject the opinion of the Expert Medical Advisor physician that it is “possible” the claimant would benefit from the injections.
Summary: The JCC found the claimant is an experienced and savvy litigant who has successfully navigated the workers’ compensation system on previous occasions. The JCC found the claimant’s answers in deposition and at hearing were deliberately calculated, but that the claimant did not make false, fraudulent, or even misleading statements in support of his claim. The JCC found the surveillance demonstrated the claimant is capable of a full range of physical activity without restrictions or limitations. The JCC found the claimant has no work restrictions as a result of his compensable injury which would prevent him from performing the same work and earning the same wages as before his injury.
The JCC found that any temporary partial disability that has been paid is an overpayment.
Although the Expert Medical Advisor, Dr. Wasylik, opined that it was “possible” the claimant would benefit from an epidural steroid injection in the cervical spine, the JCC found there was clear and convincing evidence to reject the EMA opinion based upon the opinions of Dr. Pagaono, Dr. Ilalov and Dr. Reheem that there is no radiculopathy, no other objective findings, and no right-sided MRI findings which correlate with or substantiate claimant’s pain complaints.
Parbattie J. Persaud v. Lowe’s Home Centers, Inc./Sedgwick CMS
JCC Forte; Ft. Lauderdale District; Order Date: February 22, 2016
OJCC Case: 12-014834IF; D/A: 6/19/2012
Claimant’s Counsel: Matthew D. Sosonkin
Employer/Carrier’s Counsel: Stephen G. Kaufer
Briefly: TRANSPORTATION – JCC Forte ordered the Employer/Carrier to provide the claimant with transportation to her medical appointments and rejected the Employer/Carrier’s defense that the claimant is required to “up front” the cost of transportation, including a more economical Uber fare.
Summary: The JCC found that, since the beginning of the claim, the Employer/Carrier provided the claimant with transportation from her home to the medical appointments. The transportation was provided because the claimant did not have a driver’s license and does not own a vehicle. At the time the adjuster suspended the transportation service, nothing in the claimant’s circumstances had changed. The JCC found the Employer/Carrier failed to present evidence to meet its burden that they provided the claimant with a more economical and reasonable transportation alternative in lieu of the original authorized service.
The JCC rejected the Employer/Carrier’s argument that the claimant is required to up front the cost of transportation and wait to be reimbursed by the Employer/Carrier. The Employer/Carrier argued that an ongoing computer search revealed that taxi cab fare from the claimant’s house to the office of Dr. Hodor would be $56, while Uber fare would be approximately $30. The JCC accepted the claimant’s testimony that she simply did not and does not have the money to up front the cab fare and she does not know how Uber works. The JCC noted no evidence was presented that the claimant has a smart phone that would support an Uber application in order for her to use the service.
Further, the JCC accepted the claimant’s testimony that public transportation from her house to the doctor’s office would require her to change buses four times and would take 2.5 hours a day of travel each way. The JCC found public transportation was not reasonable or a reliable alternative.
Fausto Prado v. Kellermeyer Bergenson Services, LLC/Gallagher Bassett Services, Inc.
JCC Spangler; Miami District; Order Date: February 22, 2016
OJCC Case: 13-003113EDS; D/A: 12/29/2012
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: Marybell Rajo
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS; MISCONDUCT – JCC Spangler granted certain claims for TPD benefits, but denied other claims for TPD based upon a finding that the claimant was terminated from employment for misconduct.
Summary: The JCC described a surveillance video of the claimant and the claimant’s deposition where he admitted he had possessions from the store that were not his. Although the claimant denied stealing anything from the store, the JCC found the claimant’s actions were of such a nature as to qualify for misconduct in that they were clearly evincing a disregard of the standards of behavior demanded by the Employer. The JCC denied the request for temporary partial disability benefits following the date of termination.
The JCC found that the claimant was seen placing a bag of coffee in a dustpan on his cleaning cart and then pushing the cart outside the store. The claimant was stopped by security and asked to re-enter the store and the item was removed from the dustpan.