FL Case Law Summaries (2/25/16)
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1ST DCA ORDERS
Victor Soca v. Advanced Auto Parts/Sedgwick Claims Services
Appeal of the Order from JCC Charles Hill
DCA Order Date: February 23, 2016
Case: 1D15-795; D/A: 4/24/2010
Appellant’s Counsel: Bram J. Gechtman
Appellee’s Counsel: Christopher A. Thorne
Briefly: SANCTIONS – The 1st DCA reversed the order of JCC Hill denying claimant’s Motion for Sanctions as premature and held the JCC had jurisdiction over the Motion for Sanctions.
Summary: The JCC found he did not have jurisdiction to determine the claimant’s Motion for Sanctions because the Employer/Carrier’s Motion to Tax Costs, which formed the basis of the claimant’s Motion for Sanctions, was withdrawn before the JCC had a chance to hear the sanctions motion.
The 1st DCA reversed and held that the Motion for Sanctions became “mature” once the Employer/Carrier failed to deny the Motion for Sanctions or withdraw the Motion to Tax Costs within 21 days pursuant to Rule 60Q-6.125(4)(a). The DCA held that the JCC did have jurisdiction to rule on the sanctions motion and to conclude otherwise would render the safe-harbor provision meaningless and F.S. §440.32 “toothless”.
Gary A. Steinberg v. City of Tallahassee/City of Tallahassee Risk Management
Appeal of the Order from JCC Laura Roesch
DCA Order Date: February 23, 2016
Case: 1D15-1794; D/A: 8/20/2011
Appellant’s Counsel: Bill McCabe
Appellee’s Counsel: Christopher J. Dubois & Mary E. Cruickshank
Briefly: EXPERT MEDICAL ADVISOR – The 1st DCA reversed the order of JCC Roesch denying appointment of an Expert Medical Advisor and held that the claimant’s EMA request was timely following the first notice of conflict filed by the claimant pursuant to Banuchi v. Department of Corrections, 122 So. 3d 999 (Fla. 1st DCA 2013).
Summary: The 1st DCA identified a peculiarity in the Expert Medical Advisor law that, even though it is a JCC’s statutory duty to appoint an EMA in proper circumstances, a JCC’s failure to sua sponte appoint an EMA is not fundamental error. The DCA pointed out that a party that requests an Expert Medical Advisor must pay for it, but when a JCC sua sponte appoints an EMA the cost falls on the Employer/Carrier. Accordingly, the claimant, to preserve his appellate rights, may give notice for the need of an EMA without actually requesting an EMA by motion pursuant to Banuchi v. Department of Corrections, 122 So. 3d 999 (Fla. 1st DCA 2013).
Here, the claimant gave the JCC two “Banuchi notices” before filing a motion requesting an EMA. The 1st DCA held that the first Banuchi notice cured any timeliness problem because the purpose of an EMA request is not to give the opposing litigant notice, but to inform the JCC of his or her mandatory duty early enough not to disrupt orderly proceedings. Thus, even though the claimant filed his motion requesting an EMA five days before the rescheduled final hearing, the claimant first filed a Banuchi notice over thirty days prior to the original scheduled date of final hearing.
Thomasena Mitchell v. Miami Dade County aka MDPD (Intracoastal)/Miami Dade County Risk Management
Appeal of the Order from JCC Edward Almeyda
DCA Order Date: February 23, 2016
Case: 1D15-2153; D/A: 1/27/2013
Appellant’s Counsel: Wendy Loquasto
Appellee’s Counsel: R. A. Cuevas, Jr. & Daron S. Fitch
Briefly: PRESUMPTION UNDER F.S. §112.18 – The 1st DCA reversed the JCC’s finding that the Employer/Carrier overcame the presumption of F.S. §112.18 and rejected the JCC’s analysis of the medical testimony as to what “triggered” or made symptomatic claimant’s congenital slow accessory pathway which manifested as supra ventricular tachycardia (SVT).
Summary: The DCA noted that the JCC made no findings whether any potential trigger or triggers for the SVT were occupational, and found that the JCC erroneously concluded that, because the underlying slow accessory pathway was congenital (non-occupational), so too was the trigger. The DCA held that the JCC should consider the evidence in considering whether the Employer overcame the presumption by establishing competent substantial evidence that the trigger was also non-occupational.
The DCA explained that it is not necessary for the Employer to identify a single non-occupational cause in order to overcome the presumption. If the expert medical testimony establishes, for instance, that there are one or more possible non-occupational causes for the trigger, or there are no known occupational causes, this testimony, if accepted by the JCC, could overcome the presumption. On the other hand, if the JCC declined to accept this contrary evidence, then the presumption would support a ruling in favor of the claimant.
The DCA reversed and remanded for further proceedings, which, at the JCC’s discretion, may include a reopening of the medical evidence to address the trigger issue.
JCC ORDERS
Luis Gonzalez v. Albion Staffing Solutions, Inc./AIG Property Casualty
JCC Medina-Shore; Miami District; Order Date: February 23, 2016
OJCC Case: 14-017149SMS; D/A: 6/20/2014
Claimant’s Counsel: Michael Goldstein
Employer/Carrier’s Counsel: James Price
Briefly: MOTION FOR SUMMARY FINAL ORDER ON EMG/NCS – JCC Medina-Shore granted the claimant’s Motion for Summary Final Order and rejected the Employer/Carrier’s defense that discovery had yet to be taken and was necessary on the pending issue.
Summary: The claimant filed a Motion for Summary Final Order requesting a repeat EMG/NCS with a different provider. The Employer/Carrier responded that discovery had yet to be taken on the issue of medical necessity of the EMG/NCS test.
The JCC accepted the claimant’s argument that the Employer/Carrier’s blanket allegation with no supporting documentation does not create a genuine issue of material fact and that based upon the doctor’s prior medical report the claimant is entitled to authorization of an EMG/NCS with a different provider.
Further, the JCC found there was no evidence of any pending discovery and that the Employer/Carrier had three months to conduct discovery or secure an affidavit on the EMG/NCS issue.
Edwin Hernandez v. Planet Hollywood Restaurant/Zurich American Insurance Company
JCC Sculco; Orlando District; Order Date: February 23, 2016
OJCC Case: 15-004001TWS; D/A: 8/18/2014
Claimant’s Counsel: Andrew S. Neuwelt
Employer/Carrier’s Counsel: Jack Keller
Briefly: DIAGNOSTIC TESTS PER IME – JCC Sculco granted the claimant’s Motion to Compel the Employer/Carrier to pay for cervical and lumbar EMGs and MRIs pursuant to the recommendation of the claimant’s IME physician under a managed care plan.
Summary: It is undisputed that the Employer/Carrier has provided medical benefits to the claimant through a managed care plan. The claimant selected Dr. Sable as his IME from a list of providers. Dr. Sable recommended MRIs of the cervical spine and lumbosacral spine as well as EMGs in order to formulate impressions of what the claimant’s problems were and treatment recommendations. The claimant argued that Dr. Sable’s testimony supports payment of the diagnostic testing because the tests are necessary to help the doctor determine the cause of the claimant’s injury.
The Employer/Carrier argued that the diagnostic test studies are not payable by the Employer/Carrier because the studies relate to two body parts that were deemed non-compensable by the Employer/Carrier.
The JCC found that when F.S. §440.13(5)(a) and §440.134(6)(9) are read together, they require that the cost of any diagnostic testing needed by an IME to complete an evaluation are to be paid by the Employer/Carrier if the IME physician is in the managed care network.