FL Case Law Summaries – 2/29/16
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JCC ORDERS
John E. Kubik v. Hillsborough County School Board/Broadspire
JCC Lorenzen; Tampa District; Order Date: February 25, 2016
OJCC Case: 12-007085EHL & 11-011866EHL; D/A: 4/12/2011 & 6/24/2009
Claimant’s Counsel: Craig Stewart
Employer/Carrier’s Counsel: Debra Metzler
Briefly: TEMPORARY TOTAL DISABILITY; AUTHORIZATION OF MEDICAL TREATMENT – JCC Lorenzen denied the claim for temporary total disability benefits, but granted the claim for authorization for treatment of the claimant’s cervical condition. The JCC accepted the Expert Medical Advisor’s opinion that the claimant was not temporarily totally disabled and that it was reasonable and necessary for claimant to continue care for the neck condition.
Summary: Dr. Maniscalco was appointed the Expert Medical Advisor in this case and testified the claimant was not temporarily and totally disabled. The claimant relied upon case law which holds that an injured employee is entitled to be paid temporary total disability, even if he were released to work with restrictions, where the employee was never told of his release by the authorized physician. The JCC noted that the issue before her was not whether any doctor told the claimant he could return to work, but rather whether the claimant was temporarily and totally disabled. The JCC found the Expert Medical Advisor opined the claimant was not TTD.
The JCC also accepted the EMA’s opinion that it was reasonable to continue care for the claimant’s neck or cervical complaints.
Lidia Maria Sanchez v. Mainguy Landscape Services/Florists’ Mutual Insurance Company
JCC Winn; Pensacola District; Order Date: February 25, 2016
OJCC Case: 15-015223MSW; D/A: 10/15/2014
Claimant’s Counsel: Victor Armstrong
Employer/Carrier’s Counsel: Kate Albin
Briefly: DEATH BENEFITS – JCC Winn granted the claim for death benefits and found the deceased workers’ mother is entitled to receive death benefits pursuant to Chapter 440.16 as a dependent, and rejected the Employer/Carrier’s argument that payment of death benefits to the deceased worker’s child absolved the Employer/Carrier of any and all liability for death benefits.
Summary: The JCC found that, while the Employer/Carrier has fully resolved its liability to the child having paid death benefits, there remains $45,504.94 of the $150,000.00 maximum death benefit for payment to claimant, the deceased worker’s mother. The JCC reserved jurisdiction to determine what period of time the claimant may remain entitled to death benefits.
The JCC specifically rejected the Employer/Carrier’s position that the existence of beneficiaries in a higher priority class resulted in exclusion of beneficiaries in a lower class. Instead, the JCC relied on the case of Johnson v. Johnson, 477 So. 2d 21 (Fla. 1st DCA 1985) and found that “members of a preferred class should be paid their full shares where possible and the members of lower priority classes are left to divide up those funds, if any, that remain”.
Sergio Rodriguez v. Rexel Holdings, USA/ESIS
JCC Sturgis; Ft. Myers District; Order Date: February 24, 2016
OJCC Case: 13-016857KAS; D/A: 10/24/2012
Claimant’s Counsel: Olimpia DePena
Employer/Carrier’s Counsel: Kimberly Proano
Briefly: MOTION TO DISMISS FOR LACK OF PROSECUTION; ATTORNEY’S FEES – JCC Sturgis denied the Motion to Dismiss for Lack of Prosecution and found good cause for claimant’s inaction in pursuing attorney’s fees.
Summary: The JCC found that the claimant continues to receive benefits for which fees are payable by the Employer/Carrier pursuant to a previous Final Merits Order. As such, the JCC found this was “good cause” for claimant’s inaction in pursuing attorney’s fees from the Employer/Carrier for the medical care awarded in the contents of the prior Final Merits Hearing Order.
The prior Final Order was dated April 8, 2014, and granted authorization of a neurologist to treat the claimant’s spine. Entitlement to attorney’s fees and costs from the Employer/Carrier was also awarded. The JCC found the medical payouts filed by the Employer/Carrier show continued payments to authorized physicians through December 23, 2015.
Lawrence Blake v. Elbrica, Inc./Zenith Insurance Company
JCC Lazzara; Tallahassee District; Order Date: February 24, 2016
OJCC Case: 15-002126JJL; D/A: 12/4/2013
Claimant’s Counsel: Maureen C. Proctor
Employer/Carrier’s Counsel: Matthew W. Bennett
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Lazzara awarded temporary partial disability benefits and found the claimant’s refusal to continue work after attempting to do so for several days was justified and understandable in view of the claimant’s physical work-related injuries and limitations.
Summary: The JCC reviewed a video of the job requirements for the position offered to the claimant following the accident. The JCC noted the job required a two-step process using two different machines and that some tasks involved both upper extremities and repetitive use of the right hand, contrary to the work restrictions imposed by the physicians. Further, the JCC found that, at times, the lifting requirements of the job exceeded the weight limit imposed by claimant’s physicians. Therefore, the JCC found that the claimant’s refusal to continue to work after attempting to do so for several days was justified and understandable.
The JCC also found that although a job search is not required for TPD benefits, the claimant did make efforts to look for work.