FL Case Law Summaries – 2/3/16
By:
JCC ORDERS
Jonathan Brown v. Palm Beach County BOCC and Palm Beach County Fire/Preferred Government Claims Solutions
JCC D’Ambrosio; West Palm Beach District; Order Date: February 1, 2016
OJCC Case: 14-022337MAD; D/A: 8/11/2005 & 8/5/2014
Claimant’s Counsel: Michael Clelland
Employer/Carrier’s Counsel: Lyle Platt
Briefly: 120-DAY RULE; BREAK IN CHAIN OF CAUSATION– JCC D’Ambrosio found the claimant suffered a compensable heart condition in 2005 which evolved into the aneurism suffered in 2014. The JCC found the Employer/Carrier is barred from denying compensability of either date of accident as they are both part of the same occupational disease claim under F.S. §112.18, wherein the Employer/Carrier paid benefits under the 2005 date of accident for nearly ten years.
Summary: The JCC found that the Employer/Carrier could have easily discovered information related to the claimant’s heart disease condition within 120 days of its first provision of benefits under the 2005 date of accident. The initial treating physician, Dr. Vedere, testified that had someone called him in 2005 during the 120 day investigation period and asked him about the cause of the condition, he would have advised that this was a congenital condition.
Further, the JCC found the Employer/Carrier did not establish material facts relevant to the issue of compensability that it could not have discovered through a reasonable investigation within the 120 day period under F.S. §440.20(4). The JCC found the Employer/Carrier made a minimal effort to ascertain the major contributing cause of the need for treatment for ten years.
The JCC found that the claimant’s condition since 2005 evolved into the eventual aneurism that required surgical care in 2014, and that the Employer/Carrier failed to prove a break in the causation chain.
Lucia Contreras v. Miami-Dade County School Board/Gallagher Bassett Services, Inc.
JCC Medina-Shore; Miami District; Order Date: February 1, 2016
OJCC Case: 15-007002SMS; D/A: 11/19/2014
Claimant’s Former Counsel: Jesse Casher
Employer/Carrier’s Counsel: Henry Suarez
Briefly: ATTORNEY’S FEES AND COSTS LIEN – JCC Medina-Shore denied the charging fee lien against the pro se claimant and found there was no evidence that claimant’s former counsel’s work contributed to or led to securing any benefits or the agreed to lump-sum settlement.
Summary: The JCC found that former counsel undertook approximately six hours of work in representation of the claimant, but there was no evidence that said work contributed to or led to securing benefits for the agreed to lump-sum settlement which occurred eight months after he filed a Motion to Withdraw. The JCC found former counsel was not owed an attorney’s fee from the claimant.
The JCC also found that claimant’s former counsel did not admit into evidence an itemization of costs, but permitted him to file an itemization of costs post-hearing to be deducted from the lump-sum settlement.
Edward Lamar v. W.S. Badcock Corporation/Commercial Risk Management, Inc.
JCC Sojourner; Lakeland District; Order Date: February 1, 2016
OJCC Case: 14-021858MES; D/A: 2/25/2014
Claimant’s Counsel: E. Taylor Davidson
Employer/Carrier’s Counsel: Juliana Curtis
Briefly: 120-DAY RULE; MAJOR CONTRIBUTING CAUSE – JCC Sojourner found the Employer/Carrier did not waive its right to deny the causal relationship between the recommended treatment and the compensable injury under the 120-day pay and investigate provision. The JCC denied the claim for authorization of a right shoulder surgery and accepted the Expert Medical Advisor’s opinion that the claimant reached maximum medical improvement from his causally related injury and does not require additional treatment for the same.
Summary: The JCC found that a waiver under the 120 day pay and investigate provision of F.S. §440.20(4) applies only to the concept of compensability under Checkers Restaurant v. Wiethoff, 925 So. 2d 348 (Fla 1st DCA 2006). The Employer/Carrier still retains the right to challenge the causal relationship between the compensable injury and the condition for which the worker seeks benefits.
The Expert Medical Advisor, Dr. Patrick Horan, was appointed to resolve the dispute between the opinions of Dr. Halpern and Dr. Fiore. The Expert Medical Advisor opined that the claimant had a pre-existing, unrelated avascular necrosis and stated that the claimant would require surgery, but that the compensable injury was not the cause of avascular necrosis or the need for treatment.
Virgilee B. McAllister v. Glades Correctional Institution/State of Florida – Division of Risk Management
JCC Punancy; West Palm Beach District; Order Date: January 29, 2016
OJCC Case: 09-030404SHP; D/A: 9/4/2007
Claimant’s Counsel: Kenneth E. Ehrlich
Employer/Carrier’s Counsel: K. Kay Dodd
Briefly: MISREPRESENTATION DEFENSE – JCC Punancy terminated workers’ compensation benefits pursuant to the misrepresentation defense, F.S. §440.105(4)(b) and F.S. §440.09(4), and found the claimant knowingly and intentionally misrepresented her physical restrictions, mental state, emotional state, and activity level to the authorized treating psychiatrist for the purpose of securing workers’ compensation benefits.
Summary: The claimant’s authorized treating psychiatrist opined the claimant’s presentation and, more importantly for substantive purposes, her express statements in his office were inconsistent with surveillance evidence. The doctor opined that the claimant’s demonstrations on video were inconsistent with her numerous and express representations relied upon by the physician when rendering the diagnosis of Major Depression Disorder.
Although rendered moot by the findings with regard to misrepresentation, the JCC also found that the claimant is no longer entitled to temporary benefits until she has attained statutory maximum medical improvement under Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla 1st DCA 2013). Also, the JCC found that there was insufficient evidence to support a finding of permanent total disability or that the claimant satisfied any of the requirements under Blake v. Merck and Company, 43 So. 3d 882 (Fla 1st DCA 2010).
Patricia Croizat v. Bank of America/Gallagher Bassett Services, Inc.
JCC Spangler; Tampa District; Order Date: January 29, 2016
OJCC Case: 13-029760EDS; D/A: 7/1/2013
Claimant’s Counsel: Gregory Milenkevich
Employer/Carrier’s Counsel: Pamela Walton
Briefly: COMPENSABILITY; NO ACCIDENT OR INJURY – The claimant alleged she injured her neck as the result of the ergonomic set-up of her work station and moving her head back and forth. JCC Spangler found the alleged accident was not compensable and did not arise out of employment.
Summary: The claimant is a mortgage loan processer who alleged a neck injury as a result of moving her head back and forth. The JCC found that the claimant’s contention that the ergonomic set-up of her work station caused undue stress and placed her at greater risk than a normal person for injury was not competent evidence to establish that the injury arose out of employment. The JCC found that the claimant’s testimony was not supported by an acceptable expert opinion.
The JCC noted that the medical opinion of the claimant’s IME physician was based only on the claimant’s version of facts and that the doctor was not informed as to all relevant medical findings regarding the claimant’s condition. The doctor did not know of objective medical evidence in the form of an MRI that suggested the claimant had findings consistent with degenerative disk disease in her neck prior to the alleged accident.
Julio Leon v. Hemisphere World Wide Sales/Travelers Insurance
JCC McAliley; Port St. Lucie District; Order Date: January 29, 2016
OJCC Case: 13-028573RDM; D/A: 9/10/2012
Claimant’s Counsel: Joseph Perea
Employer/Carrier’s Counsel: Patricia E. Perez
Briefly: AUTHORIZATION OF SURGERY; TTD/TPD – JCC McAliley denied the claim for provision of medial nerve surgery and accepted the opinion of the Expert Medical Advisor that medial nerve surgery is not indicated. The JCC also denied temporary total disability/temporary partial disability benefits and found that maximum medical improvement was reached.
Summary: The JCC accepted the opinion of the Expert Medical Advisor, Dr. Phillips B. Cummings, over that of Dr. Askari, the authorized hand and upper extremity physician. The JCC noted that the EMA physician testified that the hardware in the claimant’s wrist should not be removed and that further carpal tunnel or medial nerve surgery is not indicated. The JCC also noted that the Employer/Carrier’s IME physician, Dr. Kenneth J. Easterling, likewise opined that the claimant would not benefit from removal of hardware in the wrist and that a repeat carpal tunnel release is not warranted.
The JCC found that all five hand specialists involved in the case found the claimant to be at maximum medical improvement absent further surgery. Accordingly, the request for temporary disability benefits was denied.
Anibal Santiago-Arroyo v. Baycare Health/Commercial Risk Management, Inc.
JCC Sojourner; Lakeland District; Order Date: January 29, 2016
OJCC Case: 13-026822MES; D/A: 8/30/2013
Claimant’s Counsel: Craig O. Stewart
Employer/Carrier’s Counsel: Warren K. Sponsler
Briefly: MAJOR CONTRIBUTING CAUSE; VOLUNTARY LIMITATION OF INCOME – JCC Sojourner found that the major contributing cause issue should not be considered as there was no treatment or disability for claimant’s neck prior to the industrial accident and that the claimant did not have a pre-existing condition as defined by the case law. Notwithstanding this finding, the JCC also found that clearly from a medical standpoint, the claimant had a pre-existing disk disease. The JCC found the Employer/Carrier did not offer any evidence that the Employer continued to have work available or that the claimant refused work and therefore denied the voluntary limitation of income defense.
Summary: The JCC explained that the initial inquiry in this case was whether or not there was a pre-existing condition. The JCC cited the case of Certistaff In. v. Owen, 40 FLW D2754 (Fla 1st DCA December 11, 2015), and found that when a claimant has a pre-existing condition not related to an earlier work place injury, it is appropriate to consider whether the work place injury at issue is the major contributing cause of the need for treatment. The JCC found the claimant was totally asymptomatic, had no treatment or disability for his neck prior to the industrial accident, and that he did not have a pre-existing condition as defined by case law.
Although the Employer/Carrier raised the voluntary limitation of income defense, the JCC found the carrier did not offer any evidence that the Employer continued to have work available or that the claimant refused work. Instead, the claimant testified that he called his Employer and told them he could not continue to drive a truck and was going to turn the truck in and resign, and that he called a few other companies to see if he could find work but was not offered employment.
John D. O’Neal, Sr. v. Meadowbrook Meat Company, Inc./MBM Corporation/Sedgwick CMS
JCC Rosen; St. Petersburg District; Order Date: January 29, 2016
OJCC Case: 12-020122SLR; D/A: 9/2/2011
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Michael Rowe
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Rosen denied the claim for compensability of the claimant’s neck injury and accepted the opinions of various physicians over the claimant’s independent medical examiner that the claimant did not suffer a compensable cervical cord injury in the industrial accident. The JCC did note, however, that the claimant had a compensable injury with regard to his right shoulder and is entitled to palliative care.
Summary: With regard to the alleged neck injury, the JCC rejected the claimant’s IME physician, Dr. Richard Smith, who did not review any of the medical records of the prior physicians and did not review the MRI films themselves, but relied on the report of the radiologist. Dr. Smith’s opinion was the claimant had a cervical condition including herniated disks that were caused by the industrial accident and were traumatically induced, not degenerative in nature. Dr. Smith relied on the history the claimant gave him of neck pain from the date of accident. However, the JCC found the evidence does not support a finding that the claimant complained of neck pain from the date of accident and did not reveal a single complaint concerning the neck.
The JCC noted that this claimant was familiar to the court and that the court had considered multiple prior proceedings in this claim. The JCC noted that on this date of accident the claimant’s main complaints related to his right arm and that in the JCC’s prior order of May 2013, the JCC detailed a rendition of the claimant’s complaints at that time which did not reveal a single complaint of neck pain. By November 18, 2013, another final order was entered wherein the only reference to the claimant’s neck was in a report from another physician who indicated that a cervical evaluation should be undertaken. The JCC accepted the opinion of Dr. Meinhardt, a physician authorized to evaluate the claimant’s cervical spine, that the claimant’s cervical condition is not related to the industrial accident.