FL Case Law Summaries – 2/6/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
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1st DCA ORDERS
RetailFirst Insurance Co. and ServPro of S.E. Florida v. Brenton Davis
JCC Lorenzen: Tampa District Opinion Date: January 23, 2017
OJCC Case: 15-014011EHL Date of Accident: 6/13/14
Claimant’s Counsel: Bill McCabe Employer/Carrier’s Counsel: Laralee M. Garvin and David K. Beach
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: One Time Change – The First DCA ruled that the one time change provision of the statute does not entitle the Claimant to a change in specialty. Regardless of whether the Employer/Carrier responds timely to the one time change request, the Claimant is only entitled to choose a physician in the same specialty.
Summary: The Employer/Carrier failed to timely respond to the Claimant’s one time change request and the Claimant contended that he was then entitled to select a physician from a different specialty. The First DCA ultimately reversed the JCC decision and ruled that Florida Statute § 440.13(2)(f) does not entitle to the Claimant to select a physician from a different specialty. The Court focused on the second sentence of the statute which states, “Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier.” The use of the words “same specialty” implied that the statute was written only to allow a Claimant to select a physician from the same specialty.
JCC ORDERS
Bontia Brinson v. Hospital Housekeeping Systems, LLC/Safety National Casualty Corp.
JCC Lazzara: Tallahassee District Order Date: January 20, 2017
OJCC Case: 15-027649JJL Date of Accident: 6/29/15
Claimant’s Counsel: Paul Anderson Employer/Carrier’s Counsel: Gwen Jacobs
JCC Order: Click Here
Briefly: Compensability (intoxication) – The Claimant suffered a left shoulder injury as the result of a fall during her work as a hospital housekeeper. The Claimant failed the post accident drug test and was later terminated as a result of the test. The JCC determined that the Claimant failed to rebut the presumption that the accident was caused due to her intoxication and denied all benefits.
Summary: The Claimant was sent to a walk in clinic for a drug test and medical treatment after her workplace injury. When she was informed that a drug test was required, the Claimant became irate and disruptive. The Claimant ultimately gave a urine sample but the clinic refused to treat the Claimant due to her disruptive behavior. The drug test ultimately came back positive for marijuana and the Employer/Carrier denied the claim under the intoxication defense.
The Claimant attempted to rebut this presumption on two grounds but both would ultimately fail. First, the Claimant repeatedly denied any marijuana use and that any positive test was the result of being around other people who smoked. JCC Lazzara found this testimony along with much of the other testimony from the Claimant to lack any credibility. Secondly, the Claimant introduced evidence from a Pharmacutial IME, Dr. Dovena Lazaridis, stating that while there was marijuana in the Claimant’s system, it was not “active” at the time of the accident. Therefore, the marijuana could not be deemed to have caused or contributed to the accident. The JCC rejected this defense because Fla. Stat. § 440.09(7)(b) does not require the drug be active at the time of injury. The statute simply states that a “positive confirmation of a drug” gives rise to the presumption that the injury was “occasioned primarily by the influence of the drug upon the employee.” That requirement was met in this situation and the Claimant failed to overcome the statutory presumption. All benefits were therefore denied.
Magdy Shenouda v. Mettler Toledo, LLC, Mettler Toledo LLC/York Risk Services Group
JCC Lorenzen: Tampa District Order Date: January 23, 2017
OJCC Case: 13-012281EHL Date of Accident: 2/4/13
Claimant’s Counsel: Bradley Smith Employer/Carrier’s Counsel: Shawn Diedrich
JCC Order: Click Here
Briefly: Expert Opinion & Indemnity Benefits – Dr. Howard Scharf was assigned as the Orthopedic EMA and opined that the Claimant had no work restrictions related to his low back or rib fractures but would have work restrictions if the Claimant was diagnosed with complex regional pain syndrome (CRPS), aka reflex sympathetic dystrophy (RSD). The Claimant was subsequently diagnosed with CRPS by the authorized pain management physician. The JCC awarded indemnity benefits ruling that Dr. Scharf’s opinion was sufficient to constitute placing the Claimant on work restrictions and because the Employer/Carrier’s failed to deny the CRPS with the 120 day period.
Summary: The carrier accepted compensability of claimant’s low back injury and left rib fracture and authorized medical care with several physicians. The Employer/Carrier asserted that no indemnity payments were due because neither the EMA, Dr. Scharf, or the authorized pain management physician placed the Claimant on either no-work or light duty status. The JCC ruled Dr. Scharf’s statement that the Claimant would have restrictions if he were diagnosed with CRPS was sufficient due to the Claimant’s subsequent diagnosis. Additionally, the JCC noted that it is common knowledge that workers diagnosed with CRPS are incapable of working without limitations. Regardless of these findings, the Employer/Carrier was precluded from denying the compensability of the CRPS because they failed to deny the claim within 120 days of the diagnosis. The JCC therefore awarded all requested indemnity benefits.
Cheryle Bracy v. Department of Veterans Affairs/Amerisys
JCC Weiss: Ft. Myers District Order Date: January 26, 2017
OJCC Case: 16-016390JAW Date of Accident: 8/18/15
Claimant’s Counsel: Brian Sutter Employer/Carrier’s Counsel: Tania Ogden
JCC Order: Click Here
Briefly: Indemnity Benefits – The JCC found the Claimant was entitled to TPD benefits and that the Employer/Carrier failed to prove the Claimant voluntarily limited her income.
Summary: It was undisputed that the Claimant was assigned work restrictions for the contested time period. However, the Employer/Carrier denied indemnity benefits based on the Claimant’s voluntary limitation of income. The Employer/Carrier contended that no additional indemnity benefits were due after the Claimant resigned from the Employer once she began receiving Social Security benefits. Despite the resignation from work, the JCC found that the Employer/Carrier’s failure to prove the availability of light duty work precluded a ruling that the Claimant voluntarily limited her income. TPD benefits were therefore granted.