FL Case Law Summaries – 3/10/16
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1ST DCA ORDERS
Brian Gonzalez v. St. Lucie County – Fire District/Florida Municipal Insurance Trust – Florida League of Cities, Inc.
Appeal of the Order from JCC Robert McAliley
DCA Order Date: March 8, 2016
Case: 1D15-3185; D/A: 9/4/2013
Appellant’s Counsel: Bill McCabe & Tonya A. Oliver
Appellee’s Counsel: Alan D. Kalinoski
Briefly: PRESUMPTION UNDER F.S. §112.18 – The 1st DCA reversed and remanded JCC McAliley’s determination that the Employer/Carrier successfully rebutted the presumption under F.S. §112.18. The DCA held that, in this case involving the diagnosis of AVNRT, although the congenital nature of the physiological abnormality is sufficient to rebut the presumption, the cause of the “trigger” to bring on tachycardia must also be determined. The DCA explained that the JCC did not make a specific finding regarding whether the Employer/Carrier overcame the presumption by establishing there was one or more possible non-occupational causes for the “trigger”.
Summary: The DCA cited the recent case of Mitchell v. Miami-Dade County, Case 1D15-2153 (Fla. 1st DCA February 23, 2016) where the DCA addressed the statutory presumption in the context of a claim involving the same dual AV node physiology and similar medical evidence regarding the need for both the congenital abnormality and a trigger to bring on the tachycardia, and set forth the proper analysis when the evidence includes a complicating factor of the trigger.
The DCA noted the evidence establishes that AVNRT is a heart disease involving a congenital abnormality of the heart characterized by an extra electrical pathway (dual AV node physiology) which causes tachycardia when there is a triggering event. Here, as part of his findings, the JCC concluded the claimant’s congenital condition is the heart disease, which is contrary to the medical evidence. Instead, the evidence establishes AVNRT is the heart disease. Thus, as in Mitchell, both factors identified as necessary to produce the heart disease of AVNRT – the physiological abnormality and the trigger – must be addressed. In other words, although the congenital nature of the physiological abnormality is sufficient to rebut the presumption, the cause of the trigger must also be determined.
JCC ORDERS
Kelvin Klock v. Como Oil Company/York Risk Services Group
JCC Dietz; Sebastian-Melbourne District; Order Date: March 8, 2016
OJCC Case: 15-020277RLD ; D/A: 10/8/2014
Claimant’s Counsel: Olivia Devonmille
Employer/Carrier’s Counsel: Blake Hood
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Dietz granted the claim for temporary partial disability benefits and denied the defense that the claimant voluntarily limited his income.
Summary: The JCC found it was the Employer/Carrier’s burden to prove the claimant refused work or voluntarily limited his income and that no such proof was provided. The JCC denied the defense that the claimant voluntarily limited his income based upon the claimant’s offer to work part-time after his surgery, the claimant’s trips to the company and telephone calls to the manager to inquire about work availability, and the total lack of evidence indicating the Employer offered any light duty work during the time period in dispute.
The JCC cited various case law for the premise that once an injured employee leaves his or her employment because of physical limitations arising from the compensable injury, such departure does not constitute voluntary limitation of income. Further, the JCC cited case law authority on issues of retirement and voluntary limitation of income as it relates to temporary partial disability benefits.
Romel Alvarez v. HT Hackney Company/Travelers Insurance
JCC Medina-Shore; Miami District; Order Date: March 8, 2016
OJCC Case: 04-026247SMS; D/A: 7/18/2003
Claimant’s Counsel: Raul De La Heria
Employer/Carrier’s Counsel: Susan Arrick & William Goran
Briefly: ATTORNEY’S FEES – JCC Medina-Shore awarded an attorney’s fee in the amount of $28,630.00 on this 2003 claim based upon $350 hourly rate and 81.8 hours of reasonably expended attorney time.
Summary: The JCC applied various Lee Engineering factors and found that an upward deviation from the statutory guideline fee was warranted. The JCC awarded an attorney’s fee of $28,630.00 based upon 81.8 hours of attorney time multiplied by $350 for the hourly rate. A guideline fee on the amount of benefits secured was $5,405.04.
The JCC found the Employer/Carrier’s actions in this case made the surgical question involved difficult for claimant’s counsel as the Employer/Carrier asserted various defenses, including a managed care defense. The JCC found the skill level required to prevail in this case was high and noted numerous positive factors under the Lee Engineering analysis. The JCC found that claimant’s counsel is a 20-year workers’ compensation practitioner who is well respected in the legal community and whose legal abilities are excellent. The JCC rejected defense counsel’s testimony that the hourly rate should be in the range of $200-275 and accepted claimant’s counsel’s testimony that the hourly rate should be $300-350 per hour.