FL Case Law Summaries (3/1/16)
BY:
To receive daily e-mails with case law summaries, e-mail: Colette Duke
JCC ORDERS
William A. Lister v. New Line Transport, LLC/Gallagher Bassett Services
JCC Almeyda; Miami District; Order Date: February 26, 2016
OJCC Case: 15-026928ERA; D/A: 11/14/2013
Claimant’s Counsel: Thomas F. Condon & William A. Heller
Employer/Carrier’s Counsel: James Birmingham
Briefly: OUT OF STATE ACCIDENT; JURISDICTION – JCC Almeyda dismissed the Petitions for Benefits and found the necessary jurisdictional nexus with the State of Florida does not exist in this out of state accident and that the JCC does not have subject matter jurisdiction.
Summary: The JCC cited the case of Hazealeferiou v. Labor Ready 947 So. 2d 599 (Fla. 1st DCA 2007), where the 1st DCA stated that a “claimant injured in an employment accident outside Florida is entitled to compensation under Chapter 440 only if one of the following two factors are established: (1) The contract of employment was made in Florida or (2) The claimant’s employment was principally localized in Florida”.
The JCC found that the evidence was clear that the contractual agreement was entered into and finalized outside the State of Florida. The JCC noted that the elements for the establishment of the contract, including the execution of documents and the orientation all occurred in Alabama.
The JCC also found that the claimant was an over the road owner-operator who covered several states, including Florida. Out of fifty-nine loads, he only had contact with Florida in twelve loads. The JCC found this evidence showed that the Florida contact in this “employment” was incidental, and not principally localized within Florida.
Raquel Machin v. DHL Express/Sedgwick CMS
JCC Massey; Tampa District; Order Date: February 26, 2016
OJCC Case: 15-013154MAM; D/A: 11/1/2013
Claimant’s Counsel: Ricardo Morales
Employer/Carrier’s Counsel: Robert Rodriguez
Briefly: PERMANENT TOTAL DISABILITY– JCC Massey granted the claim for PTD and found the claimant established she is unemployable based on her physical restrictions combined with vocational factors such as age, education, work experience and lack of transferable skills.
Summary: The JCC found that the claimant did not prove medical incapacity to engage in at least sedentary employment. Further, the JCC found there was insufficient evidence of a lengthy but unsuccessful job search.
However, the JCC accepted the vocational opinion of the claimant’s expert, John Roberts, regarding the claimant’s vocational weaknesses including her age (63), the fact that she has not worked since 2014, the claimant’s past training in data entry and dental assistant is outdated, she has significant physical restrictions, and she is not very good at typing or using computers. The JCC found that the claimant is unemployable and that the claimant meets the definition of permanent total disability under the third prong of Blake v. Merck & Co. 43 So. 3d 882 (Fla. 1st DCA 2010).
Deborah Hackett v. Florida School for the Deaf and Blind/Division of Risk Management
JCC Humphries; Jacksonville District; Order Date: February 26, 2016
OJCC Case: 15-009010RJH; D/A: 12/1/2014
Claimant’s Counsel: Holley Akers
Employer/Carrier’s Counsel: Lawrence Feinstein
Briefly: MAJOR CONTRIBUTING CAUSE; TEMPORARY PARTIAL DISABILITY – JCC Humphries denied evaluation of the claimant’s arachnoid cyst by a neurosurgeon and accepted the opinion of Dr. Brian Haycook, authorized orthopedist, that an arachnoid cyst is not consistent with anything that would develop from trauma. The JCC denied temporary partial disability because the claimant, by her own admission, missed work due to her own decision not to work rather than orders of her physicians.
Summary: The JCC accepted the opinion of the authorized orthopedist, Dr. Haycook, that an arachnoid cyst was something that would not fall within the purview of Workers’ Compensation and was not the result of the claimant’s injury. The JCC noted that Dr. Haycook was “very confident in his opinion” that the cyst was unrelated to the workplace accident.
The Employer Representative testified that there was work available to the claimant within her restrictions. Unfortunately, despite these accommodations, the claimant missed time from her work as a result of pain she attributed to her workplace injuries, rather than the orders of her physicians. The JCC found that subjective, medically unverified testimony standing alone is insufficient to support an award of Temporary Partial Disability benefits. The JCC noted there were no circumstances other than the claimant’s complaints of pain which would excuse the lack of work effort.
Marcel Clay v. US Foundry/Employer’s Mutual Inc. and Gallagher Basset Services
JCC Medina-Shore; Miami District; Order Date: February 26, 2016
OJCC Case: 01-013139SMS; D/A: 3/26/1982
Claimant’s Counsel: Douglas H. Glicken
Employer/Carrier’s Counsel: Robert Friedman
Briefly: ATTENDANT CARE; CHIROPRACTIC TREATMENT – JCC Medina-Shore awarded non-professional attendant care services pursuant to the recommendations of Dr. Yates, the authorized treating neurosurgeon, and ordered authorization of chiropractic treatment for one month for this 1982 injury.
Summary: The JCC found that the only reason the Employer/Carrier did not authorized attendant care was that Dr. Yates did not write his opinion on a “prescription” pad. The JCC rejected this position and found that James W. Windham Builders, Inc. v. Overloop, 951 So. 2d 2007 (Fla. 1st DCA 2007) held that if the Carrier becomes aware that the claimant’s physician is prescribing attendant care, but has not done so in writing, the Employer/Carrier may not avoid payment by willful ignorance.
Further, the JCC found that Florida Statute §440.13(2)(b) does not require that a physician’s written prescriptions for attendant care be on a “prescription pad”. Rather, the JCC found that the statute requires a physician to reduce his prescription or recommendation for attendant care in writing.
The JCC noted that the Employer/Carrier has in the past authorized and paid for chiropractic treatment of the claimant’s compensable conditions. The JCC accepted Dr. Yates’ opinion as well as the opinion of the claimant’s chiropractor, Dr. Fleischer, and ordered unlimited treatment for one month of chiropractic care. The JCC allowed the Carrier to select the chiropractor and found that the claimant did not provide good cause for selection of a chiropractor of her choosing.