FL Case Law Summaries – 3/14/16
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JCC ORDERS
Rafael Berrios v. Winter Park Police Dept./Johns Eastern Company, Inc.
JCC Pitts; Orlando District; Order Date: March 11, 2016
OJCC Case: 14-016171NPP; D/A: 6/30/2014
Claimant’s Counsel: Paolo Longo, Jr.
Employer/Carrier’s Counsel: Karen J. Cullen
Briefly: MOTION TO COMPEL REQUEST TO PRODUCE (FACEBOOK POSTS) – JCC Pitts concluded that he does not have the authority to compel non-party Facebook to produce claimant’s social-network postings, photographs, or screen shots, but he does have authority to compel claimant to produce Facebook posts within discovery limitations.
Summary: The JCC noted that counsel for Facebook appeared telephonically and expressed Facebook’s objections to responding to the JCC’s prior order which directed the claimant to submit his Facebook posts for an in-camera inspection. Facebook asserted that according to 18 U.S.C. Section 2702(a)(1)(2) and (b)(1)-(8), (the Federal Stored Communications Act), a private party cannot compel production of the contents of the user’s electronic communications from service providers such as Facebook by service of subpoena or a court order. There is no exception under the Act for civil discovery demands. The JCC noted that this Act has been applied in Florida to protect Facebook from having to divulge private communications under Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015). Thus, the JCC concluded he could not compel Facebook to produce the records.
However, the JCC noted the Nucci decision held that the plaintiff could be compelled to produce the Facebook contact because generally photographs and screen shots on the social networking site are neither privileged nor protected by any right of privacy regardless of any privacy settings that the user may have established. The JCC noted that the Nucci case held that discovery of these postings is not unlimited or without temporal limitations.
As such, the JCC concluded that the Employer/Carrier is entitled to compel the claimant to produce his Facebook postings and screen shots for the period of time at issue. The JCC found the postings during this period are relevant and calculated to lead to discovery of admissible evidence. Furthermore, following an in-camera inspection of the postings, the JCC concluded that they do not contain privileged information.
Manuel Sainz v. ESI Group/Bridgefield Employers Insurance Company
JCC Lorenzen; Tampa District; Order Date: March 11, 2016
OJCC Case: 15-007666MAM; D/A: 4/8/2014
Claimant’s Counsel: Ivan Voronec
Employer/Carrier’s Counsel: David Beach
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS – JCC Lorenzen granted the claim for temporary partial disability benefits and rejected the Employer/Carrier’s affirmative defense of voluntary limitation of income as there was no evidence the Employer had work available for the claimant, claimant rejected an offer of employment, or that a job within claimant’s restrictions for which he was suited actually existed.
Summary: The JCC found the Employer’s assertion that claimant was terminated due to a lack of suitable work was irrelevant for the claim of temporary partial disability.
The JCC found that claimant proved he was not at maximum medical improvement, and that the work restrictions imposed upon him because of the compensable injury prevented from returning to his regular employment, leading to a loss of income. The JCC found the burden of proof remained on the Employer/Carrier to affirmatively show a lack of causal relationship by proving claimant voluntarily limited his income.
Lillie King v. Polk County School Board/Johns Eastern Company
JCC Sojourner; Lakeland District; Order Date: March 11, 2016
OJCC Case: 15-011227MES; D/A: 12/6/2011
Claimant’s Counsel: Carl Feddeler
Employer/Carrier’s Counsel: Warren Sponsler & Clare Arrington
Briefly: MISREPRESENTATION DEFENSE – JCC Sojourner denied the claim for medical treatment and found the claimant misrepresented her prior medical history to the authorized medical provider. The JCC found the claimant made a material misrepresentation for the purpose of obtaining workers’ compensation benefits.
Summary: The JCC found that the claimant misrepresented the existence of prior accidents in her medical history and in her initial deposition, and misrepresented her prior medical history to the treating physician.
She tried to explain this at the final hearing by saying she put things like this behind her and just doesn’t remember them. The JCC found the claimant’s testimony that she does not remember prior accidents or the symptoms she suffered from the prior automobile accident was not credible. The JCC found the claimant’s clear intent was to mislead the Employer/Carrier as to the existence of any back symptoms.
Salvador Reyes v. Coinmach Service Corp./Sedgwick CMS
JCC Sojourner; Lakeland District; Order Date: March 10, 2016
OJCC Case: 15-009313MES; D/A: 10/17/2014
Claimant’s Counsel: A. Dawn Hayes
Employer/Carrier’s Counsel: Barbi Feldman
Briefly: EMERGENCY CARE – JCC Sojourner ordered the Employer/Carrier to reimburse the claimant for out-of-pocket medical expenses and to make payments to the hospital for emergency care. The JCC found the care rendered to the claimant falls within the definition of emergency services and was medically necessary.
Summary: The JCC examined F.S. §440.13(1)(e) and case law authority including Cespedes v. Yellow Transportation Services, Inc., 130 So. 3d 243 (Fla. 1st DCA 2013) and found that the criteria to determine the emergency nature of medical care does not require a medical opinion, but includes those services undertaken to determine whether or not an emergency medical condition exists. The JCC found that the relevant questions are whether the services are provided by a licensed physician or others acting under his supervision; whether an evaluation or screening was conducted by that physician or those acting under his supervision; and whether the care was undertaken to determine if an emergency medical condition exists.
Here, the JCC found that emergency care was undertaken as MedExpress, the authorized providers, directed the claimant to go to the hospital for immediate evaluation. The JCC found the referral from MedExpress very clearly indicated that it was imperative the claimant immediately go to the nearest emergency room.
Jorge Luis Pena v. Florida Beauty Express Inc./Guarantee Insurance Company
JCC Hill; Miami District; Order Date: March 10, 2016
OJCC Case: 15-008603CMH; D/A: 4/4/2015
Claimant’s Counsel: Alejandro Zaldivar
Employer/Carrier’s Counsel: Rene Lopez
Briefly: COMPENSABILITY; AGGRESSOR DOCTRINE – JCC Hill denied compensability of the injury resulting from the altercation at work on the grounds the injury did not arise out of employment, because the work being performed was not a discernible or contributing cause of the injury sustained. The JCC also denied the “aggressor doctrine” defense.
Summary: The JCC found the claimant was acting within the course and scope of employment when the altercation occurred. The claimant was at the proper place of employment, at an appropriate time to fulfill his duties as a driver.
However, the JCC also found the claimant brought a private dispute to work over a personal transaction. The JCC found the personal transaction was negotiated earlier at the claimant’s residence with an employee of another company, and involved a monetary advance and the transfer of possession of a personal vehicle. The JCC found this dispute erupted into a physical confrontation over that private action, and not over any work assignment or any other Employer interests. The JCC found claimant’s employment contributed nothing of significance to the risk of injury.
The JCC explained that the location of the altercation at the Employer’s premises was but happenstance. The confrontation was going to take place either at work, at the claimant’s residence, or another location.
The JCC also denied the aggressor doctrine defense and found that the altercation was proceeded by an unpleasant phone exchange earlier that morning and escalated with harsh exchange of words.
Darline Bellagamba v. Security Associates, Inc./Gallagher Bassett Services, Inc.
JCC Sojourner; Lakeland District; Order Date: March 10, 2016
OJCC Case: 08-002029MES; D/A: 12/18/2005
Claimant’s Counsel: Laurie Thrower Miles
Employer/Carrier’s Counsel: Christopher Petruccelli
Briefly: PERMANENT TOTAL DISABILITY – JCC Sojourner awarded permanent total disability benefits and found the claimant established through a good faith job search that she is unable to find employment within her restrictions within a fifty mile radius of her residence.
Summary: The JCC accepted the vocational expert testimony of Ms. Joey Kilpatrick on behalf of the claimant. It was her opinion that there was very limited sedentary work available within the claimant’s restrictions given the claimant’s work history and education. The claimant testified she looked for jobs she felt were appropriate and applied for those positions.
The JCC noted the Employer/Carrier’s vocational expert, Ms. Gerri Pennachio, testified that job placement assistance can be valuable as it can help a claimant locate and obtain appropriate work. The JCC noted that no such assistance was offered to the claimant despite the carrier being aware that claimant was looking for work for over a two-year period of time.
The JCC also noted Ms. Pennachio testified that at the time of the injury the Employer offers the best opportunity for re-employment. The claimant testified that she applied for a position with the Employer but was not offered a job.
Ana Rodriguez v. Paradise Hotels MGMT, LLC/Twin City Fire Insurance Company
JCC Beck; Sarasota District; Order Date: March 10, 2016
OJCC Case: 14-017052DBB; D/A: 6/25/2014
Claimant’s Counsel: Eric M. Christiansen
Employer/Carrier’s Counsel: Melissa A. Volk
Briefly: AUTHORIZATION OF MEDICAL TREATMENT – JCC Beck denied the request for evaluations by an ENT and neurologist and found the claimant failed to satisfy her burden of proof that the evaluations are reasonably required to determine the cause and extent of the claimant’s injuries.
Summary: The JCC accepted the opinion of Dr. Ashvin Patel, authorized treating physician, and the consistent opinion of Dr. John Cassidy, Employer/Carrier’s IME neurosurgeon, over that of Dr. James Shortt, claimant’s orthopedic IME, because both Dr. Patel and Dr. Cassidy reviewed the MRI.
Dr. Patel and Dr. Cassidy agreed that the claimant’s symptoms do not correlate to the MRI findings and that an evaluation with an ENT or neurologist is not recommended because the claimant did not exhibit any condition or symptom that would warrant either of those evaluations.