FL Case Law Summaries – 3/21/16
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1ST DCA ORDERS
THG Rentals & Sales of Clearwater, Inc./Summit Holdings-Claims Center v. James C. Arnold
Appeal of the Order from JCC Stephen L. Rosen
DCA Order Date: March 17, 2016
Case: 1D15-970; D/A: 8/6/2013
Appellant’s Counsel: H. George Kagan
Appellee’s Counsel: Bradley G. Smith & Wendy S. Loquasto
Briefly: MISREPRESENTATION DEFENSE – The 1st DCA affirmed in part, and reversed in part, JCC Rosen’s order rejecting the Employer/Carrier’s misrepresentation defense and awarding benefits to the claimant. The DCA held that the JCC too narrowly analyzed the Employer/Carrier’s misrepresentation defense and did not afford the Employer/Carrier the 10-day period for amending its defense under Rule 60Q-6.113(2)(h). The DCA stated that if the claimant makes “any” misrepresentation for the purposes of obtaining benefits, then he is barred from entitlement to benefits.
Summary: The 1st DCA held that the JCC too narrowly analyzed the Employer/Carrier’s defense by considering only whether the alleged misrepresentation related to the claimant’s knee. The 1st DCA stated; “The JCC apparently believed that to prove misrepresentation, the Employer/Carrier had to link the allegedly false statements directly to the particular injury and benefits being sought, to the claimant’s knee in this instance. But such a requirement is not found in the law.” The DCA explained that if the claimant makes “any” misrepresentation for the purposes of obtaining benefits, then he is barred from entitlement to benefits, even if the misrepresentation is unrelated to his knee injury or benefits based on that injury.
Additionally, the DCA cited Rule 60Q-6.113(2)(h) as requiring any affirmative defense, and any defense raised pursuant to F.S. §440.09(4)(a) and §440.105, to be raised with specificity detailing the conduct giving rise to the defense, with leave to amend within ten days. The DCA explained that the Employer/Carrier in the present case initially asserted that it was denying the entire claim based on “misrepresentation” with nothing more. Then, in the pretrial stipulation, the Employer/Carrier only identified two broad categories of alleged misrepresentation, “physical abilities” and “post-accident earnings”, without detailing the misrepresentative conduct. The DCA held the Employer/Carrier failed to identify any statement upon which it was basing its misrepresentation and, thus, the Employer/Carrier did not plead its defense in sufficient detail to satisfy the Rule.
However, the DCA also held that the JCC cannot simply strike the Employer/Carrier’s defense without affording the rule-prescribed 10-day period for amending its defense. The case was remanded with instructions to the JCC to give the Employer/Carrier ten days to amend its pleadings, and thereafter to give the claimant an opportunity to object/respond to the affirmative defense with specificity.
JCC ORDERS
Darra Brown v. Rayfield Family Literacy
JCC Castiello; Miami District; Order Date: March 17, 2016
OJCC Case: 15-019127GCC; D/A: 7/15/2015
Claimant’s Counsel: Mark Dickstein
Employer’s Counsel: None
Briefly: ATTORNEY’S FEES AND COSTS FOR EMPLOYER’S FAILURE TO ATTEND STATE MEDIATION – JCC Castiello awarded an attorney’s fee for sanctions in the amount of $3,165, based on an hourly rate of $300, plus costs, for the Employer’s failure to attend the mediation and failure to attend the hearing on the show cause.
Summary: The JCC awarded claimant’s counsel 10.55 hours of time for his efforts related to attending the state mediation, preparing his client, and attending the order to show cause hearing. The JCC awarded claimant’s counsel an hourly rate of $300 per hour as reasonable and appropriate.
Adrian Murphy v. Labor Finders/Guarantee Insurance Company
JCC Medina-Shore; Miami District; Order Date: March 17, 2016
OJCC Case: 15-014994SMS; D/A: 5/14/2014
Claimant’s Counsel: Bobby Wells
Employer/Carrier’s Counsel: Jessica Blydenburgh
Briefly: COMPENSABILITY; CLAIMANT REFUSED POST-ACCIDENT DRUG TESTING – JCC Medina-Shore granted the claim for compensability of the injury and found the evidence did not show the Employer had any reason to suspect the claimant’s injury was occasioned primarily by intoxication or use of drugs or that the use of any drug affected the claimant to the extent that his normal faculties were impaired. Therefore, the JCC found the Employer had no right to subject the claimant to a drug test.
Summary: In this case, the Employer did not implement a drug-free workplace. The JCC accepted the claimant’s testimony that upon reporting his finger injury, the Employer did not question the accident or injury, rather, the Employer required claimant to sign paperwork, which included alcohol/drug testing. The JCC further accepted the claimant’s testimony that he did not refuse to undergo the alcohol/drug test, but he did desire immediate medical attention for his finger which was bleeding and quite painful.
The JCC found there was no medical or lay evidence substantiating claimant was intoxicated or impaired in any way when the accident occurred. Further, the JCC found there was no medical evidence reflecting claimant was somehow impaired at the time of hospitalization.
Because the defense hinged on the Employer suspecting claimant was exposed to second-hand marijuana based solely on claimant’s statement, a statement the claimant denied making, there was no evidence to support the Employer’s position. The JCC found the Employer had no right to subject the claimant to a drug test under F.S. §440.09(7)(a) which states:
…if the Employer has reason to suspect that the injury was occasioned primarily by the intoxication of the employee or by the use of any drug… which affected the employee to the extent that the employee’s normal faculties were impaired, and the Employer has not implemented a drug-free workplace… the Employer may require the employee to submit to a test for the presence of any or all drugs or alcohol in his or her system.
Ramiro Martinez v. A.P. Services USA, LLC/Convergence Employee Leasing, III, Inc., JJ Road Feeder, Guarantee Insurance Company and Normandy Insurance Company
JCC Almeyda; Miami District; Order Date: March 17, 2016
OJCC Case: 15-013912ERA; D/A: 6/4/2015
Counsel for Claimant: Michael D. Goldstein
Counsel for JJ Road Feeder: Kurt Wirsing
Counsel for Convergence Employee Leasing, III, Inc.: Michael Edwards
Briefly: EMPLOYER/EMPLOYEE RELATIONSHIP – JCC Almeyda found that JJ Road Feeder is the responsible Employer to furnish the claimant with workers’ compensation benefits and found there was no legally established employee leasing agreement between JJ Road Feeder and A.P. Services USA, and that the claimant established he was performing duties for JJ Road Feeder at the time of the accident.
Summary: The JCC found the claimant was caught in a “shell game” of Employers and coverage, in which no one was taking responsible for his injuries. The JCC found the claimant clearly established he was performing duties for JJ Road Feeder at the time of the accident, and his sole responsibility at work was to JJ Road Feeder. He operated a JJ truck and only delivered for JJ. The job assignment came from JJ and his timekeeping was done at JJ’s location.
Further, the JCC found there was no valid employee leasing arrangement between JJ Road Feeder and A.P. Services USA, to which the attorney for JJ Road Feeder admitted. The JCC noted that in order for there to be any valid employee leasing agreement, F.S. §468.525 requires it be in writing.
Peggy Conner v. Vitamin Shoppe/ADP/Sedgwick CMS
JCC McAliley; Port St. Lucie District; Order Date: March 17, 2016
OJCC Case: 14-013746RDM; D/A: 6/2/2014
Claimant’s Counsel: Gregory D. Forsythe & Andrew Reich
Employer/Carrier’s Counsel: Stephen Gary Kaufer
Briefly: AUTHORIZATION OF MEDICAL TREATMENT – JCC McAliley denied a change of physicians and authorization of further medical services, and found the Employer/Carrier is not responsible for the specific medical services requested since they were neither authorized prior to being performed nor requested by the claimant. Further, the JCC found the claimant failed to demonstrate the major contributing cause of the medical service involved is related to the compensable injuries.
Summary: The claimant sought a change in orthopedic physicians from his prior authorized physician, and the payment of medical expenses incurred with Dr. Thomas Rosch, as well as authorization of Dr. Rosch for further medical care with associated medical benefits. The Employer/Carrier alleged that the claimant has been provided appropriate orthopedic care for her back injury with Dr. Baynham, who was the claimant’s one-time change of physicians, and that Dr. Baynham remains ready, willing, and able to continue providing medical care. Further, the Employer/Carrier alleged medical treatment for the claimant has never been denied so that any treatment claimant obtained with Dr. Rosch is not the Employer/Carrier’s responsibility.
The JCC accepted the Employer/Carrier’s position and found the claimant’s third-party attorney directed her to “Dr. Katzman’s office”, a medical group named “Advanced Orthopedics”, where claimant received treatment under a letter of protection and underwent a percutaneous discectomy. The claimant’s authorized physician testified there is no objective evidence indicating the procedure should have been performed. The JCC found the Employer/Carrier is not responsible for this medical service since it was neither requested nor authorized prior to being performed and that the claimant failed to demonstrate the major contributing cause of the medical services is the compensable injury.
The JCC found no basis existed for the claimant going outside the workers’ compensation system for medical treatment pursuant to the self-help provisions of F.S. §440.13(2)(c), but even if acting out of the self-help provision of the statute were to be allowed, there was no substantial evidence demonstrating what actual service was provided, much less demonstrating it was reasonable and medically necessary in the first place.
Jean B. Amilcar v. City of Boca Raton/Johns Eastern Company, Inc.
JCC D’Ambrosio; West Palm Beach District; Order Date: March 17, 2016
OJCC Case: 15-004862MAD; D/A: 2/19/2015
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Beth Leahy
Briefly: MISREPRESENTATION DEFENSE – JCC D’Ambrosio found the claimant violated F.S. §440.105(4) and is barred from receiving any benefits pursuant to §440.09(4)(a). The JCC found the claimant presented false, fraudulent, or misleading written statements to the insurance adjuster, his physician, and in his deposition in support of his claim for benefits.
Summary: The JCC found the claimant knowingly and intentionally misrepresented his relevant medical history to his doctors and to the Employer/Carrier in his deposition. The claimant denied having any prior injuries or treatment for his left shoulder and that the records of prior physicians in evidence clearly revealed the claimant had a significant left shoulder injury which required extended periods of treatment, an MRI, and assignment of a 4% permanent impairment rating and recommendation for surgery.
The JCC found the existence of the prior left shoulder could not have been a matter of simple forgetfulness due to the extent of treatment, the permanent impairment rating assigned, and legal involvement.
Michael J. Karol v. Trojan Labor/Gallagher Bassett Services, Inc.
JCC Weiss; Ft. Myers District; Order Date: March 16, 2016
OJCC Case: 15-014153JAW; D/A: 1/22/2014
Claimant’s Counsel: Clark W. Berry
Employer/Carrier’s Counsel: Wanda Reas
Briefly: EMERGENCY CONFERENCE – JCC Weiss denied the claimant’s emergency Motion to Compel medical treatment and found there was no evidence before the JCC that there is a bona fide emergency involving the health, safety, or welfare of the claimant as required under Rule 60Q-6.117(1).
Summary: The claimant sought to compel the Employer/Carrier to provide an alternate pain management physician as the claimant’s current authorized physician would no longer treat the claimant after he tested positive for alcohol. The claimant introduced into evidence a prescription/referral from the authorized physician for a “consultation for pain management”.
The JCC found there was no pending Petition for Benefits seeking authorization of an alternate physician; there were no medical records in evidence detailing what medications, if any, claimant was taking for treatment; and that the sole medical evidence admitted was a prescription/referral for “consultation for pain management”. The JCC found the evidence fails to demonstrate an emergency involving the health, safety, or welfare of the claimant.
Stephen Nichols v. Warren Equipment, Inc./AmTrust of Florida
JCC Spangler; Tampa District; Order Date: March 16, 2016
OJCC Case: 15-017391EDS; D/A: 12/9/2014
Claimant’s Counsel: Pat DiCesare
Employer/Carrier’s Counsel: Gwen G. Jacobs
Briefly: COMPENSABILITY – JCC Spangler denied the claim for compensability and found the claimant is a demonstrable liar. The JCC noted the claimant’s explanation for the lies he told to the medical providers was that he was intentionally trying to conceal the real reasons for the injuries because he was afraid of losing his job. The JCC found the injury was not timely reported to the Employer as required by F.S. §440.185.
Summary: The JCC rejected the testimony of the claimant and his witness, Mr. Thomas, and found the claimant failed to prove that his injuries were actually sustained at work as claimed. Further, the JCC found that if the injuries did occur at work, then the claimant failed to timely and properly notify the Employer under F.S. §440.185(1).
The JCC carefully analyzed the claimant’s testimony and the testimony of claimant’s witness, Mr. Thomas. The JCC noted Mr. Thomas was actually recruited by the claimant and was presented as a witness to corroborate the claimant’s version of the accident and resulting injuries. However, the JCC found Mr. Thomas did not corroborate any injury and, instead, the claimant’s testimony and Mr. Thomas’ testimony conflicted on critical points.
The JCC found the claimant lied either to his medical providers by attributing his injuries to a fall at home or to a motor vehicle accident, or he lied at deposition and trial when he testified his injuries occurred at work. The JCC also rejected claimant’s allegation that he worked in a hostile environment where he could lose his job for reporting a work accident.
Lorena Dragon-Barroso v. Sheridan Health Corporation/Travelers Insurance Company
JCC Forte; Ft. Lauderdale District; Order Date: March 16, 2016
OJCC Case: 11-010750IF; D/A: 7/22/2009
Claimant’s Counsel: Mark L. Zientz
Employer/Carrier’s Counsel: Christine M. Tomasello
Briefly: MOTION TO DISMISS FOR LACK OF GOOD FAITH EFFORT – JCC Forte denied the Employer/Carrier’s Motion to Dismiss alleging there was a deficiency in the certificate of good faith effort.
Summary: The Employer/Carrier maintained that the claimant attached a certificate of good faith that was used in a prior Petition to the instant Petition.
The JCC relied on the case of Palm Beach County School District v. Blake-Watson, 91 So. 3d 176 (Fla. 1st DCA 2012) and found she does not have the authority to “go behind” counsel’s representation of a good faith effort to resolve the dispute under F.S. §440.192. The JCC found “the fact that a certification was attached that was used for a prior Petition is not evidence per se that a good faith effort was not made before filing the instant Petition, or that the certification is otherwise a nullity.”
Beatriz Alvarez v. Utopia Home Care/Guarantee Insurance Company
JCC Rosen; St. Petersburg District; Order Date: March 16, 2016
OJCC Case: 11-029081SLR; D/A: 4/6/2011
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Paulette Z. Brown
Briefly: PSYCHIATRIC CONDITION; SIX-MONTH LIMITATION ON TEMPORARY DISABILITY – JCC Rosen awarded psychiatric care and 3 months of temporary total disability benefits and accepted the opinion of the Expert Medical Advisor, Dr. Figueroa, a psychiatrist, that claimant’s chronic pain from the physical injury to the claimant’s left shoulder in the industrial accident is and remains the major contributing cause of the claimant’s depression. The JCC reserved jurisdiction to determine whether the claimant will be entitled to all or part of an additional 3 months TTD pursuant to F.S. §440.093.
Summary: The JCC cited F.S. §440.093 and found there is nothing in the statute that states the six-month maximum for temporary disability benefits as a result of the psychiatric injury must begin immediately after the date of physical MMI. In this case, physical MMI was reached in July 2013.
Because the JCC accepted the psychiatric opinion of the EMA, the JCC found the onset of the six-month period for temporary total disability benefits should begin from the date of the EMA’s deposition, January 27, 2016, where he clearly stated the claimant is temporarily and totally disabled for 3 months. At the end of the 3 months of psychiatric care, a reevaluation should take place on the extent of temporary disability. The JCC reserved jurisdiction to determine whether the claimant is entitled to all or part of an additional 3 months TTD thereafter.
Patricia A. Ferriola v. Cort Furniture Rental/Hartford Casualty Insurance Company
JCC Pitts; Orlando District; Order Date: March 16, 2016
OJCC Case: 84-000017MPP; D/A: 1/6/1984
Claimant’s Counsel: Glen D. Wieland
Employer/Carrier’s Counsel: Nicole D. Ruocco
Briefly: DISINTERESTED DOCTOR – JCC Pitts found there was a conflict in the medical records, but under the statute applicable to this date of accident, January 6, 1984, the JCC cannot appoint an Expert Medical Advisor, but is authorized to appoint a “disinterested doctor” pursuant to F.S. §440.25(3)(b) (1983).
Summary: The JCC found that, based upon the nature and complexity of the conflict in the medical opinions, the appointment of a “disinterested doctor” will assist the JCC in resolving various issues. The JCC appointed Dr. James K. Shea, a physical and rehabilitative medicine specialist, to serve as the “disinterested doctor” and to perform an examination and render an opinion to the judge.