FL Case Law Summaries – 3/28/16
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JCC ORDERS
Reinaldo Molina v. Ryder/Old Republic Insurance Company
JCC Almeyda; Miami District; Order Date: March 23, 2016
OJCC Case: 13-017976MGK; D/A: 9/30/2008
Claimant’s Counsel: Danni Germano
Employer/Carrier’s Counsel: Robert Strunin
Briefly: PENALTIES AND INTEREST – JCC Almeyda granted the claim for penalties and interest on temporary total disability and found that, given the fact the Employer/Carrier failed to comply with its duty to inform the claimant of the need to file DWC-19 forms, and further failed to establish the claimant actually knew of this need, the defense that TPD was not due until the DWC-19 form was filed was denied. The JCC found the benefit was paid more than several months after it was due, therefore, penalties and interest are due to the claimant.
Summary: The JCC found that at no time did the Carrier send the claimant a letter regarding temporary partial disability duties or DWC-19 reporting forms. The Employer/Carrier’s position was that temporary disability is not due until the Carrier receives those reporting forms. The JCC rejected this position and cited Florida Administrative Rule 69L-3.01915 which provides that the claims administrator shall mail an informational letter to the claimant within five days after the claims administrator has knowledge of the employee’s release to restricted work, and the letter shall state: “You may be asked to complete, sign, and return this form once a month”.
The JCC found that the failure to advise the claimant of the penalty (non-payment) for failure to submit the DWC-19 form is analogous to the failure to advise the claimant as to the statute of limitations. The JCC found the Employer/Carrier failed in its duty to inform the claimant of its responsibility to file forms and failed to present any evidence that the claimant had any knowledge of his duty.
Mai Phuong Thi Tran v. GE Aviation/Sedgwick CMS
JCC Rosen; St. Petersburg District; Order Date: March 23, 2016
OJCC Case: 13-027543SLR; D/A: 9/9/2013
Claimant’s Counsel: Andrew Davidson Spence
Employer/Carrier’s Counsel: Frank Wesighan
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME –JCC Rosen ordered the Employer/Carrier to provide claimant with DWC-19 temporary partial disability forms and that upon receipt of the completed forms, the carrier shall pay the claimant temporary partial disability benefits through the date of maximum medical improvement. The JCC found the Employer did not have any knowledge of the treating physician’s initial statement that he did not feel there was any light-duty work available that would accommodate all of the claimant’s complaints.
Summary: The claimant had serious cervical and carpal tunnel syndrome injuries which have been accepted as compensable. The JCC found that no evidence was presented to the treating physician to change his opinion that there was no light duty work available that would accommodate the claimant’s complaints.
The JCC found the breakdown in communication between the Employer and the Carrier with regard to the opinions of the treating physician resulted in the Employer not having the full medical picture regarding the claimant’s pain management treatment. The JCC also found the claimant’s failure to return to work was justified based on the lack of communication with regard to the opinions of the treating physician between the claimant, the Employer, and the Carrier.
The claimant appeared at the final hearing with a Vietnamese interpreter, but as she walked into the hearing room, the JCC observed she was emotional and had been crying. The JCC explained the final hearing process to her, in which her deposition testimony was relied upon instead of her live testimony.
Juanita Ream v. Comcar Industries, Inc./Gallagher Bassett Services, Inc.
JCC Sojourner; Lakeland District; Order Date: March 23, 2016
OJCC Case: 15-017415MES; D/A: 3/21/2014
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Bruno DeZayas
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Sojourner found the claimant sustained an aggravation of a pre-existing condition and accepted the opinion of Dr. Cosmos, the claimant’s IME physician, over the opinion of Dr. Butler, the Employer/Carrier’s IME. The JCC rejected the Employer/Carrier’s argument that the claimant had the same hernia symptoms both before and after the accident.
Summary: The JCC accepted the opinion of Dr. Cosmos that the claimant had sustained an aggravation of a pre-existing condition and that the scans done before and after the compensable injury showed an increase in the size of the claimant’s hernia. Also, the JCC noted that the claimant told Dr. Cosmos and testified at hearing that her symptoms increased following the accident.
The JCC noted the Employer/Carrier offered only one medical report from 2010 with regard to the claimant’s prior symptoms. The JCC found there was no evidence that the symptoms persisted from the date of the medical report offered by the Employer/Carrier in 2010 through the date of the compensable injury in 2014. The JCC rejected the opinion of Dr. Butler, that the changes in the size and appearance of the hernia are the result of the passage of time.
Clifford LoSasso v. Advanced Auto Parts/Sedgwick CMS
JCC; District; Order Date: March 23, 2016
OJCC Case: 11-008191IF, 12-016899IF, 12-016917IF; D/A: 12/13/2010, 3/14/2012, 3/30/2012
Claimant’s Counsel: Kevin R. Gallagher
Employer/Carrier’s Counsel: Christopher Thorne
Briefly: MEDICAL NECESSITY; RES JUDICATA – JCC Forte denied authorization of pain management treatment for claimant’s back and authorization of a left shoulder arthrogram and found the claimant was attempting to re-litigate the previously denied claim.
Summary: The JCC accepted the Employer/Carrier’s argument that the claimant is attempting to re-litigate the previously denied claim by the mere fact that MRIs of the back have now been performed which may have led to a different conclusion. The JCC found the claim for further treatment of the back by way of pain management and physical therapy was previously litigated and is barred by res judicata.
The JCC also found the claimant did not attempt to modify the prior compensation order denying treatment for the back based upon the discovery of evidence that could not have been discovered prior to the entry of the original order in this case.