FL Case Law Summaries – 3/29/16
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JCC ORDERS
Karen McCarthy v. Memorial Hospital of Jacksonville/Broadspire
JCC Holley; Jacksonville District; Order Date: March 24, 2016
OJCC Case: 15-012373WRH; D/A: 3/30/2015
Claimant’s Counsel: Michael J. O’Rourke
Employer/Carrier’s Counsel: Michael D. Kendall
Briefly: IDIOPATHIC CONDITION – JCC Holley granted the claim for compensability and found the claimant proved her injury occurred in the period of her employment, at a place where she would reasonably be while fulfilling her duties of charting notes after having undergone strenuous work-related duties in dealing with a large patient. The JCC found there was no medical evidence indicating the claimant had any issues regarding the alleged pre-existing condition during the seven year time frame prior to her instant dislocation.
Summary: The JCC cited the case of Hillsborough County School Board v. Williams, 565 So. 2d 852 (Fla. 1st DCA 1990) and found that once the claimant shows they were at work and doing their job when the injury happened, the burden shifts to the Employer/Carrier when a defense is asserted that the injury was due to an idiopathic, pre-existing condition.
Here, the JCC found the burden shifted to the Employer/Carrier requiring them to introduce evidence as to the pre-existing condition that was present or active at the time of the dislocation, which would have caused the claimant’s instant injury. Since there was no medical evidence provided or past medical records indicating the claimant had had any issues during the seven year timeframe prior to the instant accident, the JCC found the Employer/Carrier failed to meet its burden. The JCC found the medical evidence demonstrated the prior initial injury was seven years ago and had completely healed.
Thomasena J. Mitchell v. Miami Dade County/Miami Dade County Risk Management
JCC Almeyda; Miami District; Order Date: March 24, 2016
OJCC Case: 13-012072ERA; D/A: 1/27/2013
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Daron S. Fitch
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Almeyda, on remand, determined the claimant’s heart disease was compensable pursuant to the presumption under F.S. §112.18 and found that medical evidence established there is no way to know what caused the “trigger” to bring on the claimant’s supra ventricular tachycardia (SVT) and that the Employer/Carrier failed to establish by competent evidence facts to overcome the presumption.
Summary: This matter was before the 1st DCA which reversed the order of JCC Almeyda and remanded to the JCC to make a finding regarding whether any potential “trigger” for the SVT was occupational in nature.
The JCC found that testimony presented previously at the final hearing was adequate to address the issue on remand and that further medical evidence would not yield any greater clarification of the issues. The JCC found the medical evidence established that specifically in the claimant’s case, there is no way to know what caused the trigger to bring on the SVT. Both physicians speculated as to extraneous triggers, but nowhere in the testimony is there a level of medical certainty to establish that one or more possible non-occupational causes was a trigger for the SVT, or that there are known occupational causes that trigger the SVT.
As such, the JCC found the Employer/Carrier failed to establish competent evidence to overcome the presumption under F.S. §112.18.
Kim M. Garner v. Trane Unitary Products Group/Travelers Insurance
JCC Rosen; Panama City District; Order Date: March 24, 2016
OJCC Case: 15-020034SLR & 15-020041LAR; D/A: 5/12/2011, 3/25/2013, 9/8/2014
Claimant’s Counsel: Christopher R. Cumberland
Employer/Carrier’s Counsel: Peter J. Egan
Briefly: STATUTE OF LIMITATIONS – JCC Rosen considered statute of limitations defenses raised in two dates of injury. The JCC denied the defense on the 2011 injury by virtue of estoppel and denied the defense for the 2013 injury on the grounds that the claimant received treatment from an authorized treating physician on a continuing basis and that there is no consecutive period of one year without treatment.
Summary: The claimant suffered an injury in May 2011 to her right middle finger which was accepted as compensable. She had two surgeries on that finger and was placed at maximum medical improvement with a 0% permanent impairment rating in 2012. The claimant had a second industrial accident in March 2013 to her right index finger which resulted in a trigger finger release performed in May 2013. The claimant was placed at maximum medical improvement with a 0% permanent impairment rating in July 2013.
For the May 12, 2011, the claimant last saw her treating physician in August 2012. The claimant relied on the case of Gauthier v. Florida International University, 38 So. 3d 221 (Fla. 1st DCA 2010), and argued the Employer/Carrier failed to investigate permanent impairment as of August 13, 2012, and, therefore, the Employer/Carrier is estopped from relying on the statute of limitations defense. The JCC agreed and found it was unrealistic for the Employer/Carrier to fail to investigate the permanent impairment issue under F.S. §440.15(3)(a) after the claimant had undergone two surgeries for the right middle finger. As such, the JCC found the Employer/Carrier is estopped from raising the statute of limitations as a defense for the date of accident of March 12, 2011.
With regard to the statute of limitations defense for the March 25, 2013, injury, the JCC accepted the testimony of the claimant that she used cream prescribed by her authorized physician from the time he became authorized in 2013 through at least April 2015. The JCC noted the claimant’s authorized physician did not restrict the claimant in any way from using this cream. The JCC found the claimant sufficiently presented evidence to overcome the statute of limitations defense because the claimant continues to receive treatment by her authorized physician.
Peter Grattan, III v. Indianhead Biomass Services/Auto Owners
JCC Humphries; Jacksonville District; Order Date: March 24, 2016
OJCC Case: 15-008585RJH; D/A: 2/25/2015
Claimant’s Counsel: Jill Barger
Employer/Carrier’s Counsel: Adam Muth & Benjamin Floyd
Briefly: IDIOPATHIC CONDITION; EXPOSURE – JCC Humphries denied the claim for compensability and found the claimant failed to establish a specific harmful substance to which he was exposed. The JCC noted the claimant speaks generally of exposure to “swamp water”, black mold, dirt, and dust, as well as dead animals. The JCC found the claimant failed to meet the burden imposed under F.S. §440.151(1)(a) of establishing the specific harmful substance or biological hazard to which he was exposed.
Summary: The claimant contends that he was taken to the emergency room as a result of throwing up blood after being exposed to biological hazards. He said his job required him to walk waist-deep in what he described as “swamp water” looking for dead cows and dead goats. He stated, as part of his work, he lived in a “barn” which he described as having black mold. He also described having been exposed to dirt and dust coming from the air conditioning system. He also alleged the Employer burned wood to make methane glass as part of the production process and that he was not provided with a mask or suit to protect him from exposures at work.
The JCC found compensability of the case is governed by F.S. §440.151(1)(a) and that the claimant failed to meet the burdens placed upon him by statute. The claimant failed to identify the specific harmful substance to which he was exposed and failed to establish by competent medical evidence that he has contracted a disease as a result of any alleged exposure.
Jose Artimez v. Corner Bakery Café/Zenith Insurance Company
JCC Hill; Gainesville District; Order Date: March 24, 2016
OJCC Case: 14-000629MRH; D/A: 9/6/2013
Claimant’s Counsel: Monica Cooper
Employer/Carrier’s Counsel: Katherine Wilson
Briefly: MEDICAL NECESSITY – JCC Hill denied authorization and treatment for the claimant’s left eye injury and found the claimant did not present any medical evidence to establish the treatment requested was medically necessary.
Summary: The parties stipulated the work accident and left eye injury were compensable and that the Employer/Carrier did not challenge the causal chain. The JCC found the claimant met his burden of proof of causal relationship between compensability and the requested benefit. However, the JCC found the claimant still had the burden to establish the benefit requested was medically necessary and failed to do so.
Coral Garcia v. Randstad US/ESIS WC Claims
JCC Sturgis; Ft. Myers District; Order Date: March 24, 2016
OJCC Case: 15-019636KAS; D/A: 6/18/2015
Claimant’s Counsel: Cora Molloy
Employer/Carrier’s Counsel: Andrew Borah
Briefly: MISREPRESENTATION DEFENSE – JCC Sturgis denied all benefits and found the Employer/Carrier satisfied its burden to show the claimant made intentional incomplete statements and misrepresentations for the purposes of securing workers’ compensation benefits, including at the hearing held on claimant’s Motion for Advance. The JCC found the claimant’s production of bank statements from only one of two checking accounts where checks were direct deposited constituted a violation of the statute.
Summary: The JCC held a hearing on the claimant’s motion for advance and noted the sole purpose of the hearing was to determine if claimant should receive an emergency advance from the Employer/Carrier. Part of that inquiry was to look into all assets and sources of money available to claimant to meet her expenses.
The JCC found the claimant violated F.S. §440.105(4)(b)(2) by making written or oral statements in support of her claim for payment for workers’ compensation and that such statements contained incomplete information. The JCC found the claimant’s production of bank statements from only one of two checking accounts where checks were direct deposited constituted a violation of the statute. The JCC found the claimant clearly presented incomplete information to the judge and that the related testimony was misleading at best. The JCC noted the claimant continued to rely on her bank records even in deposition and at the hearing.
The JCC rejected the claimant’s attorney’s explanation that the claimant’s alleged misrepresentations were nothing more than a lack of understanding of English, and the confusing questioning of the defense counsel at the advance hearing in part due to his telephonic appearance for that hearing.
Amelia A. Sierra v. Molly Maid/Castlepoint Florida
JCC Weiss; Ft. Myers District; Order Date: March 25, 2016
OJCC Case: 14-013455JAW; D/A: 6/26/2013
Claimant’s Counsel: Scott C. Cohen
Employer/Carrier’s Counsel: Russell H. Young
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Weiss denied the claim for authorization of a left wrist carpal tunnel surgery and found the only medical opinion in evidence was that the work accident is not the major contributing cause of the need for surgery and that the carpal tunnel condition pre-existed the industrial accident.
Summary: The claimant argued that Cespedes v. Yellow Transportation, Inc., 137 3d 243 (Fla. 1st DCA 2013) stands for the proposition that once compensability of an injury is established, a carrier can no longer contest that the accident is the major contributing cause of the injury. However, the JCC found the instant case is distinguished from Cespedes in that the only medical opinion is that the work accident is not the major contributing cause of the surgery.
The JCC found the work accident caused a temporary aggravation of a pre-existing condition and that the claimant returned to her baseline as of the date of accident. Thus, even taking into account Cespedes and reading it in the light most favorable to the claimant, the JCC still must consider whether the pre-existing condition or the industrial accident is the major contributing cause of the need for surgery. The JCC cited Perez v. Southeast Freight Lines, Inc., 159 So. 3d 412 (Fla. 1st DCA 2015).
The JCC noted the claimant cited no case law that required the Employer/Carrier to pay for surgery merely because the Employer/Carrier paid for treatment after claimant had her return to her baseline condition where the only medical opinion is that the need for surgery is not due to the industrial accident. Accordingly, the claim for surgery was denied.
Marco Quijano v. City of Homestead/Preferred Government Claims Solutions
JCC Massey; Tampa District; Order Date: March 25, 2016
OJCC Case: 14-019450MAM; D/A: 10/8/2003
Claimant’s Counsel: Matthew Sosonkin
Employer/Carrier’s Counsel: Eric Stettin
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Massey granted the claim for authorization of continuing medical treatment for the neck and found the major contributing cause of the ongoing need for treatment is the October 8, 2003, compensable motor vehicle accident.
Summary: The claimant sustained a compensable neck injury in 2003. The Employer/Carrier asserted it met its burden of proof of a break of the causation chain in that the claimant sustained a subsequent accident in May 2014 where he experienced a significant increase in neck pain. The JCC disagreed and found the Employer/Carrier did not carry its burden of establishing a break in the causal chain.
The JCC found the subsequent accident was an exacerbation of the compensable 2003 neck injury and that the claimant has now returned to his pre-2014 baseline, and the major contributing cause of the current and ongoing need for treatment is the industrial accident of 2014 and resulting neck injury. The JCC found the treating doctor’s opinion was unequivocal that the major contributing cause of the ongoing need for treatment is the 2003 compensable motor vehicle accident.