FL Case Law Summaries – 3/3/16
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JCC ORDERS
Roberto Fernandez Lanier v. Executive & Professional Management, Inc./CCMSI
JCC Almeyda; Miami District; Order Date: March 2, 2016
OJCC Case: 15-011323ERA; D/A: 4/19/2015
Claimant’s Counsel: Michael Goldstein
Employer/Carrier’s Counsel: Ana Frexes & Adrian Houser
Briefly: COMPENSABILITY; MISCONDUCT – JCC Almeyda awarded the requested medical and disability benefits and found the claimant sustained a compensable injury at work while performing lifting activities and was not terminated for “misconduct”.
Summary: The JCC accepted the claimant’s version of the history of the accident as given to the physicians, but rejected the Employer/Carrier’s position and found that the Employer/Carrier “…is attempting to destroy his historical recapitulation of an accident with innuendo, lacking in any factual basis”. The JCC accepted the claimant’s testimony that he felt pain and discomfort while moving furniture and continued to work which worsened the pain such that he went to the hospital. The hospital records reflect a consistent history.
The JCC also found the claimant has been without an income since termination from the Employer and there is no evidence that he attained maximum medical improvement. The JCC rejected the Employer/Carrier’s defense that the claimant was terminated for misconduct. The alleged misconduct was that the claimant missed days from work, but there was no specific testimony as to which days he missed, or under what circumstances. The JCC noted that the alleged missed time occurred when the claimant was under a physician’s care following the accident.
The JCC also noted the claimant was “accommodated” in a rather unique fashion by the Employer/Carrier, which changed his schedule to weekends so he could attend medical treatment without losing time from work. The claimant declined this work shift change and there was no evidence presented by the Employer/Carrier that the claimant was warned or that any arrangements were made to give him other work shifts. The JCC found it was clear the Employer wanted to terminate the claimant for one reason or another.
Alejandro Abello v. Gus Machado Ford/FFVA Mutual Insurance Company
JCC Weiss; Ft. Myers District; Order Date: March 2, 2016
OJCC Case: 14-025791JAW; D/A: 10/25/2014
Claimant’s Counsel: D. Robert Wells & Robert Rivera
Employer/Carrier’s Counsel: Mark E. Hill
Briefly: COMPENSABILITY; PHYSICAL ALTERCATION – JCC Weiss found the claimant met his burden of proof by preponderance of evidence that a compensable accident occurred at work during the course of a physical altercation with a co-worker.
Summary: The JCC rejected the Employer/Carrier’s defense that there was no evidence the claimant was involved in a physical altercation or sustained an injury on the job. The JCC noted that in addition to the claimant’s testimony, two co-workers testified that the claimant was struck by a co-employee. Further, the JCC found that although the police officer testified he did not observe any red mark on the claimant’s face, the officer did not arrive at the scene until some time after the assault occurred. Also, two of the claimant’s co-workers saw the claimant’s face was red immediately following the altercation.
The JCC noted the Employer/Carrier offered no defense to the claims for medical benefits and indemnity other than that the entire claim was denied.
Delores M. Barden v. Sarasota County School Board/Comp Options/AmTrust North America of Florida
JCC Beck; Sarasota District; Order Date: March 2, 2016
OJCC Case: 14-019925DBB; D/A: 5/23/2014
Claimant’s Counsel: Eric M. Christiansen
Employer/Carrier’s Counsel: Ben H. Cristal
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Beck denied the claim for permanent total disability benefits and found the labor market survey offered by the Employer/Carrier established jobs within twenty miles of the claimant’s residence within her restrictions.
Summary: The JCC found the claimant’s physical restrictions are not totally disabling and when combined with vocational factors did not preclude her from engaging in at least sedentary employment. The JCC noted the claimant has a college education, is bilingual, is well-groomed, has a professional appearance, is articulate, computer literate, has an excellent and lengthy job history, is diligent, moderately motivated, has a driver’s license and car, can drive, and has maintained her teaching certifications. The Judge found the claimant has few, if any, vocational impediments other than her age of 65.
The JCC also found that the claimant did not establish a permanent medical incapacity to engage in at least sedentary employment within a fifty mile radius of her residence due to physical limitations. Additionally, the JCC found the claimant did not conduct a lengthy, exhaustive or adequate job search and set forth various ways in which the claimant limited her job search.
Antonio Dirso Palacios v. PEMB, Inc./Zurich Insurance Company
JCC Condry; Orlando District; Order Date: March 2, 2016
OJCC Case: 05-002378WJC; D/A: 11/3/2004
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Shari Gergerson Hall
Briefly: ATTORNEY’S FEES – JCC Condry ordered the Employer/Carrier shall pay claimant’s counsel a reasonable attorney’s fee in the amount of $5,484.30 based upon an hourly rate of $225 for attorney time and $85 per hour for paralegal time in this 2004 claim.
David M. Baricko v. Barnett Transportation, Inc./York Risk Services Group
JCC Massey; Tampa District; Order Date: March 1, 2016
OJCC Case: 14-027898MAM; D/A: 8/15/2013
Claimant’s Counsel: John Sharpless
Employer/Carrier’s Counsel: Linda Farrell
Briefly: IDIOPATHIC CONDITION – JCC Massey denied the claim for compensability of pulmonary embolism and pulmonary hypertension and found the claimant did not carry his burden of proof that the medical conditions at issue are causally related to employment.
Summary: The JCC accepted the opinion of the Employer/Carrier’s IME physician, Dr. Stuart Brooks, who is board-certified in pulmonary disease, internal medicine and occupational medicine. Dr. Brooks opined that the claimant’s employment as a truck driver is not the major contributing cause of a pulmonary embolism and resulting pulmonary hypertension.
The JCC noted that Dr. Brooks explained his opinion in detail and that the doctor disagreed with the claimant’s theory that the immobilization of his left leg while truck driving led to development of deep venous thrombosis, which caused a blood clot that broke off and made its way to claimant’s lung. The JCC noted that Dr. Brooks found no evidence that the claimant even had venous thrombosis during the time period in question, and that the embolism could have just as easily originated elsewhere than claimant’s leg. Additionally, the JCC found there was a question as to whether the amount of driving claimant did at any one time would be “prolonged” enough for the development of venous thrombosis.
The JCC also noted the claimant suffered from numerous non-occupational risk factors for pulmonary embolism, including pre-existing arterial hypertension, advanced age, being a former long-time smoker, obesity, obstructive sleep apnea, and elevated BMP. Also, the JCC found the claimant had a prior history of metabolic syndrome, and shortness of breath with exertion which was documented about one year prior to the claim date of accident.
Millie Segal-Perez v. Brauser Maimonides Academy/Employers Preferred Insurance Company
JCC Lewis; Ft. Lauderdale District; Order Date: March 1, 2016
OJCC Case: 15-014063DAL; D/A: 10/7/2014 & 3/9/2015
Claimant’s Counsel: David Rosenberg
Employer/Carrier’s Counsel: John B. Clarke
Briefly: MOTION TO COMPEL VERIFIED MOTION FOR ATTORNEY’S FEES – JCC Lewis noted the Motion to Compel the Filing of a Verified Motion for Attorney’s Fees was filed on November 3, 2015, and no written response was filed by the claimant. On March 1, 2016, JCC Lewis granted the Motion and ordered claimant’s counsel to file a verified motion for attorney’s fees within 45 days.
Marylene Edwards-Troller v. Polk County School Board/Johns Eastern, Inc.
JCC Sojourner; Lakeland District; Order Date: March 1, 2016
OJCC Case: 92-007063MES; D/A: 11/11/1992
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Thomas P. Vecchio
Briefly: ATTORNEY’S FEES – JCC Sojourner awarded an hourly rate of $200 per hour in this 1992 claim resulting in an attorney’s fee of $12,063.04. The JCC noted that a guideline fee equals $10,059.60.
Todd Nugent v. Greater Naples Fire Rescue/Preferred Government Claims Solutions
JCC Weiss; Ft. Myers District; Order Date: March 1, 2016
OJCC Case: 15-010865JAW; D/A: 12/18/2014
Claimant’s Counsel: Michael P. Clelland
Employer/Carrier’s Counsel: George A. Helm
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Weiss granted the claim for compensability of claimant’s heart disease and found that claimant’s coronary disease is presumed compensable absent competent evidence it was not caused by work and that the Employer/Carrier failed to meet its burden of proof to rebut the presumption.
Summary: The JCC accepted the opinion of Dr. Patrick Mathias, the claimant’s IME cardiologist, over the opinion of Dr. Boucek, who was authorized to treat the claimant on an emergency basis. The JCC found the claimant’s coronary heart disease was caused by atherosclerosis, but that the cause of the atherosclerosis is unknown.
The JCC found that Dr. Boucek was merely guessing the claimant was genetically predisposed to develop coronary artery disease and noted there was no evidence the claimant was genetically predisposed to develop the disease other than Dr. Boucek’s testimony. The JCC found that the mere existence of a disease is not proof of a genetic predisposition. The JCC also noted there was no evidence the claimant had a family history of heart disease.