FL Case Law Summaries – 3/7/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
To receive daily e-mails with case law summaries, please email esantos@eralcides.com
First DCA Opinions
Milovan Zekanovic v. American II, Corp., and Gallagher Bassett Services
JCC Rosen: St. Petersburg District Opinion Date: February 7, 2017
OJCC Case: 15-014324 Date of Accident: 2/7/14
Claimant’s Counsel: Bill McCabe Employer/Carrier’s Counsel: Thomas Vecchio
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: One Time Change – This DCA opinion provides a summary of case law regarding the one time change issue. Claimant faxed the Employer/Carrier a one time change on December 23, 2015 and the Employer/Carrier failed to respond within the five day period. The DCA overturned JCC Rosen and ruled that the Claimant did in fact have the right to select their one time change in physician within the same specialty. They made a point to say that faxing the one time change so close to the holidays “smacked of gamesmanship” and invited the Legislature to address whether 5 business day or 5 calendar days is appropriate.
Summary: The DCA held the Employer/Carrier failed to respond to the December 23, 2015, request for a one time change timely and the Claimant was ultimately allowed his choice in physician in the same specialty.
The DCA did not address the portion of the JCC’s Order which noted that the Claimant requested a one time change on three separate occasions. Each time the Claimant requested the one time change, the request contained a provision that the physician must be acceptable to the Claimant. The Employer/Carrier responded to the first two one time changes timely, but the Claimant withdrew the requests as he did not agree with the choice of physician. JCC Rosen noted that the Employer/Carrier failed to deauthorize the Claimant’s original authorized treating physician each time they granted the one time change.
Manuel Govea v. Starboard Cruise Service and Travelers Insurance
JCC Kerr: Miami District Opinion Date: February 7, 2017
OJCC Case: 12-005272 Date of Accident: 12/23/11
Claimant’s Counsel: Richard Sicking and E/C’s Counsel: Steven Preston
Mark Touby
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Costs – The DCA determined the Claimant lacked standing to challenge the constitutionality of the F.S. 440.34(3), regarding payment of prevailing party costs.
Summary: The JCC’s order explained that the Claimant prevailed on four of the eight issues raised at final hearing. Claimant’s Counsel was awarded prevailing party costs on the four issues the Claimant prevailed on at Final Hearing. The Employer/Carrier was awarded costs on the four claims it successfully defended
The First DCA affirmed the award of costs to the Employer/Carrier and found the claimant lacked standing to challenge the constitutionality of the statue based on the Punsky decision, as the Claimant failed to establish a real and immediate injury resulting in denial of access to courts.
JCC ORDERS
Maria Perez v. Poly Concepts of North American and Travelers Insurance
JCC Almeyda: Miami District Order Date: February 7, 2017
OJCC Case: 16-017766 Date of Accident: 5/10/16
Claimant’s Counsel: Monica Cooper E/C’s Counsel: Esther Nickas
JCC Order: Click Here
Briefly: One Time Change – Claimant requested a one time change on 7/25/16. The adjuster testified, and the adjuster notes corroborated, that she authorized the one time change on 7/27/16. On that same day, she had the Carrier’s automated mailing system send the one time change letter to Claimant’s Counsel. Claimant argued that because the adjuster could not personally guarantee that the letter was actually mailed, that the Employer/Carrier did not respond timely. JCC Almeyda ruled that the Carrier’s automated mailing system created a rebuttable presumption that the letter was mailed and the Claimant failed to present any evidence rebutting that presumption. One time change denied.
Summary: Claimant’s Counsel argument was largely based on General Motors Acceptance Corp. v. American Liberty Insurance Company. The JCC determined that case was distinguishable because the adjuster’s testimony along with the adjuster notes, tracked the creation and mailing of the one time change letter to the second. Also, the system in this case was automated and involved no human activity whatsoever. It was therefore determined that this system was sufficient to create the rebuttable presumption that the letter was properly mailed. The JCC also noted that Claimant’s Counsel never contested whether the letter had actually been received or not.
Michael Faby v. Mike Faby, Inc. and Florida Citrus Business Industry Fund
JCC Dietz: Melbourne District Order Date: February 8, 2017
OJCC Case: 16-009220 Date of Accident: 11/16/15
Claimant’s Counsel: Edward Combs E/C’s Counsel: Nicole Florentino
JCC Order: Click Here
Briefly: Compensability – After returning home from a job site in the Claimant’s work truck, the Claimant – who was also part owner of the employer – and his girlfriend left their residence on Claimant’s motorcycle. Shortly after leaving their home, the motorcycle was struck by a car, resulting in the girlfriend’s death and leaving the Claimant with significant injuries. Claimant argued that he was on his way to a potential job site so he could put in a bid for the job. The Employer/Carrier contended that the trip was purely a joyride and not within the course and scope of employment. The JCC ruled in favor of the Employer/Carrier and determined that the Claimant was not acting on behalf of the company and the time and denied compensability.
Summary: The JCC largely based the denial of compensability on the testimony of the general contractor in charge of the job site the Claimant contended he was in route to at the time of the accident. The Claimant and the contractor had already entered into an agreement for the Claimant to perform work on the job site so there was no need for the Claimant to submit a bid. The contractor also testified that in their previous dealings, he never required the Claimant to submit a bid. He also denied ever agreeing to meet the Claimant on the date of accident and stated that he was actually over 90 minutes away on that date.
Travelling on the motorcycle, without tools, with his girlfriend, with no obvious employer benefit to the trip, does not lend itself towards an award of compensability as opposed to if he was travelling in his company truck, with his tools, with a quantifiable, identifiable task. The JCC also denied Claimant’s argument that he may have seen potential work while riding his motorcycle. That argument would lead to the absurd result that any trip made for any purpose by the employer could be deemed to benefit the employer.
Nicholas Monteparo v. Panduit Corporation and Arrowpoint Capital
JCC Dietz: Melbourne District Order Date: February 9, 2017
OJCC Case: 12-019751 Date of Accident: 6/13/01
Claimant’s Counsel: Dennis Smejkal E/C’s Counsel: Warren Brown
JCC Order: Click Here
Briefly: Medical Benefits; Expert Opinion – The Claimant’s authorized pain management physician referred the Claimant for steroid injections which were subsequently denied by the Employer/Carrier as not medically necessary or casually related to the industrial accident. Only the pain management physician and the Employer/Carrier’s IME testified as to the MCC of the need for the injections. JCC Dietz rejected the pain management physician’s testimony because of his hostility towards Employer/Carrier’s counsel. Therefore, the JCC could only rely on the testimony of the Employer/Carrier’s IME and ruled that the need for injections was not casually related to the accident.
Summary: During the pain management physician’s deposition, the physician grew confrontational on cross examination. The physician took offense to the length of the deposition (approximately forty minutes from the start at this point with one hour reserved for the deposition) and the repetition of the questions. At one point he even stated that “the answers weren’t going to go well” for Employer/Carrier’s counsel. He eventually opined that the MCC of the need for injections was the workplace accident. The Employer/Carrier’s IME disagreed as to the MCC of the need for injections. While this normally would create a discrepancy appropriate for an EMA, the JCC disregarded the pain management physician’s testimony so there was actually no dispute for an EMA to address. The injections were accordingly denied based on the testimony of the Employer/Carrier’s IME.