FL Case Law Summaries – 3/8/16
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1ST DCA ORDERS
Lowe’s Home Centers, Inc./Sedgwick CMS v. Sandra K. Beekman
Appeal of the Order from JCC Rosen
DCA Order Date: March 4, 2016
Case: 1D15-2639; D/A: 7/17/2013
Appellant’s Counsel: Kevin S. Murphy
Appellee’s Counsel: Kimberly A. Hill
Briefly: EXPERT MEDICAL ADVISOR – The 1st DCA held that the opinions of the EMA intended to carry the presumption of correctness are only those opinions that address the already identified disagreements in medical opinions; other medical opinions expressed by the Expert Medical Advisor are admissible, but carry the same weight as that of an Independent Medical Examiner, or an authorized treating physician.
Summary: The JCC found there was a disagreement in the medical opinions of two physicians with regard to diagnosis, causal relationship, and the recommended course of treatment. Thus, the JCC found it was appropriate to appoint an Expert Medical Advisor. At the final hearing, the JCC announced that he would not rely on the opinions rendered by the Expert Medical Advisor on the issue of apportionment. On appeal, the Employer/Carrier argued that the JCC erred as a matter of law in excluding relevant medical evidence.
The DCA explained that the statute is ambiguous as to the scope of the presumption of correctness of EMA opinions. After looking at legislative intent for guidance, the DCA held that all of the opinions of an Expert Medical Advisor are admissible and that those opinions voiced by an EMA that “exceed the scope” of the preceding disagreement would be admissible – but not presumptively correct. The DCA reversed the JCC’s order excluding the Expert Medical Advisor’s relevant opinions regarding apportionment, an issue outside the scope of the issues initially posed to the EMA by the JCC.
JCC ORDERS
Jon Jackson v. Da Big Kahuna Restaurant and Tiki Lounge/Summit Holdings Claim Center
JCC Lewis; Ft. Lauderdale District; Order Date: March 4, 2016
OJCC Case: 15-007779DAL; D/A: 12/4/2013
Claimant’s Counsel: Eric Berger
Employer/Carrier’s Counsel: Scott Silver
Briefly: PENALTIES AND INTEREST – JCC Lewis denied the claim for penalties and interest on the untimely payment of settlement funds and found there was no mutual assent or meeting of the minds as to the time period for payment of the settlement funds.
Summary: The JCC found the parties did not agree, as part of the settlement bargain, to the payment of penalties and interest if proceeds were not paid within a time period from the date of the entry of the order approving the attorney’s fees and allocation of child support arrearage.
The JCC explained that case law instructs us that settlement agreements are interpreted and governed by the law of contracts and that the burden of proof is on the party seeking the judgement on the basis of compromise and settlement to establish assent by the opposing party and it is never the role of the trial court to reform or rewrite a settlement agreement or contract to make it more reasonable for one of the parties.
April Stottan v. Community Hospice of Northeast Florida/Comp Options/AmTrust North America of Florida
JCC Holley; Jacksonville District; Order Date: March 4, 2016
OJCC Case: 14-027496WRH; D/A: 3/5/2015
Claimant’s Counsel: Michael Rudolph
Employer/Carrier’s Counsel: Mark S. Kluger
Briefly: MISREPRESENTATION DEFENSE – JCC Holley rejected the misrepresentation defense, granted the claim for compensability, and accepted the claimant’s explanation that the use of her company credit card for personal expenses was a repayment of a debt owed to her and the claimant did not misrepresent or deceive the carrier in marking zero dollar earnings on the DWC-19 form. The JCC also found the claimant did not knowingly misrepresent to her treating physician that she was incapacitated with pain and that she was not currently working.
Summary: The JCC stated that at first glance, the claimant’s statements to her treating physician that she was incapacitated with pain and not working appear to qualify as misrepresentations. However, the JCC explained the doctor was unable to definitively testify as to the claimant’s specific statements and that the doctor readily admitted that there may have been statements made that he did not record in his notes. Instead, the doctor was only able to testify as to his general observations and/or methodology with all his patients in reaching such a determination as to incapacitation.
As to the doctor’s notation that the claimant was not working, the JCC found it would be reasonable to infer that the claimant could have interpreted that question to mean, “Have you returned to work at your job” or advised the doctor that she had not returned to her job. Based upon the doctor’s lack of independent recollection, it was not clear to the JCC if the “not working” statement was a “carry over” from previous reports.
Further, the JCC found the claimant made other inconsistent statements in her deposition that would certainly constitute as misleading statements, but it was not shown how such statements were given for the purpose of obtaining workers’ compensation benefits and the statements did not alter the JCC’s ultimate legal conclusion.
Gladys Girtman v. VoTran/FHM Insurance Company
JCC Anderson; Daytona Beach District; Order Date: March 3, 2016
OJCC Case: 15-008863WWA; D/A: 12/7/2014
Claimant’s Counsel: Thomas A. Vaughn
Employer/Carrier’s Counsel: John G. Brady
Briefly: PERMANENT TOTAL DISABILITY – JCC Anderson awarded permanent total disability benefits and found the restrictions placed on the claimant by her authorized physician, Dr. Hood, are work-related by operation of law and that the claimant satisfied the second and third tests under Blake v. Merck & Company, 43 So, 3d 882 (Fla. 1st DCA 2010).
Summary: Claimant’s authorized treating orthopedic surgeon, Dr. Hood, testified that there is no way to tell if Claimant’s condition post-MMI is related to injuries sustained in the industrial accident. Nevertheless, the JCC found the work restrictions placed on the claimant by Dr. Hood are work-related by operation of law and found the Employer/Carrier never invoked a 120-day rule under F.S. §440.20(4). Instead, the JCC noted the Employer/Carrier authorized Dr. Hood to treat the claimant and the Employer/Carrier continued to provide the claimant with medical benefits. Also, the Employer/Carrier stated at the beginning of the final hearing that it was not asserting a major contributing cause defense to the entire claim. The JCC found that the carrier was attempting “an end run around the 120-day rule” as interpreted by the case of Sierra v. Metro. Protective Services, 40 FLWD 2209 (Fla. 1st DCA 2015). Therefore, despite Dr. Hood’s deposition testimony, the JCC found the sedentary work restrictions placed on the claimant are work-related by law, with there being no intervening accident or unrelated condition to disrupt the causal relationship.
Based upon the claimant’s job search record and the expert vocational testimony of John Roberts presented by the claimant, the JCC found the claimant is entitled to permanent total disability benefits under the second and third prongs of the Blake test. The JCC found the claimant to be credible and that her job search was both lengthy and exhaustive. Further, the JCC accepted Mr. Roberts’ opinion that the claimant is unemployable in the open market.