FL Case Law Summaries – 3/9/16
BY:
To receive daily e-mails with case law summaries, e-mail: Colette Duke
JCC ORDERS
Leon McQuay v. Envirofocus Technologies, LLC/Chartis Insurance
JCC Lorenzen; Tampa District; Order Date: March 7, 2016
OJCC Case: 15-022935EHL; D/A: 1/6/2014
Claimant’s Counsel: Manuel Franco
Employer/Carrier’s Counsel: Mitchell Golden
Briefly: ONE-TIME CHANGE – JCC Lorenzen awarded a one-time change of physicians and found the letter from claimant’s counsel was sufficient to put the Employer/Carrier on notice that the claimant was seeking a one-time change.
Summary: The JCC found the adjuster received a letter from claimant’s counsel announcing he was representing the claimant, enclosing a Request to Produce, and requesting authorization of medical care pursuant to F.S. §440.13(2)(f). The adjuster did not respond to the letter and did not authorize a one-time change of physician until more than five days later, after a Petition for Benefits was subsequently filed.
The JCC rejected the Employer/Carrier’s argument that the letter was insufficient to request a one-time change of physicians because it was not addressed to a specific adjuster or mailed to a local claims office. Instead, the JCC found the adjuster conceded she was notified on September 10, 2015, that the carrier received the letter and that the adjuster did not authorize a new doctor within five days of receipt of the letter.
The JCC also considered the letter in light of Gonzalez v. Quinco Electrical and Zenith, 171 So. 3d 153 (Fla. 1st DCA 2015) and found the letter was readily apparent, unobscured, and unambiguous, to advance the purpose of placing the Employer/Carrier on notice that a request for a one-time change was being made.
The letter in its entirety states as follows:
Dear Claims Adjuster:
Please be advised I have the privilege of representing Leon McQuay for the above-captioned Florida Workers’ Compensation case. Enclosed you will find my Notice of Appearance, as well as a Request to Produce. Please provide me your response at your earlier opportunity. Additionally, please be advised my client requests an appointment be scheduled for him pursuant to F.S. §440.13(2)(f). Please notify my office once this has been accomplished so that I may notify my client of the same.
Thank you for your time and attention to this matter. If you have any questions or need additionally information please do not hesitate to contact me.
Mark Spofford v. Dixie Metal Products, Inc./Amerisure Insurance
JCC Hill; Gainesville District; Order Date: March 7, 2016
OJCC Case: 15-015853MRH; D/A: 6/2/2014
Claimant’s Counsel: Mark Tipton
Employer/Carrier’s Counsel: William Rogner
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Hill denied authorization of medical treatment for the claimant’s lumbar spine and noted the Employer/Carrier accepted compensability of injuries to the claimant’s neck and shoulders, and that the claimant was still required to prove the work accident is the major contributing cause of his lumbar back injury and need for treatment. The JCC found that two physicians testified that the claimant’s lumbar spine MRI’s established that the claimant’s lumbar spine condition was essentially the same before and after the work accident.
Summary: The JCC found that prior to the industrial accident, the claimant appeared to have periodic low back pain from 1986 forward, and in 1998 he had a motor vehicle accident injuring his low back, in 2000 he had a motorcycle accident in which he again injured his low back and underwent surgery, and in 2012 he had another motor vehicle accident where he injured his low back. After each of these accidents he was able to return to work full duty. Following the work accident at issue, the claimant had periodic back pain of a different quality and on both the right and left sides of his low back. The JCC also found that claimant did not report back pain for three months following the industrial injury.
The JCC accepted medical opinions that the objective MRI results both pre- and post- accident indicate claimant’s lumbar spine condition was essentially the same before and after the work accident.
Annabella Pinera v. Target/Sedgwick CMS
JCC Hill; Gainesville District; Order Date: March 7, 2016
OJCC Case: 13-011303MRH; D/A: 3/4/2013
Claimant’s Counsel: Grethel San Miguel
Employer/Carrier’s Counsel: David Gold
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Hill found the industrial accident was the major contributing cause of the claimant’s disability and awarded temporary partial disability benefits.
Summary: The JCC found the claimant established entitlement to temporary partial disability benefits based upon the totality of circumstances, including two compensable accidents with this Employer. The JCC found that after the claimant’s second accident her work restrictions became more stringent due to her physical limitations and that she could not physically perform her original job or the job she was performing after her first accident. Additionally, the JCC found the claimant was working significantly fewer hours after her second accident, resulting in a wage reduction below 80% of her pre-injury average weekly wage.
Charles L. Baggett as Personal Representative of the Estate of Charles E. Baggett v. Fegles Power Service/Travelers
JCC Sculco; Orlando District; Order Date: March 7, 2016
OJCC Case: 14-004360TWS; D/A: 7/20/1980
Claimant’s Counsel: Adam R. Littman
Employer/Carrier’s Counsel: John R. Gierach
Briefly: JCC’S JURISDICTION OVER HOME MODIFICATIONS – JCC Sculco found he lacked jurisdiction to determine claims for authorization of repair to the deceased injured worker’s home due to damage allegedly caused by the Employer/Carrier’s prior alterations to make the home handicapped-accessible.
Summary: The JCC noted the injured worker required a handicapped-accessible shower and the Employer/Carrier contracted with The David Corey Company to perform the necessary work on the home prior to the injured workers’ death. Following the injured workers’ death, the Estate of Charles E. Baggett filed a Petition for Benefits requesting compensability and authorization of repair of the home which is now unsafe and in violation of the Florida Building Code, due to damage allegedly caused by the Employer/Carrier’s prior alterations to the home.
The JCC found he lacked subject-matter jurisdiction to enforce a contractual obligation between the Employer/Carrier and a third party contractor for the benefit of a now-deceased injured worker. The JCC noted the contract at issue here involves a non-party to the case, The David Corey Company. Consequently, interpreting and giving effect to the agreement would necessarily involve a determination of the rights and responsibilities of an entity that is not a party to the workers’ compensation action, and such a determination would violate the due process rights of The David Corey Company as they were not afforded notice and opportunity to be heard.
The JCC found that since the injured worker has passed away, home modifications or repairs cannot be medically necessary. Rather, the claims for home modifications or repairs seek redress for damage to the property of Mr. Baggett.
The JCC noted that any claims of Mr. Baggett’s estate relating to the contract, or relating to any negligent or intentional tort that may have been committed by either Travelers or The David Corey Company are within the exclusive jurisdiction of the Circuit or County Courts of the State.
Tamara Barroso v. Wyndham Worldwide Corp./Liberty Mutual Insurance
JCC Basquill; West Palm Beach District; Order Date: March 7, 2016
OJCC Case: 15-015516TMB; D/A: 6/14/2015
Claimant’s Counsel: David C. Wiitala
Employer/Carrier’s Counsel: Robert Swanson
Briefly: AGGRESSOR DOCTRINE – JCC Basquill denied the Employer/Carrier’s defense that compensability of the claim is barred due to the Aggressor Doctrine and found the claimant was attacked from behind by a co-employee.
Summary: The JCC found the claimant worked as a room attendant for a hotel and was attacked from behind by a co-employee. The JCC found the motive for the attack appeared to be complaints the claimant made to the manager about the co-employee’s husband’s work at the same Employer.
The JCC found the claimant satisfactorily proved a causal connection between her work-place injury, her loss of employment, and her lost wages at issue.
Stephen Andrew Smith v. Crisp Plumbing, Inc./AmTrust North America of Florida
JCC Beck; Sarasota District; Order Date: March 7, 2016
OJCC Case: 15-011020DBB; D/A: 5/29/2014
Claimant’s Counsel: Ivan D. Voronec
Employer/Carrier’s Counsel: Robert J. Grace, Jr.
Briefly: EXPERT MEDICAL ADVISOR; TPD – JCC Beck denied the Employer/Carrier’s Motion for Expert Medical Advisor which was filed two days before the final hearing, and both awarded and denied TPD benefits.
Summary: The JCC found the Motion for Expert Medical Advisor filed two days before the final hearing was not filed in a reasonably prompt manner when the conflict in medical opinions was apparent five months prior to the pretrial.
Based upon the totality of the evidence, the JCC accepted the opinion of Dr. Ashvin Patel, authorized orthopedic surgeon, over that of Dr. Mark Lonstein, authorized orthopedic surgeon, as Dr. Patel saw the claimant on more occasions and most recently. The JCC found that the claimant is not at maximum medical improvement and had work restrictions since he first saw Dr. Patel that would not allow him to return to his prior plumbing duties.
The JCC awarded temporary partial disability benefits, but also denied temporary partial disability for a period of time following the claimant’s resignation from employment until his condition worsened pursuant to the opinions of the physicians.
Jose Canoa v. City of Hollywood/Employers Mutual, Inc., Ascension Insurance
JCC Lewis; Ft. Lauderdale District; Order Date: March 7, 2016
OJCC Case: 12-028912DAL; D/A: 5/9/2011
Claimant’s Counsel: Jo Ann Hoffman
Prior Employer/Carrier’s Counsel: Kevin Gallagher
Employer/Carrier’s Counsel: Daniel Simpson
Briefly: MOTION TO COMPEL VERIFIED FEE PETITION – JCC Lewis ordered that claimant’s prior counsel shall file a Verified Motion for Attorney’s Fees and Costs within 45 days. The Employer/Carrier’s Motion to Compel Verified Fee Petition was filed on January 18, 2016, and the prior attorney’s response was filed on January 22, 2016.
Summary: The claimant’s prior counsel argued that a Fee Petition is premature at this time since the claimant’s case has not yet settled and the value of the benefits flowing from his intervention and representation are not readily ascertainable at this time. However, the JCC pointed out that claimant’s prior counsel is also seeking an attorney’s fee from the claimant on past benefits paid as well as for securing a follow-up appointment with a medical physician. Accordingly, the JCC limited the Verified Fee Petition to address only the issue of claimant’s prior counsel’s entitlement to attorney’s fees and costs recoverable and not the amount of the fee. The JCC explained the value of the benefits secured is only relevant to the issue of the amount of the fees due and not to the issue of entitlement to a fee.