FL Case Law Summaries – 4/14/16
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JCC ORDERS
Darcy Moore v. The Angelus/FARA, A York Risk Services Company
JCC Rosen; St. Petersburg District; Order Date: April 12, 2016
OJCC Case: 15-023141SLR; D/A: 8/24/2015
Claimant’s Counsel: Joseph M. Rooth
Employer/Carrier’s Counsel: Ronald P. Greninger
Briefly: VOLUNTARY LIMITATION OF INCOME; TPD – JCC Rosen denied the claim for temporary partial disability benefits and found the claimant unreasonably refused employment within her restrictions offered by the Employer and that she made no attempt to return to work in any capacity within her restrictions.
Summary: The JCC found the Employer offered the claimant a job within her restrictions in the guard shack. The JCC reviewed video and photographs of the Employer’s premises and found the claimant could have alternated sitting and standing and that the guard shack had electricity and a place for a fan. The Employer also offered her a cell phone as well as transportation to and from the main office and would have made accommodations by providing ice for her knee and breaks as necessary. The JCC found the claimant unreasonably refused to even attempt the job offered by the Employer.
The JCC acknowledged that, although the claimant voluntarily limited her income and unreasonably refused to accept a job within her physical limitations, she may still be eligible for temporary partial disability compensation if she made any effort to return to the labor market during the disputed time period. However, the JCC found the claimant made no other attempt to return to work in any capacity within her restrictions during the period at issue.
Judith Lanier v. Merit Resources (Aston Gardens)/ Zurich American Insurance Company
JCC Forte; Ft. Lauderdale District; Order Date: April 12, 2016
OJCC Case: 15-021671IF; D/A: 8/27/2015
Claimant’s Counsel: Jason Weisenberg
Employer/Carrier’s Counsel: Gwen G. Jacobs
Briefly: MAJOR CONTRIBUTING CAUSE; COMPENSABILITY – JCC Forte granted the claim for compensability of a left ankle injury even though the claimant had multiple prior accidents that resulted in fractures and surgeries in her lower extremity and used a cane to walk long distances. The JCC found she did not suffer from ongoing medical problems associated with her pre-existing injuries and that the Employer/Carrier failed to meet their burden to show the accident was caused by a pre-existing or idiopathic condition.
Summary: The JCC noted the Employer/Carrier’s IME physician, Dr. Steinlauf, opined the claimant’s prior injuries may have had an impact on her gait and that, hypothetically, she may be more inclined to sustain falls. However, he did not attribute this fall to her gait, loss of balance, or to any pre-existing conditions.
The JCC accepted the opinion of the claimant’s IME physician, Dr. Spinner, that there was no evidence that an idiopathic condition caused the claimant’s fall.
Dianne McFarlane v. Miami Dade Transit/Miami Dade County Risk Management
JCC Castiello; Miami District; Order Date: April 12, 2016
OJCC Case: 11-021897GCC; D/A: 8/6/2009
Claimant’s Counsel: Bradley D. Asnis
Employer/Carrier’s Counsel: Lynda S. Slade
Briefly: AUTHORIZATION OF MEDICAL TREATMENT; ONE-TIME CHANGE – JCC Castiello denied the claim for authorization of Dr. Kenneth Hodor and found the claimant received the appropriate authorized care that she was entitled to and found the Employer/Carrier appropriately responded to the request for a one-time change in physicians with the authorization of Dr. Michael Feanny.
Summary: The claimant sustained compensable injuries to her right shoulder, arm, and wrist. Dr. Baylis was authorized to treat her shoulder and Dr. Hodor was authorized to treat her wrist. The claimant filed a Petition for Benefits in September 2011 for a one-time change in physicians from Dr. Baylis to Dr. Rosencwaig. The adjuster responded by authorizing Dr. Michael Feanny within the five-day time period. The claimant continued to see Dr. Feanny for four and half years and saw Dr. Hoder until March 2012. After that, the claimant treated exclusively with Dr. Feanny for both the shoulder and the wrist. In September 2015, the claimant filed a Petition for Benefits seeking renewed authorization of Dr. Hodor.
The claimant argued that Dr. Feanny’s authorization only replaced Dr. Baylis and was limited in application to the claimant’s shoulder. However, the JCC found the claimant acquiesced to Dr. Feanny treating both her right shoulder and wrist injuries for over four years. The JCC found the claimant even agreed to have Dr. Feanny perform the right wrist surgery that Dr. Hodor recommended in 2012 but could not perform himself. The JCC noted that no objection was voiced by the represented claimant to Dr. Feanny treating the claimant’s wrist.
The JCC found the claimant’s actions indicate she knew Dr. Hodor was no longer authorized for further treatment as a result of her treatment with Dr. Feanny, including surgery, since 2011. In making his determination, the JCC found the principle consideration at issue is the provision of authorized medical care on an uninterrupted basis. The JCC found the claimant was not wronged in any way and that the provision of necessary medical services was not delayed.
Edinson Ramirez v. Tire Centers, LLC/Liberty Mutual Insurance Group
JCC Forte; Ft. Lauderdale District; Order Date: April 12, 2016
OJCC Case: 08-025325IF; D/A: 1/3/2008, 3/6/2008
Claimant’s Counsel: Mitchell S. Shea
Employer/Carrier’s Counsel: James M. Hess
Briefly: ATTORNEY’S FEE – JCC Forte awarded an attorney’s fee in the amount of $4,585.00 based upon 13.1 hours of attorney time at $350 per hour, for this 2008 date of accident. The JCC previously awarded claimant’s counsel $350 per hour in another case and found that the same hourly rate was reasonable under these circumstances.
Paul Mikols v. Broward Sheriff’s Office/Gallagher Bassett Services, Inc.
JCC Lazzara; Ft. Lauderdale District; Order Date: April 12, 2016
OJCC Case: 15-013233JJL; D/A: 7/4/2009
Claimant’s Counsel: Andrea L. Wolfson
Employer/Carrier’s Counsel: Neal C. Falk
Briefly: STATUTE OF LIMITATIONS – JCC Lazzara denied the claim for workers’ compensation benefits and found the statute of limitations had expired.
Summary: The JCC found the claimant offered no credible evidence that he made any attempt to seek medical treatment with the authorized physician, Dr. Eastlick, within one year from the date of the last authorized visit. The JCC found the claimant did not call the doctor’s office for the purpose of setting an appointment during the one year period of time, but rather that the claimant called to request copies of his records. The JCC accepted the doctor’s testimony over that of the claimant as more credible and unbiased on this issue.
The JCC also rejected the claimant’s argument that the Employer/Carrier agreed to provide unfettered authorization of future medical care with Dr. Eastlick and accepted the insurance adjuster’s testimony that she would never authorize medical visits indefinitely.
Mary Heinle v. Miami Dade County Public Schools/Gallagher Bassett Services, Inc.
JCC Kerr; Miami District; Order Date: April 11, 2016
OJCC Case: 09-005410MGK; D/A: 5/5/2004, 8/20/2005, 8/31/2005, 10/7/2008, 9/27/2010
Claimant’s Counsel: Mario Arango
Employer/Carrier’s Counsel: Leticia Coleman
Excess Carrier’s Counsel: Nathan Kaplan
Briefly: TRANSFER OF CARE PURSUANT TO F.S. §440.13(2)(d); “SELF-HELP” CARE – JCC Kerr found the transfer of care away from Dr. Vega was conducted in accordance with the requirements of F.S. §440.13(2)(d) and was appropriate. The JCC also accepted the adjuster’s testimony that the claimant made no requests to treat with Dr. Trombly before seeking his services on her own and therefore denied her claim that she was entitled to self-procure care with Dr. Trombly under F.S. §440.13(13)(b).
Summary: The JCC found the Employer/Carrier appropriately utilized F.S. §440.13(2)(d) to transfer care away from Dr. Vega. The JCC found the Employer/Carrier availed itself of an IME with Dr. Ray who testified the amount of injections provided to the claimant by Dr. Vega were not within the standard of care and that rather than improve with his care, the claimant’s condition worsened over time, both physically and psychologically. The JCC noted that Dr. Ray testified the claimant needs a different approach to her care. Further, the JCC found the claimant had not yet attained maximum medical improvement.
The JCC accepted Dr. Ray’s opinion over that of the claimant’s IME physician, Dr. Mouhanna, based upon Dr. Ray’s extensive and detailed review of Dr. Vega’s treatment and experience.
With regard to the claim for authorization of Dr. Trombly under the self-help provision of F.S. §440.13(13)(b), the JCC distinguished this case from Parodi v. Florida Contracting Company, Inc., 16 So. 3d 958 (Fla. 1st DCA 2009), on the grounds there was no evidence the claimant made any contact with the Carrier or filed any requests for care. The JCC found the claimant gave the Employer/Carrier no opportunity to cure the denial of care by claimant’s prior authorized physician, Dr. Brown. The JCC noted that under the self-help provision of Parodi, is appropriate only when “care has been wrongfully denied and the Employer or Carrier has been afforded a reasonable opportunity to provide care”.
Additionally, the JCC found the claimant had treated with multiple physicians in multiple specialties all obtained through workers’ compensation over the years. The JCC found “it stretches reason to believe claimant did not know to ask for care through the workers’ compensation system.”
The JCC noted the claimant did not argue that the care provided by Dr. Trombly was emergent in nature and provided no evidence of an emergency which would otherwise entitle her to seek self-help.