FL Case Law Summaries – 4/19/16


Thomas G. Portuallo

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Bonnie J. Scott v. Sears Holding Corporate and Sedgwick Claims, as Servicing Agent for AIG

Appeal of the Order from JCC McAliley

DCA Order Date: April 14, 2016

Case: 1D15-3787; D/A: 10/23/1999

Appellant’s Counsel: Mark Zientz

Appellee’s Counsel: Mary Frances Nelson

Briefly: ATTENDANT CARE; CONSTITUTIONALITY – The 1st DCA ruled that F.S. §440.13(2)(b)1 does not contravene article X, section 24 of the Florida Constitution.  The DCA upheld the constitutionality of the statute which limits the payment of non-professional attendant care by family members to the Federal minimum hourly wage.

Summary: The claimant argued that F.S. §440.13(2)(b)1 contravenes article X, section 24, of the Florida Constitution which proscribes a minimum hourly wage that exceeds the Federal minimum hourly wage.  The 1st DCA rejected this argument and held that article X, section 24, of the Florida Constitution applies only to “employees” as defined by Federal law, and that family members providing non-professional attendant care pursuant to F.S. §440.13(2)(b)1 do not fall within that definition.


Wallace Cruz v. American Airlines and American Airlines Workers’ Compensation Department/Sedgwick CMS

JCC Medina-Shore; Miami District; Order Date: April 14, 2016

OJCC Case: 10-000260SMS; D/A: 9/21/2009

Claimant’s Counsel: Toni Villaverde

Employer/Carrier’s Counsel: Michael A. Hernandez

Briefly: STATUTE OF LIMITATIONS – JCC Medina-Shore evaluated the convoluted medical history surrounding two dates of accident, one involving a right shoulder injury and one involving a left shoulder injury.  The JCC found the statute of limitations did not run on the date of accident involving the left shoulder, the only claim presently at issue, and granted a return appointment and authorized treatment.

Summary: The claimant was involved in a compensable accident on June 8, 2008, involving his right shoulder and a second compensable accident on September 29, 2009, involving his left shoulder which is the only claim presently at issue.  The claimant filed a claim seeking medical care for his left shoulder and   the Employer/Carrier challenged the claim as a violation of the statute of limitations.

The JCC found the undisputed evidence is that claimant received medical care for both of his shoulders on February 12, 2014, and next received authorized treatment for his compensable left shoulder injury on February 16, 2015; therefore, the statute of limitations did not run.  Although the claimant did not complain of left shoulder pain at the February 16, 2015, office visit, the JCC found that Dr. Fernandez was authorized to treat both shoulder injuries and evaluated both shoulders at every visit, including on February 16, 2015.

The JCC also accepted the claimant’s testimony that the carrier communicated no need for pre-authorization for his appointments with Dr. Fernandez and that he had been scheduling his own medical appointments with Dr. Fernandez for years, for one or both shoulder injuries.  The JCC found the claimant reasonably believed that Dr. Fernandez was authorized for both shoulders.  The JCC found the carrier’s method of authorization of medical care for both dates of accident was confusing not only to the claimant but also to Dr. Fernandez and his office.  Therefore, the JCC found claimant’s accessibility to receive medical care to his left shoulder had been impacted by the carrier’s confusing method of authorization of medical care.

Tara Young v. Fort Walton Beach Medical Center/Broadspire

JCC Winn; Pensacola District; Order Date: April 15, 2016

OJCC Case: 13-020179NSW; D/A: 1/4/2013

Claimant’s Counsel: Bradley G. Smith

Employer/Carrier’s Counsel: William Thames

Briefly: MENTAL CONDITION; MISREPRESENTATION DEFENSE; PTD – JCC Winn found clear and convincing evidence established that the claimant suffers from depression due to physical injuries sustained as result of her industrial accident and requires psychiatric care.  The JCC also found the Employer/Carrier failed to satisfy its burden of proof with regard to the misrepresentation defense concerning mileage and that the claimant is permanently and totally disabled.

Summary: The JCC accepted the opinions of Dr. Laubenthal and Dr. Jagar, psychiatrists, that the major contributing cause of the claimant’s depression is the compensable back injury.  The JCC found their opinions were not contradicted and established clear and convincing evidence that the claimant suffers from depression due to her compensable physical injuries.

With regard to the misrepresentation defense, the Employer/Carrier contended the claimant submitted a mileage reimbursement form for travel to doctor appointments on various dates, but that there was no record she had any appointments on such dates and no record that she was seen by the doctors on those dates. The claimant admitted she did not have appointments with any of the doctors on any of those dates, but insisted she did travel to each doctor as indicated as she had been unsuccessful in attempts to schedule appointments with the doctors and made such trips as she was in need of care, treatment, and catheters.  The JCC found the Employer/Carrier failed to prove she did not travel to the doctors’ offices as indicated, or that the claimant’s testimony regarding such travel was not credible.

With regard to the award of permanent total disability benefits, the JCC noted that although maximum medical improvement has not been reached, the claimant has been provided with 104 weeks of temporary benefits and is entitled to prove permanent total disability pursuant to one of the three methods as outlined in Blake, 43 So. 3d 882 (Fla. 1st DCA 2010).  The JCC noted the claimant’s psychiatrist, Dr. Jagar, has stated the claimant is “physically” limited to engaging in any work due to her psychiatric/mental injuries.  The JCC found that an injured worker who is totally disabled when his or her 104 weeks of entitlement to temporary benefits comes to an end, is, by law, deemed to be at maximum medical improvement and may seek permanent total disability benefits.

Debra McQueen v. Advance Auto Parts/Sedgwick CMS

JCC Spangler; Panama City District; Order Date: April 15, 2016

OJCC Case: 14-023880EDS; D/A: 8/8/2014

Claimant’s Counsel: Stephen Andrews

Employer/Carrier’s Counsel: D. Robert Swanson

Briefly: TEMPORARY PARTIAL DISABILITY – JCC Spangler awarded the claimant temporary partial disability benefits and found she sustained a reduction in her actual earnings and that the Employer/Carrier offered no evidence to sustain any of the defensive arguments it asserted.

Summary: The JCC found the claimant did return to work for the Employer in a modified position per work restrictions recommend by the treating physicians.  However, the Employer eventually ceased accommodating the claimant’s restrictions as she was not placed on the work schedule.  The Employer/Carrier argued the reasons for this change had nothing to do with the claimant’s injuries, but were the result of economic circumstances, loss of business, and/or alterations being made to the store.  The JCC found no evidence was presented to verify these contentions.

The JCC found the claimant is not at maximum medical improvement, was assigned sedentary restrictions by her physicians, and that the Employer stopped accommodating her restrictions by eliminating the sedentary position the claimant had filled.  The JCC found the claimant sustained a reduction in her actual earnings and did not need to prove anything else to be entitled to temporary partial disability benefits.

Richard Jason Price v. City of Lauderhill Fire Dept./Alternative Service Concepts

JCC Hogan; Ft. Lauderdale District; Order Date: April 15, 2016

OJCC Case: 14-007068GBH; D/A: 2/9/2013

Claimant’s Counsel: James R. Spears

Employer/Carrier’s Counsel: Darrel T. King

Briefly: REHAB TTD PER F.S. §440.491 – JCC Hogan granted the claim for temporary total disability benefits pursuant to F.S. §440.491(6)(b) for so long as the claimant continues to meet the requirements of his individualized plan for employment.

Summary: In defense of rehab TTD, the Employer/Carrier asserted there was no vocational re-employment assessment performed by an authorized provider under the statute, and that the Employer/Carrier did not have an opportunity to look over the decision-making process implemented by the Division of Vocational Rehabilitation.

The JCC found that the Division, not the JCC, is authorized to approve training and education and other vocational services of employment.  The JCC found that although the JCC has jurisdiction to award up to an additional twenty-six weeks of temporary total disability benefits, the JCC does not have jurisdiction over rehabilitation and re-employment services.  As such, based upon the testimony of the claimant and the Division representative, the JCC found the evidence supports a finding that additional weeks of temporary total disability benefits are necessary and proper to assist the claimant with completing his education.

The JCC noted the claimant receives re-employment services offered by the State of Florida and started attending Broward College in the summer of 2014 and plans to attend a physician’s assistant program at the University of Florida.  The JCC found that claimant intends to use the temporary total disability benefits while completing the physicians’ assistant program in Gainesville.

Melissa Loeffelholz v. St. Vincent Healthcare Foundation/Sedgwick CMS

JCC Humphries; Jacksonville District; Order Date: April 13, 2016

OJCC Case: 13-012624RJH; D/A: 9/14/2012

Claimant’s Counsel: Jonathan Israel

Employer/Carrier’s Counsel: Richard Stoudemire

Briefly: GOING AND COMING RULE EXCEPTIONS; TRAVELING EMPLOYEE – JCC Humphries granted the claim for compensability and found the claimant was a campaign coordinator who was instructed to deliver a meal to a donor and was involved in a motor vehicle accident on the way home.  The JCC found the claimant was performing a special errand, an exception to the “going and coming” rule.

Summary: The JCC found it was not unusual for the claimant to make deliveries to donors or others as part of her job and that her trip to deliver a meal to a donor served a dual purpose of performing one of the duties of her job while at the same time allowing her to go home early after the completion of the delivery.  The JCC found the claimant was on a special errand, albeit with a dual purpose, when she was involved in the motor vehicle accident.  The JCC cited case law authority reflecting that if there is a dual purpose for travel, a concurrent cause of which was a business purpose, and even if the travel also served a personal purpose, the accident which occurs as the result of the travel is compensable.

The JCC rejected the Employer/Carrier’s argument that the claimant was a traveling employee as defined in F.S. §440.092(4) at the time of the accident.  The JCC concluded that a single trip with a single purpose, irregularly performed, would not classify the claimant as a traveling employee subject to the provision of the statute.

Amable J. Moya v. Trucks and Parts of Tampa, Inc./Ameritrust Insurance Company

JCC Massey; Tampa District; Order Date: April 13, 2016

OJCC Case: 06-022730MAM; D/A: 9/16/2005

Claimant’s Counsel: Bradley Smith

Employer/Carrier’s Counsel: Gregory White

Briefly: STATUTE OF LIMITATIONS; LACK OF PROSECUTION UNDER F.S. §440.25(4)(i) – JCC Massey found good cause existed to deny the Motion to Dismiss for Lack of Prosecution and, therefore, he rejected the statute of limitations defense and granted the claim for medical treatment.

Summary: The JCC found the only activity for the one year period of time prior to the filing of the Motion to Dismiss for Lack of Prosecution on March 31, 2015, was the Supreme Court of Florida’s Order dated July 3, 2014, declining to accept jurisdiction over the appeal of a prior Summary Final Order in this case related to a separate Petition for Benefits.  The claimant argued the Supreme Court’s Order of July 3, 2014, is sufficient Record activity to move the case in general forward, even if it does not relate to the specific Petition at issue and that the twelve month period is tolled.

The JCC found the Supreme Court Order of July 3, 2014, was an “Order” for purposes of Section 440.25(4)(i) and since that Order was filed less than twelve months prior to the filing of the first Motion to Dismiss for Lack of Prosecution, the Motion to Dismiss should have been denied on that basis.

The JCC rejected the statute of limitations defense on the grounds that the Motion to Dismiss for Lack of Prosecution should have been denied.

James E. Oldaker v. Vista Properties, Inc./Zenith Insurance Company

JCC Dietz; Sebastian-Melbourne District; Order Date: April 13, 2016

OJCC Case: 15-015236RLD; D/A: 6/4/2015

Claimant’s Counsel: Olivia Devonmille

Employer/Carrier’s Counsel: Brendan McGettigan

Briefly:  DRUG USE UNDER F.S. §440.09(3)  – JCC Dietz granted the claim for compensability of the industrial accident and rejected the Employer/Carrier’s affirmative defense that the industrial accident was occasioned primarily by the claimant’s marijuana use.

Summary: The JCC noted three witnesses testified that the claimant did not appear intoxicated or high from any drugs or substances around the time of the accident.

The JCC found that even if the claimant was intoxicated at the time of the accident, the accident was not occasioned primarily by the influence of any drugs not prescribed by a physician pursuant to F.S. §440.09(3).

The JCC explained that the claimant was operating a “roller”, a piece of heavy equipment used for the purpose of flattening greens and tee boxes on the golf course.  The claimant was on the roller, going up a slope he had just safely come down from, when the roller started to slide.  The claimant attempted to jump from the side of the roller but slipped on the metal deck and the roll bar pinned his leg, crushing his right leg and foot, and fracturing his ankle.  As a result, the JCC found there is no basis for determining whether the claimant was taking undue risk in the operation of the roller, or whether that risk behavior was due to the claimant’s prior use of marijuana.

The JCC found there was no probative evidence the claimant was impaired at the time of his accident, or that he could have escaped injury had his reflexes not otherwise been impaired because of the influence of marijuana. The only medical evidence presented by the Employer/Carrier were studies identified by Dr. McCluskey, one of which indicated that impulse control in occasional and heavy cannabis users can be impacted.  No indication was given as to how this was to be measured or evaluated in this specific case.

Mauro Gomez v. Florida Citrus, Business & Industries Fund, Prfect Solutions Contracting Corp./USIS

JCC Holley; Jacksonville District; Order Date: April 13, 2016

OJCC Case: 14-002529WRH; D/A: 11/19/2013

Claimant’s Counsel: D. Robert “Bobby” Wells

Employer/Carrier’s Counsel: Mark H. Gelman

Briefly: MAJOR CONTRIBUTING CAUSE; BREAK IN CAUSATION CHAIN – JCC Holley granted the claim for authorization of a follow-up medical appointment with an authorized doctor, and found the Employer/Carrier did not sufficiently establish that a break in the chain of causation occurred or that the industrial injury was not the major contributing cause for the need for the requested treatment.

Summary: The JCC found there is no medical evidence of a pre-existing medical condition or degeneration to explain claimant’s current condition.  The JCC noted that following the accident, the claimant never reported to any of the medical providers that he was fully or substantially healed or pain free. Instead, the claimant consistently reported pain throughout his medical treatment to his providers which was corroborated at least in part with objective findings.  Although the medical evidence demonstrated claimant was placed at maximum medical improvement with a 0% permanent impairment rating, the claimant was referred to pain management which was authorized.

The JCC found that, although it is likely the claimant’s continuing pain is caused at least in part by subsequent employment as a painter, the evidence did not reflect a subsequent, intervening accident, injury, condition, or cause that sufficiently met the major contributing cause standard.

The authorized pain management physician, Dr. Kramarich, testified without contradiction that the cause of the claimant’s current need for care was the overhead shoulder activity involved in the claimant’s subsequent employment as a painter as revealed in the surveillance video. Although the JCC noted Dr. Kramarich opined that additional medical treatment related to the industrial accident was not medically necessary, the JCC found it was reasonable for the claimant to pursue medical care with a primary care physician, but not necessarily at Dr. Kramarich’s level of care.

Notwithstanding the award of medical treatment, the JCC found the claimant had credibility issues in light of his conflicting testimony at the final hearing, deposition, and in his actions on surveillance video.  The JCC found the parties agreed to defer adjudication on the misrepresentation issue until a later proceeding and jurisdiction was reserved on this defense.