FL Case Law Summaries – 4/26/16
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JCC ORDERS
Sonya Thompson v. CarQuest Auto Parts/Liberty Insurance Corporation
JCC Rosen; St. Petersburg District; Order Date: April 22, 2016
OJCC Case: 15-005119SLR; D/A: 7/7/2009
Claimant’s Counsel: Christopher Petruccelli
Employer/Carrier’s Counsel: Frank D. DeCiutiis
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Rosen awarded permanent total disability benefits and found that permanent work restrictions coupled with vocational evidence from Ms. Cash-Howard established the claimant is unable to engage in even sedentary employment within a 50-mile radius of her home and that the claimant conducted an exhaustive, good faith job search.
Summary: The JCC noted the claimant is a 54 year-old woman with a high school education, very little vocational training, and work experience as a cashier, child care provider, and driver for the Employer. She sustained a trip and fall injury resulting in a left ankle injury and numerous surgeries and it is recommended she have a fusion-type surgery which has not yet taken place. The claimant received a 6% permanent impairment rating and it was noted that her toes on her injured foot are permanently curled and she has cramping in the left leg along with muscle spasms. She has been medically prescribed a cane and uses a motor scooter and a wheelchair.
The JCC accepted the testimony of vocational expert, RobynAnne Cash-Howard, who found the claimant does not possess transferrable skills and most likely would not be a good candidate for retraining. The claimant was also evaluated by vocational expert Georgia Bailey, who found the likelihood of the claimant’s return to suitable gainful employment is “very poor”.
The JCC rejected the testimony of vocational expert, Bill England, who testified that his company found approximately 55 jobs for which the claimant may have been qualified for over several months. The JCC found that Mr. England did not take into consideration the claimant’s difficulties in traveling while taking her medication or what the effects of her medication may have on her ability to perform sedentary work that may require concentration. The JCC accepted the testimony of the claimant that she contacted a number of these potential 55 jobs, and found there is no evidence to show she would have been qualified for any of the jobs identified by Mr. England.
The JCC found the claimant’s permanent work restrictions, coupled with the vocational evidence, established the claimant is unable to engage in even sedentary employment within a 50 mile radius of her home and that she has conducted an exhaustive good faith job search. The JCC noted the Employer/Carrier is entitled to an offset due to the claimant’s receipt of Social Security Disability.
Donald Jackson v. City of Pompano Beach/Corvel Corporation
JCC Hill; Gainesville District; Order Date: April 23, 2016
OJCC Case: 14-020882MRH; D/A: 8/7/2013
Claimant’s Counsel: Ricardo Morales
Employer/Carrier’s Counsel: Darrel King
Briefly: ONE-TIME CHANGE IN PHYSICIAN – JCC Hill granted the claimant’s request for authorization of Dr. Aparicio as his one-time change in physicians and rejected the Employer/Carrier’s position that the carrier timely responded by authorizing Dr. Simon within 5 days of the request, when seven days later, the Employer/Carrier indicated Dr. Simon was not authorized because he refused to treat the claimant and authorized Dr. Strain.
Summary: The JCC explained that although the Employer/Carrier initially responded within five days naming Dr. Simon as authorized, seven days later the Employer/Carrier indicated Dr. Simon was not authorized and named Dr. Strain as the physician actually authorized. The JCC rejected the Employer/Carrier’s argument that, because Dr. Simon refused to treat the claimant and the Employer/Carrier acted in good faith to select an alternative physician, the selection of Dr. Strain should be considered timely. The JCC found there was no record evidence to establish Dr. Simon refused to treat the claimant and found the statute contains no “good faith” exception to the five-day requirement.
The JCC cited the case of Germ v. St. Luke’s Hospital Association, 993 So. 2d 576 (Fla. 1st DCA 2008), for holding that if the plain language of the statute is clear and unambiguous, the Court should rely on the words used without resorting to rules of construction of speculating as to the legislature’s intent.
The JCC found that to allow Dr. Strain to serve as the one-time change would create an incentive for the Employer/Carrier to name any physician as being authorized without actually authorizing that physician, to give itself more time to select a different physician. That result would thwart the legislative intent that the Employer/Carrier authorized a physician within five calendar days of the claimant’s request.
Larry Carroll v. Florida Office Supply/Amerisure Insurance
JCC Sojourner; Lakeland District; Order Date: April 23, 2016
OJCC Case: 09-002073MES; D/A: 4/1/1989
Claimant’s Counsel: Joshua Nelson
Employer/Carrier’s Counsel: Donald Kaelber
Briefly: MEDICALLY NECESSARY TREATMENT – JCC Sojourner ordered the Employer/Carrier to authorize a physician to provide care and treatment to the claimant and noted that, since the claimant has moved from Clarksville, Tennessee, to Nashville, Tennessee, a distance of 93 miles, it is reasonable to provide treatment closer to the claimant’s home.
Summary: The JCC accepted the claimant’s testimony that his journey to the authorized treating physician’s office is time-consuming, about two hours each way if traffic is good. The claimant agreed he does not have restrictions on his ability to sit or drive.
The JCC found the claimant established good cause under F.S. §440.13(3) for a change in providers and noted that, while the claimant has a good relationship with his authorized treating physician, the doctor’s office is not within a reasonable distance of the claimant’s home. The JCC also found that the carrier’s offer of transportation does not lessen the travel time involved and that the claimant should not have to devote an entire day to obtaining medical care and treatment when medical care and treatment is available within a reasonable distance within the claimant’s residence.