FL Case Law Summaries – 4/27/16
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JCC ORDERS
Brian Gonzalez v. St. Lucie County Fire District/Florida Municipal Insurance Trust
JCC McAliley; Port St. Lucie District; Order Date: April 25, 2016
OJCC Case: 14-026367RDM; D/A: 9/4/2013
Claimant’s Counsel: Tonya A. Oliver
Employer/Carrier’s Counsel: Alan D. Kalinoski & Lamar D. Oxford
Briefly: PRESUMPTION UNDER F.S. §112.18 – On remand, JCC McAliley determined there was no competent, substantial evidence to prove causation of any abnormality to the heart, or to prove whether claimant’s job duties were a triggering event of the atrioventricular nodal reentry tachycardia (AVNRT). Therefore, the statutory presumption controls and the claimant’s AVNRT was determined compensable.
Summary: The DCA reversed the JCC’s initial finding that a statutory presumption was inapplicable and that the claimant could not otherwise establish compensability of his claim. The First DCA held it was necessary for the JCC to make an evidentiary determination not only as to the cause of any abnormality to the heart, but also whether claimant’s job duties, either by medical evidence or operation of statutory presumption, was a triggering event of the AVNRT. Gonzalez v. St. Lucie County Fire District, 41 Fla. Law Weekly D589 (Fla. 1st DCA 2016). The First DCA pointed out that its recent opinion in Mitchell v. Miami Dade County, 186 So. 3d 65 (Fla. 1st DCA 2016) should serve as a guide.
On remand, the JCC rejected the medical evidence relied upon by the claimant, including the opinion of Dr. Borzak that the claimant’s job duties acted as a triggering event for the development of AVNRT. Therefore, the JCC found the Employer/Carrier may rebut the presumption with the presentation of competent, substantial evidence. However, the JCC found the medical evidence relied upon by the Employer/Carrier, including the opinion of Dr. Perloff, was not sufficient to rebut the presumption. The JCC found that Dr. Perloff did not have an opinion based on reasonable medical certainty as to the triggering event for the AVNRT. In as much as the JCC determined there was no competent, substantial evidence as to the cause of the claimant’s episode of AVNRT, the statutory presumption controls.
Matty DeLeon v. Macy’s Florida Stores, LLC/Macy’s Claims Services
JCC Medina-Shore; Miami District; Order Date: April 26, 2016
OJCC Case: 15-012004SMS; D/A: 11/13/2014
Claimant’s Counsel: Alejandro Zaldivar
Employer/Carrier’s Counsel: David Goehl
Briefly: SELF-HELP UNDER F.S. §440.13(2)(c); ONE-TIME CHANGE; MAJOR CONTRIBUTING CAUSE – Although JCC Medina-Shore found the claimant did not satisfy the burden of proof necessary to obtain reimbursement and authorization of medical treatment under the self-help provisions of F.S. §440.13(2)(c), the JCC ordered the Employer/Carrier to authorize Dr. Edward Lazzarin as a one-time change of physicians.
Summary: The claimant sought payment of Dr. Lazzarin’s past bill for services and claimed entitlement under the self-help provision of F.S. §440.13(2)(c) and Parodi v. Florida Contracting Company, Inc., 16 So. 3d 958 (Fla. 1st DCA 2009). The JCC explained the employee retains the burden to establish that he/she made a specific request for care allowing the Employer/Carrier reasonable time to respond and obtain care that was compensable, reasonable, and medically necessary. Here, the JCC found the claimant did not provide the Employer/Carrier a reasonable opportunity to provide medical care prior to seeking care with Dr. Lazzarin and therefore the Employer/Carrier is not responsible for payment of Dr. Lazzarin’s past medical bills.
However, the JCC found the Employer/Carrier failed to authorize a one-time change in physician upon claimant’s written request and, therefore, the claimant had the right to select a one-time change in physician and chose Dr. Lazzarin for future medical treatment.
Dr. Tejeiro, the claimant’s IME physician, recommended the claimant undergo an arthroscopy of the meniscal tear to prevent further degeneration of the knee joint. The JCC accepted the opinion of Dr. Tejeiro over that of Dr. Ramirez, the authorized physician, on the grounds that Dr. Tejeiro explained the bone marrow edema shown on the MRI scan is consistent with an acute injury, not degenerative changes. The JCC ordered that the Employer/Carrier shall authorize Dr. Lazzarin to perform the arthroscopic surgery.
Michele Falco v. American Airlines/Sedgwick CMS
JCC Hill; Miami District; Order Date: April 26, 2016
OJCC Case: 03-046381CMH; D/A: 6/15/2002
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Michael A. Hernandez
Briefly: AUTHORIZATION FOR NEUROLOGICAL EVALUATION – Pursuant to the un-contradicted recommendations of Dr. Rosa Turner, the authorized treating psychiatrist, JCC Hill ordered the Employer/Carrier to authorize a neurological evaluation with Dr. Guillermo Martinez, the authorized neurologist who has not seen the claimant in several years.
Summary: The JCC found there is no dispute that Dr. Martinez has been the claimant’s authorized treating neurologist in this case. The JCC found a satisfactory physician-patient relationship has been established by the claimant with Dr. Martinez and further found that the mere passage of time has not been shown to interrupt that relationship. The JCC found the Employer/Carrier did not demonstrate a valid reason to sever the patient-physician relationship with Dr. Martinez and therefore Dr. Martinez is authorized to perform the neurological evaluation as recommended by Dr. Rosa Turner, the claimant’s authorized treating psychiatrist.
The JCC explained that Dr. Turner, who provided the only expert medical testimony in the case, became alarmed that the claimant was deteriorating and recommended a full neurological workup to be performed by the patient’s workers’ compensation neurologist. The JCC accepted Dr. Turner’s unrebutted expert medical testimony on this issue.