FL Case Law Summaries – 5/11/16
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JCC ORDERS
Nancy J. Harris v. Hillsborough County School Board/Broadspire
JCC Massey; Tampa District; Order Date: May 5, 2016
OJCC Case: 14-026644MAN; D/A: 9/13/2013
Claimant’s Counsel: Dixie T. Brady
Employer/Carrier’s Counsel: Robert Byelick
Briefly: MAJOR CONTRIBUTING CAUSE; DIAGNOSTIC TEST OR EVALUATION – JCC Massey awarded authorization of an oncologist to evaluate claimant’s left hip/femur fracture based on medical evidence that the left femur fracture process may possibly be related to the compensable accident and that further evaluation by an appropriate specialist is necessary to determine whether there is a causal relationship or not.
Summary: The JCC noted that when the purpose of a diagnostic test or evaluation is to determine the cause of the claimant’s symptoms and which symptoms may be related to the compensable accident, the cost of the diagnostic test or evaluation is compensable, even if it is later determined that the condition is non-compensable, or that claimant suffers from both compensable and non-compensable conditions.
In the instant case, the Employer/Carrier’s IME physician, Dr. David Schulak, testified that, although he cannot relate the left femur fracture process to the compensable accident, further evaluation is needed by an appropriate specialist in order to determine whether there is a casual relationship between the fracture and the compensable injury. The JCC found the fact that Dr. Schulak “really doubts” the specialist will disagree with him is irrelevant. Dr. Schulak admitted this is not his area of expertise and that the condition, including whether it is causally related to the accident, warrants further evaluation by the specialist he recommended.
George L. McMillian v. Tex Edwards Company, Inc./The Gray Insurance Company
JCC Winn; Pensacola District; Order Date: May 6, 2016
OJCC Case: 14-002891NSW; D/A: 12/2/2013
Claimant’s Counsel: Thomas Condon
Employer/Carrier’s Counsel: Jonathan Minchin
Briefly: RE-AUTHORIZATION; STATUTE OF LIMITATIONS – Despite the hardware screwed into the claimant’s ankle during authorized surgery, JCC Winn dismissed the Petition for Benefits requesting re-authorization of a treating physician and found the Petition was filed beyond the statute of limitations, that the statute of limitations was not tolled, and that the claimant was properly advised in accordance with the statutory requirements.
Summary: The claimant contended that hardware screwed into his ankle during the authorized surgery which remains in place is a medically necessary device or apparatus, representing continuous remedial treatment tolling the statute of limitations pursuant to F.S. §440.19(2).
The JCC notes there is no dispute that the hardware installed during the surgery was “prescribed by an authorized doctor”, nor is there any dispute the Employer/Carrier was aware such hardware remains in place at present. However, the Employer/Carrier contends such hardware is no longer being used and in fact has not been used by claimant since at least June 30, 2014, when he attained maximum medical improvement with a 0% permanent impairment rating.
The JCC distinguished the hardware in this case, a T-plate, from knee prosthesis or a hearing aid or a back brace for continuing use. The JCC found that, once claimant’s fractured bones healed, the T-plate ceased to serve any purpose or function. Having no purpose or function by definition, the T-plate ceased to be “medically necessary” or an “apparatus” sufficient to toll the statute of limitations”.
Luis Barea v. Gunderlin LTD., Inc./Travelers Insurance
JCC Humphries; Jacksonville District; Order Date: May 6, 2016
OJCC Case: 14-011220RJH; D/A: 12/19/2013
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: Patricia Perez
Briefly: MEDICAL NECESSITY – JCC Humphries granted the claim for bloodwork and a follow-up appointment with Dr. Arthur Segall and found the claimant is entitled to continued bloodwork to monitor the claimant’s liver and kidney functions given his long-standing and continued use of anti-inflammatory medications as a result of a compensable right foot and ankle injury.
Summary: The claimant suffered a compensable right foot and ankle injury and treated with Dr. Segall who ordered bloodwork and continued to prescribe medications as well as prescription compression stockings. Dr. Segall recommended bloodwork because the claimant continues to take anti-inflammatory medications and bloodwork was necessary to “monitor liver and kidney functions to make sure the medications aren’t causing any problems.”
In regard to the Employer/Carrier’s argument that there are no objective relevant medical findings to support an injury, the JCC found this issue was waived by the Employer/Carrier initially accepting the compensability of the injury and providing authorized care and treatment. The JCC noted that, although objective findings are necessary to establish the initial existence of the compensable injury, it is not statutorily required for establishing continuing treatment.
Based upon the opinions of three physicians who testified in the case, the JCC found the bloodwork prescribed by Dr. Segall to be medically reasonable and necessary. Additionally, the JCC found it was obvious that a return to Dr. Segall for the purpose of having blood work and interpreting the results is also medically necessary and reasonable.
Bernard Bailey v. Trench Shoring Systems, Inc./Travelers Insurance
JCC Pitts; District; Order Date: May 6, 2016
OJCC Case: 12-027358NPP; D/A: 8/30/2012
Claimant’s Counsel: Sandra L. McAuley
Employer/Carrier’s Counsel: Eric R. Eide
Briefly: MAJOR CONTRIBUTING CAUSE; MEDICAL NECESSITY – JCC Pitts granted the claim for authorization of fingernail laser treatment for the claimant’s right foot, but denied authorization of a four-wheel, heavy-duty scooter that would adequately support the claimant’s body structure, physical limitations, and weight of 220 pounds with a hydraulically-controlled lift.
Summary: The claimant was involved in an industrial accident in 2012 resulting in crush injuries to both of his legs below the knees as well as an injury to his low back when a 10,000 pound piece of equipment fell on him. The claimant received compensable medical care including a below-the-knee amputation of the left leg and multiple surgeries to his right leg.
The JCC accepted the testimony of the claimant and his wife that prior to the industrial accident, the claimant did not have symptoms associated with foot fungus and had not been diagnosed with or treated for foot fungus. The JCC accepted the claimant’s testimony that the symptoms associated with the foot fungus infection began in the fall of 2013 after the claimant began using the prescribed compression stockings.
The JCC found that while the claimant has the initial burden of proving entitlement to workers’ compensation benefits, once the claimant has established compensability of the injury, the Employer/Carrier cannot challenge the causal relationship between the work accident and the injury – only the casual relationship between the injury and the requested benefits. The burden of proof regarding causal connection is on the Employer/Carrier to demonstrate the break in the causal connection chain and, in the absence of a challenge to the causal chain, the claimant is deemed to meet his burden to prove the causal relationship between the compensable injury and the requested benefits. In this case, the Employer/Carrier challenged the causal relationship between the injury and the foot fungus. The JCC concluded the cause of the fungus is unknown, therefore, the Employer/Carrier has not met its burden of proof to establish that the requested treatment was due to a condition unrelated to the injury which the Employer/Carrier has accepted as compensable.
Regarding the claim for the scooter, the JCC noted it is undisputed that the claimant’s physician, Dr. Langford, prescribed a scooter as being medically necessary. However, the doctor’s prescription did not delineate whether this required a three-wheel or four-wheel scooter as requested by the claimant, and did not specify any parameters such as safety features, a swivel seat, or customized seats for use by an amputee. The JCC accepted the Employer/Carrier’s expert testimony that the scooter which the Employer/Carrier provided to the claimant was strong enough to fit the claimant’s weight and was reasonably safe for him to use.
Darrett Hughes v. Southeast Personnel Leasing/Packard Claims Administration
JCC Lazzara; Tallahassee District; Order Date: May 6, 2016
OJCC Case: 15-021546JJL; D/A: 4/18/2015
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Vanessa J. Johnson
Briefly: CAUSAL CONNECTION; MISREPRESENTATION DEFENSE – JCC Lazzara denied the Petition for Benefits and found the claimant failed to introduce competent, credible evidence to support his claims and that the claimant violated F.S. §440.105, thereby forfeiting eligibility and entitlement to further workers’ compensation benefits.
Summary: The JCC found there is no medical evidence to support the claimant’s entitlement to benefits as the claimant failed to introduce any admissible evidence that would support an award of indemnity.
Additionally, the JCC found there was sufficient and credible evidence that the claimant intentionally misrepresented his past medical history and conditions. The JCC found the claimant denied being treated by a medical provider for back symptoms prior to April, 2015, and noted the claimant’s sworn testimony in deposition wherein he said “I’ve never had problems with my back”. The JCC also noted the medical records from a chiropractor admitted into evidence clearly reflect the claimant complained of an injury to his low back resulting from a motor vehicle accident occurring in 2004. Likewise, the claimant denied ever injuring his left shoulder prior to date of accident, however, the chiropractic records reflect he treated for a left shoulder injury in the past.