FL Case Law Summaries – 5/20/16
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JCC ORDERS
Jennifer Sanders v. JML Support Services/AmTrust North America of Florida
JCC Winn; Pensacola District; Order Date: May 12, 2016
OJCC Case: 15-024305NSW; D/A: 5/21/2015
Claimant’s Counsel: Thomas Ueberschaer
Employer/Carrier’s Counsel: Manuel Alvarez
Briefly: MISREPRESENTATION – JCC Winn denied the misrepresentation defense and found the claimant did not misrepresent facts regarding a prior neck injury for the purposes of securing workers’ compensation benefits.
Summary: The JCC found there is no dispute the claimant did, in fact, injure her neck in 2002. However, the JCC also found that, when the claimant denied the existence of her prior neck injury in deposition, she did not believe she misrepresented the facts or hid the truth from anyone. The JCC noted the claimant has consistently, for over 12-13 years, denied a neck injury no matter what health provider she was seeing and no matter the reason for such visit. The JCC found the claimant has always disclosed injuring her low back and always denied injuring her neck. On these grounds, the JCC found the claimant’s continuing denial following the date of accident was not made for the purpose of securing workers’ compensation benefits.
Severin Hegel v. Target/Sedgwick CMS
JCC Rosen; St. Petersburg District; Order Date: May 13, 2016
OJCC Case: 11-009856SLR; D/A: 8/18/2010, 1/14/2012, 11/7/2007
Claimant’s Counsel: Joseph M. Rooth
Employer/Carrier’s Counsel: Sean Crosby
Briefly: HEATED POOL THERAPY – JCC Rosen awarded the claimant six months of heated pool therapy after the conclusion of ketamine infusion therapy under the care of Dr. Kirkpatrick, the authorized treating physician.
Summary: The claimant has advanced reflex sympathetic dystrophy related to his industrial accident. An Expert Medical Advisor was previously appointed, but was not asked specific questions regarding the length of time heated pool therapy is necessary following ketamine infusion therapy. Therefore, the JCC accepted the opinion of the authorized treating physician, Dr. Kirkpatrick, that a period of up to six months of heated pool therapy three times a week after completion of the ketamine infusion therapy is medically necessary and reasonable.
James McCalister v. American Health Associates/Guarantee Insurance Company
JCC Beck; Sarasota District; Order Date: May 13, 2016
OJCC Case: 15-020400DBB; D/A: 6/25/2015
Claimant’s Counsel: Brian O. Sutter
Employer/Carrier’s Counsel: Rene Lopez
Briefly: TRAVELING EMPLOYEE; GOING AND COMING RULE – JCC Beck determined the claimant’s motor vehicle accident is compensable and that the claimant, as a courier, was a traveling employee under F.S. §440.092(4) and, as such, an employee whose work takes him away from the employer’s premises is within the course and scope of employment at all times during the trip, even when the employee begins travel home, except for any “distinct departure for a non-essential personal errand.”
Summary: The claimant was in a coma for months after the accident and does not recall the date of injury. The JCC accepted the claimant’s assertion that on the day of accident he was either on the Employer’s business or a long lunch after dropping off specimens at the Pinellas Park Lab.
The Employer/Carrier argued the claimant should have been off the clock for two hours after his last delivery of specimens to the Pinellas Park Lab because he had no further duties and was allowed two hours to travel home. The claimant contended this arrangement was never made known to him, and that his understanding of the employment agreement was that he was paid portal-to-portal for both his mileage and his time, with the exception of his lunch hour and any personal errands run on the way.
The JCC found the claimant received reimbursement for his travel expenses for the entire distance from his home to the Pinellas Park Lab and back. The JCC also found that the claimant, in order to comply with the Employer’s needs, regularly encountered the hazards of a 2-3 hour drive on an interstate highway. The JCC cited the case of McCormick v. State of Florida – Auditor General, 772 So. 2d 612 (Fla. 1st DCA 2000) and found the traveling employee statute should not be construed to allow the going and coming rule exception that would abrogate workers’ compensation coverage in every case once the employee begins travel home, no matter how long or hazardous the route and no matter whether the employee has been compensated for travel.
Thomas Eckert v. Pinellas County Sheriff’s Office/Pinellas County Risk Management
JCC Rosen; St. Petersburg District; Order Date: May 16, 2016
OJCC Case: 15-026162SLR; D/A: 5/18/2010
Claimant’s Counsel: Tonya A. Oliver
Employer/Carrier’s Counsel: Nancy S. Meyer
Briefly: IMPAIRMENT BENEFITS; F.S. §440.15(3)( c) – JCC Rosen denied the claim for payment of impairment benefits at the rate of 75% of the TTD benefit amount and found a combination of the claimant’s earned wages supplemented by his earned accumulated time made the claimant’s total earnings during the period of time in question equal to or greater than his compensation rate on the date his impairment benefits became due.
Summary: F.S. §440.15(3)(c) states: “…Impairment income benefits are paid bi-weekly at the rate of 75% of the employee’s average weekly temporary total disability benefit not to exceed the maximum weekly benefit under F.S. §440.12; provided, however, that such benefits shall be reduced by 50% for each week in which the employee has earned income equal to or in excess of the employee’s average weekly wage…”
Here, the Employer/Carrier contended that although the claimant missed some time from work during the period of time in question, the claimant replaced those lost wages with accumulated sick, funeral, and vacation time in each of those weeks. Therefore, the Employer/Carrier contended the claimant earned at least his average weekly wage, if not more, because of his cumulative alternate time.
The claimant argued that only actual earnings should be used in determining whether he is entitled to 75% or 50% of his TTD benefit amount.
The JCC noted that nowhere in Chapter 440 is the term “earned income” defined and also noted that the Employer/Carrier provided a definition of “earned income” from 26 U.S.C.A. Sec. 32 (c)(2)(A), which includes wages, salaries, tips and other employee compensation if such amounts are includable in gross income.
The JCC found that a combination of the claimant’s earned wages, supplemented by his accumulated time, made the claimant’s total earnings during the time in question to be equal to or greater than his compensation rate and therefore accepted the Employer/Carrier’s position.
Steve Geiskopf v. State of Florida Department of Corrections/Division of Risk Management
JCC Rosen; St. Petersburg District; Order Date: May 16, 2016
OJCC Case: 06-015889SLR; D/A: 5/1/2006
Claimant’s Counsel: Sandra L. McAuley
Employer/Carrier’s Counsel: Leticia G. Coleman
Briefly: OFFSETS TO PTD – JCC Rosen denied an increase in the payment of permanent total disability benefits and found the claimant failed to present any evidence to show different amounts that should have been paid to the claimant after reductions for offsets of Social Security and in-line-of-duty pension benefits.
Summary: The JCC rejected the claimant’s argument that amounts deducted from the claimant’s checks for interim attorney’s fees should be deducted from the gross payment to the claimant before offsets and deductions are taken. The JCC found no support for this premise in the case law.
Additionally, the JCC rejected the claimant’s argument that the Employer/Carrier failed to “perfect” its offsets because the claimant testified he did not receive any of the DWC-4 filings showing the change of permanent total disability benefits for offsets and supplemental benefits. At the final hearing, the Employer/Carrier produced these DWC-4 forms and each form shows they were sent to the claimant at either his address in Florida or to his address in Wisconsin, and that most of the forms were sent to claimant’s counsel. The JCC noted the claimant is unable to provide case or statutory law or administrative rule that requires the Employer/Carrier to ascertain the claimant did, in fact, receive the DWC–4 change forms.
The JCC found he had no reason to reject the records supplied by the workers’ compensation insurance adjuster on behalf of the Employer/Carrier. No evidence was presented by the claimant to show different amounts that should have been paid to the claimant after deductions and offsets were taken, including Social Security Disability and in-line-of-duty offsets.