FL Case Law Summaries – 5/23/16
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1ST DCA ORDERS
John O’Connor v. Indian River County Fire Rescue/Johns Eastern Company, Inc.
Appeal of the Order from JCC Robert L. Dietz
DCA Order Date: May 20, 2016
Case: 1D15-4986; D/A: 1/10/2015
Appellant’s Counsel: Michael J. Winer & Geoffrey Bichler
Appellee’s Counsel: William H. Rogner
Briefly: SANCTIONS; APPELLATE ATTORNEY’S FEES – The 1st DCA affirmed the JCC’s Order regarding costs but awarded appellate attorney’s fees paid by Appellant/Claimant’s counsel to the Appellee/Employer/Carrier and held that claimant’s counsel, although not deliberately trying to mislead the Court, pursued two separate proceedings arguing the same exact issue but under the guise of appealing a separate issue, demonstrating a lack of candor required by the Court.
Summary: The First DCA found the sole purpose of this appeal was not to challenge the ancillary cost order identified in the Notice of Appeal, but to use the appeal as a pretext for making constitutional arguments about the fee statute, despite the fact that counsel knew or should have known that the retainer and fee order was not reviewable in an appeal of an order arising out of an ancillary proceeding.
The 1st DCA held that at every opportunity appellant’s counsel had prior to filing the Initial Brief, counsel failed to make it clear to the Court that the appeal solely involved the retainer and fee order. The DCA noted the appellant filed three versions of the Notice of Appeal and in each version the appellant expressly indicated that the nature of the order on appeal involved a cost order.
The 1st DCA held that counsel’s lack of candor required the Court and the appellees to expend unnecessary time and effort on this appeal.
JCC ORDERS
Lisa Leighton v. School Board of Broward County/Comp Options/AmTrust North America
JCC Lewis; Ft. Lauderdale District; Order Date: May 17, 2016
OJCC Case: 14-028359DAL; D/A: 8/26/2014
Claimant’s Counsel: Richard Berman
Employer/Carrier’s Counsel: Michael Fichtel
Briefly: RELEASE TO OBTAIN MEDICAL RECORDS; HIPAA– JCC Lewis denied the Employer/Carrier’s Motion to Compel the claimant to execute a HIPAA release and found the JCC has no authority to order the claimant to sign a release for the obtention of medical records from a local, in-state medical provider.
Summary: The Employer/Carrier sought to have the claimant execute a release for the obtention of medical records from a non-party clinic situated in the jurisdiction of the JCC. In response, the claimant asserted the JCC had no authority to compel the claimant to execute a medical release for a local, in-state hospital.
The JCC reviewed F.S. §440.13(4)(c) stating that if the medical records sought are from healthcare providers not subject to the jurisdiction of the state, then the claimant shall sign an authorization allowing the Employer/Carrier to obtain such records. The JCC accepted the claimant’s position and noted that, in this case, the subject medical provider was within the jurisdiction of the JCC.
The JCC noted the Employer/Carrier may apply for an order compelling the production of medical records directly from a local, in-state medical provider pursuant to F.S. §440.33(1) which provides that whenever a law requires an order of a court of competent jurisdiction for the obtention of medical or hospital records, an order of the Judge of Compensation Claims entered for such purposes shall be deemed to be an order of a court of competent jurisdiction.
Additionally, the JCC noted the Employer/Carrier may schedule the deposition of a local, in-state medical custodian so that the claimant can attend the deposition, review the records before they are produced to the Employer/Carrier, and raise objections if the claimant believes the records contain information that is protected or not within the scope of permissible discovery. Any records to which an objection is interposed can be sealed by a court reporter and submitted to the JCC for in-camera inspection or review.
Yva Louis v. Mystic Dunes Resort & Golf Club/Liberty Insurance Corporation
JCC Sculco; Orlando District; Order Date: May 17, 2016
OJCC Case: 15-010394TWS; D/A: 1/23/2014
Claimant’s Counsel: David E. Mallen
Employer/Carrier’s Counsel: J. Christopher Norris
Briefly: ONE-TIME CHANGE IN PHYSICIAN – JCC Sculco found F.S. §440.13(2)(f) requires an Employer/Carrier to authorize an alternate physician in the same medical specialty as the physician from whom the change is being requested.
Summary: The JCC cited F.S. §440.13(2)(f), regarding a one-time change in physician and noted the statute gives the claimant the right of selecting of an alternate physician when the carrier fails to timely respond to the requested change, within five calendar days. Further, the JCC found the statute requires an Employer/Carrier to authorize an alternate physician in the same medical specialty as the initial authorized physician.
In this case, it was undisputed that the alternate physician offered by the Employer/Carrier was in a different medical specialty than the initial authorized physician. The JCC found the Employer/Carrier’s offer of a new physician did not satisfy its obligations under the statute and the claimant is entitled to select the physician.
The JCC stated he could not imagine that the Legislature intended a claimant’s exercise of a statutory right to change of physicians to be a tool that an Employer/Carrier could use to reduce costs by eliminating care in expensive specialties. The JCC noted that, while there was no evidence of improper motive in this case, the Employer/Carrier’s construction of the statute was an invitation to gamesmanship by carriers in the handling of the medical care for injured workers, and could conceivably be used to discourage their right to change physicians under the statute.
John Gonell v. City of Hialeah/Sedgwick CMS
JCC Almeyda; Miami District; Order Date: May 18, 2016
OJCC Case: 14-018817ERA; D/A: 11/30/2010
Claimant’s Counsel: Mark Touby
Employer/Carrier’s Counsel: Eduardo Neret
Briefly: RETIREMENT; VOLUNTARY LIMITATION OF INCOME – JCC Almeyda ordered the Employer/Carrier to pay temporary total disability benefits and denied the defense that the claimant is barred from receiving temporary partial disability benefits because he retired.
Summary: The claimant worked at the City of Hialeah Fire Department and applied for the DROP program wherein his retirement date was mandatory to occur three years from enrollment in the program. The JCC noted the claimant’s decision to retire was made before the compensable accident.
In defense of the claim for disability benefits, the Employer/Carrier asserted the claimant voluntarily limited his income and that the claimant’s disability was not the result of the industrial injury, but the result of his mandatory retirement applied for prior to the industrial accident.
The JCC denied this defense and noted that following the industrial accident, the claimant continued to work until the DROP program forced him to retire. The JCC found the claimant’s condition did not remain static over time and, instead, worsened during the period of post-retirement to the degree his authorized physicians suggested a total knee replacement surgery.
Additionally, the JCC found retirement itself is not a bar to compensation under the case of Southern Telephone and Telegraph v. Seneca, 512 So. 2d 1005 (Fla. 1st DCA 1987), wherein the court stated “Claimant’s voluntary retirement cannot be considered a voluntary limitation of his income in perpetuity…”
When awarding TTD, the JCC accepted the opinion of the authorized treating physician that the claimant’s restrictions were so severe during the claimed period that he would have been on a “no work” status.
Patsey White v. Dade County School Board/Gallagher Bassett Services, Inc.
JCC Kerr; Miami District; Order Date: May 18, 2016
OJCC Case: 02-010865MGK; D/A: 7/23/2001
Claimant’s Counsel: Richard Chait
Employer/Carrier’s Counsel: David Goehl
Briefly: ATTORNEY’S FEE AMOUNT – JCC Kerr awarded an attorney’s fee based upon an hourly rate of $350 per hour and found this rate is reasonable for such efforts even “given the lack of complexity of the issues involved.”
Summary: Judge Kerr awarded $350 per hour to claimant’s counsel and found that claimant’s counsel had to overcome a continued defense of his claims by the Employer/Carrier and ultimately obtain benefits which were previously denied.
However, the JCC found the issues were not complex or unique, and the fact that counsel is a highly skilled professional practitioner with decades of experience and an excellent reputation within the Bar did not have a significant impact on the litigation of this specific case.
The JCC found claimant’s counsel spent a total of 20.2 hours of attorney time securing benefits at issue.
Aurelio Lawrence v. American Airlines/Sedgwick CMS
JCC Massey; Tampa District; Order Date: May 19, 2016
OJCC Case: 13-016086MAM; D/A: 12/28/2012
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Michael Hernandez
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS – JCC Massey awarded temporary partial disability benefits and found there was insufficient evidence of medical non-compliance on the part of the claimant and that the suspension of benefits was unfounded.
Summary: The JCC found that the claimant has physical restrictions which prevent him from performing his pre-injury work duties and had not yet reached MMI. As such, the JCC found the claimant carried his burden of proof for a prima facie case for TPD benefits, thereby shifting the burden to the Employer/Carrier to prove one or more affirmative defenses.
The Employer/Carrier’s primary argument against TPD was medical non-compliance. The Employer/Carrier argued the claimant failed or refused to cooperate with the FCE and purposely made every effort to avoid the FCE even though it remains authorized. Further, the Employer/Carrier argued that, if the claimant had cooperated with the FCE he most likely would have been placed at MMI.
The JCC found the fact the FCE has not yet taken place was not the fault of the claimant, and was not due to claimant’s actions or inactions. The JCC found that on the occasions where the FCE was scheduled and did not take place, the reason was due to lack of required clearance from the physician treating the claimant’s health condition related to a separate claim. The JCC noted there was also a variety of other missteps and miscommunications which did not appear to be intentional on anyone’s part, but which ultimately resulted in the FCE not being completed despite the passage of several months’.
The JCC also found there was insufficient evidence to support the Employer/Carrier’s contention that claimant’s failure to sign any required “release” rose to the level of non-compliance which would justify the suspension of benefits.
Manuel Moscoso v. City of Tampa Fire Rescue/Commercial Risk Management
JCC Massey; Tampa District; Order Date: May 19, 2016
OJCC Case: 12-005667MAM; D/A: 10/2/2011
Claimant’s Counsel: Tonya Anne Oliver
Employer/Carrier’s Counsel: L. Gray Sanders
Briefly: ATTORNEY’S FEES – JCC Massey denied without prejudice the claimant’s Verified Motion for Attorney’s Fee due to lack of evidence proving the amount of benefits obtained.
Summary: Claimant’s counsel filed a Verified Motion for Attorney’s Fees following the Employer/Carrier’s acceptance of the alleged hypertension and/or heart disease conditions as compensable, authorization of medical treatment, and stipulation to entitlement of an Employer/Carrier-paid attorney’s fee.
In the Verified Motion, claimant’s counsel asserted that a statutory guideline fee would be inadequate to compensate her and, therefore, she should be awarded an hourly fee. However, claimant’s counsel presented no evidence or testimony as to the amount of benefits obtained.
The JCC found it was not possible for him to make the required initial finding of the amount of benefits secured and resulting guideline fee amount. Without such a finding, the JCC stated it would be erroneous to simply jump straight into an hourly fee or consider any of the other Lee Engineering factors.
The JCC noted the Employer/Carrier attempted to place the payout ledger into evidence, but that claimant’s counsel rejected it on the grounds it was hearsay and incomplete. The JCC found there was no evidence or testimony provided as to an actual figure for the amount of benefits secured, making it impossible to determine the “starting point” guideline fee. The JCC emphasized the fee schedule remains the starting point pursuant to the DCA opinion of Murray v. Mariner Healthcare, 994 So. 2d 1051 (Fla. 1st DCA 2008) and the recent case of Castellanos v. Next Door Company (Fla. 2016).
Gary Thomas Munsell v. Golden State Food Corps./Travelers Insurance
JCC Hill; Gainesville District; Order Date: May 20, 2016
OJCC Case: 16-001603MRH; D/A: 6/28/2015
Claimant’s Counsel: Douglas Bond
Employer/Carrier’s Counsel: Joshua Day
Briefly: PHYSICAL THERAPY – JCC Hill granted the claim for authorization of physical therapy and noted the only dispute between the medical opinions in evidence was the duration of physical therapy as both physicians opined physical therapy is medically necessary.
Summary: The Employer/Carrier’s IME, Dr. Friedman, opined physical therapy was medically necessary three times per week, for four weeks. The authorized physician, Dr. Vlasak, change his opinion, but eventually recommended physical therapy following the surgery he performed for three times a week for seven weeks. Dr. Vlasak testified he changed his recommendation in hopes the Employer/Carrier would authorize a reduced amount of physical therapy, since they would not authorize the amount he initially recommended.
The JCC accepted Dr. Vlasak’s current opinion over Dr. Friedman’s and found Dr. Vlasak performed claimant’s surgery, was very familiar with claimant’s case, and is more experienced in the relevant field. The JCC noted that Dr. Friedman saw the claimant once, relied on summaries of diagnostic tests to reach his opinion, and did not perform a surgery on the claimant.
Guillermo Solis, Jr., deceased v. Lane Construction/Liberty Insurance Corporation
JCC Pitts; Orlando District; Order Date: May 20, 2016
OJCC Case: 15-027844NPP; D/A: 10/16/2015
Claimant’s Counsel: Basil Valdivia
Employer/Carrier’s Counsel: Ya’Sheaka Campbell Williams
Briefly: ATTORNEY’S FEE AMOUNT – JCC Pitts ordered a statutory attorney’s fee of $15,750, resulting in an effective hourly rate of $420 and rejected the Employer/Carrier’s position that a statutory fee is unconscionable in light of the benefits obtained and the time spent securing them.
Summary: The claimant’s attorney contended he is entitled to a guideline attorney’s fee based upon death benefits secured in the amount of $150,000, resulting in an attorney’s fee of $15,750.
The Employer/Carrier contended that a reasonable attorney’s fee would be $7,500, based upon 37.5 hours of attorney time at an hourly rate of $200.
In making his findings, the JCC noted that a reasonable hourly rate to be awarded to claimant’s counsel for handling this particular claim would be $250. Nevertheless, based upon the Lee Engineering analysis, the JCC found that the statutory fee of $15,750 resulted in an effective hourly rate of $420 but does not result in a windfall or in an hourly rate so high as to be considered unreasonable. The JCC stated that “although this fee is high, I find it is not so high that it is unreasonable or excessive.”