FL Case Law Summaries – 5/24/16
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JCC ORDERS
Patria Owens v. Harvest/Holiday Retirement – Spring Oaks/Liberty Mutual Insurance
JCC Lorenzen; Tampa District; Order Date: May 23, 2016
OJCC Case: 15-001064EHL; D/A: 9/18/2014
Claimant’s Counsel: Joshua Nelson
Employer/Carrier’s Counsel: Frank DeCiutiis
Briefly: COMPENSABILITY OF GALL BLADDER SURGERY – The industrial accident occurred when the claimant was kicked in the stomach and suffered a contusion. JCC Lorenzen denied compensability of gall bladder surgery and agreed with the Employer/Carrier that the gall bladder disease was unrelated to the industrial accident.
Summary: The JCC accepted the opinion of the Expert Medical Advisor, Dr. Chisholm, that the claimant’s need for gall bladder surgery was not related to the compensable injury. The Expert Medical Advisor stated he was unaware of any medical literature that would connect claimant’s condition to trauma. The JCC found there was no clear and convincing evidence to reject Dr. Chisholm’s opinion regarding causation.
Additionally, the JCC found the fact the claimant’s pain became worse after eating to be more consistent with gall bladder disease than trauma.
The JCC disagreed with claimant’s argument that the Employer/Carrier was required to prove the chain of causation had been disrupted.
Kaylee Hampson v. MDT Personnel, LLC/Guarantee Insurance Company
JCC Hill; Gainesville District; Order Date: May 23, 2016
OJCC Case: 12-011029MRH; D/A: 9/22/2011
Claimant’s Counsel: Christopher Costello
Employer/Carrier’s Counsel: Christopher Tice
Briefly: MISREPRESENTATION DEFENSE – JCC Hill denied the Employer/Carrier’s misrepresentation defense and found the claimant did not misrepresent her subsequent earnings on the DWC-19 forms.
Summary: The Employer/Carrier asserted the claimant intentionally misrepresented her earnings from subsequent employment on the DWC-19 forms.
The JCC rejected the Employer/Carrier’s position and found the claimant was credible in her testimony. The JCC found that any errors in completing the DWC-19 forms were not intentional or for the purposes of obtaining workers’ compensation benefits.
The JCC accepted the claimant’s explanation that she failed to include various earnings on the DWC forms because she either did not have earnings or she did not believe her unreported earnings could be used to reduce benefits. The JCC found the claimant was unable to provide a fully accurate accounting because her paperwork was in a storage facility and difficult to access. Further, the JCC accepted the claimant’s testimony that she did not intentionally misrepresent her earnings, but that her problem was caused by poor record keeping.
Mary Hektner v. School Board of Brevard County/Sedgwick CMS
JCC Dietz; Sebastian-Melbourne District; Order Date: May 23, 2016
OJCC Case: 13-014654RLD; D/A: 4/20/1995
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: William H. Rogner
Briefly: APPELLATE ATTORNEY’S FEE – JCC Dietz awarded claimant’s counsel an appellate attorney’s fee in the amount of $7,500, representing 30 hours at $250 per hour.
Summary: Claimant’s counsel asserted that the appropriate hourly rate for attorneys in the JCC’s district is $350-$500 and requested a $375 per hour rate. Claimant’s counsel asserted this range is based on the Miami district and the “locality” should be defined as statewide for appellate attorney’s fees based on the location of the claimant’s attorney, and not the locality of the case.
The JCC rejected this argument and accepted the Employer/Carrier’s assertion that the appropriate range for appellate fees is $200-$375 in the Sebastian District and that based upon claimant’s attorney’s experience and qualifications, the range would be $225-$275 per hour. The JCC noted that claimant’s counsel is not board-certified and awarded an hourly rate of $250.