FL Case Law Summaries – 5/27/16
BY:
To receive daily e-mails with case law summaries, e-mail: Esantos@eraclides.com
1ST DCA ORDERS
Cory Fairbanks Mazda/PMA Insurance Group v. Connie Minor
Appeal of the Order from JCC Sculco
DCA Order Date: May 25, 2016
Case: 1D15-1600; D/A: 7/15/2013
Appellant’s Counsel: Kimberly J. Fernandes
Appellee’s Counsel: Charles H. Leo & Richard W. Ervin, III
Briefly: MISCONDUCT DEFENSE UNDER F.S. §440.15(4)(e) – The 1st DCA affirmed JCC Sculco’s rejection of the Employer/Carrier’s misconduct defense under F.S. §440.15(4)(e) and held that the claimant’s statements to her attorneys did not constitute misconduct because there is no evidence the claimant intended, or reasonably expected, that the Employer would learn of her statements.
Summary: The Employer/Carrier appealed the order of JCC Sculco denying the misrepresentation defense. The 1st DCA wrote an affirming order to discuss the meaning of “misconduct” under F.S. §440.02(18), particularly when an employee expresses anger about a co-employee’s actions.
In this case, during a hearing on a discovery matter, claimant’s counsel announced the claimant was “getting increasingly angry and hostile and showing symptoms of psychiatric stress.” He suggested that an emergency psychiatric hearing was necessary because something bad might happen. Claimant’s counsel stated the claimant had “discussed homicide and suicide, but not to the level where it’s Baker Actable.” That evening, the Employer terminated claimant’s employment based on claimant’s counsel’s representations. Witnesses for the Employer later testified they had no knowledge of any actual threats made by the claimant, but considered her thoughts enough of a threat to jeopardize the safety of other employees.
Relative to the unresolved disability claim, claimant’s counsel objected, based on attorney-client privilege, to questions posed to the claimant during a merits hearing concerning conversations with her attorney. The JCC allowed a proffer of claimant’s testimony that she told her attorney she would like to punch the co-worker but she had no idea what triggered her attorney’s belief that she had homicidal ideations. The Employer/Carrier alleged misconduct as premised solely on the attorney’s statement that the claimant shared she had suicidal and homicidal thoughts arising from her injuries. Based on the evidence presented, the JCC found the claimant’s statements to her attorney did not constitute “misconduct” as defined by the statute as there was no evidence claimant intended or reasonably expected the Employer would learn of her statements. The DCA held that competent, substantial evidence supports the JCC’s findings of no misconduct.
The DCA noted the Employer/Carrier’s belief that it was being punished for taking action in termination of claimant’s employment and that claimant is being rewarded for her “bad thoughts.” However, the DCA stated that nothing has changed the ability of the Employer to take actions it deems appropriate to safeguard its workplace, but when the Employer/Carrier seeks to deny benefits based on employee “misconduct” they must present evidence to prove its defense which the Employer failed to do in this case.
JCC ORDERS
Nizar Dawaliby v. School Board of Broward County/Comp Options
JCC Lewis; Ft. Lauderdale District; Order Date: May 24, 2016
OJCC Case: 09-025453DAL; D/A: 9/15/2009
Claimant’s Counsel: Eric L. Berger
Employer/Carrier’s Counsel: Lorna E. Brown-Burton
Briefly: DISMISSAL FOR LACK OF PROSECUTION – JCC Lewis granted the Employer/Carrier’s Motion to Dismiss for lack of prosecution and found there was no “legally sufficient good faith reasonable basis” shown for the claimant’s failure to timely prosecute the claims for attorney’s fees and costs for which jurisdiction was reserved.
Summary: The JCC found it was undisputed that no Petition for Benefits, Response, Motion, Order, Request for Hearing, or Notice of Deposition was filed during the 12 months preceding the filing of the Employer/Carrier’s Motion to Dismiss. The JCC explained the evidence revealed an order was entered by the JCC on July 26, 2010, administratively closing the file and dismissing the pending Petitions except for the reservation of jurisdiction to determine any issues of attorney’s fee or costs. The JCC cited the case of Limith v. Lenox on the Lake d/b/a FTMI Operator, LLC, 163 So. 2d 616 (Fla. 1st DCA 2015) holding that when there is no Petition, Response, Motion, Order, Request for Hearing, or Notice of Deposition filed in the twelve months preceding the filing of the Employer/Carrier’s Motion to Dismiss, the outstanding claims for attorney’s fees and costs may be dismissed pursuant to F.S. §440.25(4)(i).
The JCC rejected claimant’s counsel’s contention that because he assumed handling of this case along with over 100 cases from a prior law firm in April 2014, good cause exists to excuse the failure to prosecute. The JCC found “good cause” requires some reasonable basis for non-compliance within the times specified, rather than simple inadvertence, mistake of counsel, or ignorance of the Rules.
Erica Goeke v. Brown Boxer Pub and Grille/Summit Claims
JCC Spangler; Tampa District; Order Date: May 24, 2016
OJCC Case: 15-002090EDS; D/A: 9/20/2014
Claimant’s Counsel: John Sharpless
Employer/Carrier’s Counsel: Timothy Jesaitis
Briefly: CLAIMANT-PAID ATTORNEY’S FEES – JCC Spangler found the claimant-paid attorney’s fee as part of the washout settlement agreement was reasonable considering the amount of benefits actually secured for the claimant by counsel, even though claimant’s attorney did not seek to include the considerable value of benefits secured after a Petition for Benefits was filed in support of the fee.
Summary: The JCC noted that in this case, the attorney’s fee for which approval was sought was an amount equal to 25% of the gross amount of the settlement. The case settled for $75,000 and the amount of the requested fee for which approval was requested was $18,750, an amount greater than the guideline under F.S. §440.34(1).
The JCC reviewed payout records supplied post-hearing by the Employer/Carrier regarding payments to treating physicians, consulting physicians, testing, hospital fees for surgery and post-surgical care, and post-surgical treatment in the form of therapy and medications exceeding $100,000.00.
The JCC found that, if the claimant were being held fully responsible for attorney’s fees resulting from the amount of benefits accrued to her following the pursuit of the Petitions and the amount generated from settlement, the value of these benefits would be approximately $175,000, and would generate an attorney’s fee of approximately $18,750 based on the statutory guidelines provided in F.S. §440.34(1).
The JCC also noted that claimant signed an employment agreement for a contingency fee with the law firm at issue on December 5, 2014, wherein the claimant agreed to compensate the firm by paying a fee of 25% of any recovery or lump sum settlement up to one million dollars, if, as occurred in this case, the Employer/Carrier conceded compensability in its initial response to filing the Petition for Benefits and no final hearing occurred before the settlement was reached. The agreement also provided a clause which indicated the claimant agreed to waive the application of the statutory guideline provision of F.S. §440.34(1).
The JCC found the amount of the attorney’s fee requested for approval, $18,750, is a reasonable amount and coincides with the amount of fees requested pursuant to the retainer agreement. The JCC noted that claimant’s counsel’s presentation at the hearing was based strictly on the contract of employment. For reasons not clearly expressed in the claimant’s presentation, claimant’s counsel did not seek to include the considerable value of benefits (approximately $100,000) provided to the claimant by the Employer/Carrier after a Petition for Benefits was filed. The JCC found that in this case, the amount of benefits secured for the claimant by counsel provided a basis for an attorney’s fee under the schedule and that there was no need to go beyond the statutory guidelines to provide for the proper fee.
Terri McLennan v. Intelistaff Healthcare/ACE USA, ESIS WC Claims
JCC Almeyda; Miami District; Order Date: May 25, 2016
OJCC Case: 03-037650ERA; D/A: 8/24/2003
Claimant’s Counsel: Scott Gow
Employer/Carrier’s Counsel: Mercedes de los Santos
Briefly: ATTORNEY’S FEE AMOUNT – JCC Almeyda awarded an attorney’s fee of $31,530 representing 105.1 hours of attorney time at $300 per hour as testified by the Employer/Carrier.
Summary: JCC Almeyda found that a $300 hourly rate is reasonable under these circumstances and explained that while the case was not novel, there were several mediations. The JCC noted the defense firm is a well-established firm with experienced attorneys, and that claimant’s counsel did not mention board certification in his listing of qualifications. The JCC found the extent of the labor dedicated to prosecute this case indicates a lesser degree of experience in handling routine workers’ compensation matters and, given these factors, the hourly fee of $300 as testified by the Employer/Carrier is accepted as reasonable.
The JCC found the guideline amount is unreasonable in this case as it would result in an hourly rate of $76.76.
Bienvenido Garcia v. Medcare Quality Medical Centers, LLC/Frank Winston Crum Insurance, Inc.
JCC Kerr; Miami District; Order Date: May 25, 2016
OJCC Case: 15-024795MGK; D/A: 7/2/2014
Claimant’s Counsel: Frank Cerino
Employer/Carrier’s Counsel: Alexander Almazan & Lianet Rodriguez
Briefly: COMPENSABILITY; COURSE AND SCOPE OF EMPLOYMENT – JCC Kerr denied the claim for compensability and found the claimant was not in the course and scope of employment at the time of the accident when he drove patients home in his personal vehicle in violation of company policy.
Summary: The claimant was a driver for the Employer, a facility that provides medical and social services for the elderly. The claimant alleged an industrial accident occurred when he was involved in a motor vehicle accident following the end of his shift when he was allegedly asked by the Employer to drive three patients/clients home in his personal vehicle because it was raining and apparently there were delays in transporting patients to their homes.
The Employer presented various witnesses who testified it was against company policy to transport any patient in a personal vehicle and that they had no knowledge the claimant was transporting patients. Further, evidence presented by the Employer reflected that at no time immediately after the accident did the claimant report the motor vehicle accident as work-related. The Employer/Carrier alleged the claimant had developed friendships with other patients.
The JCC accepted the testimony of the Employer witnesses over that of the claimant and found there was no evidence to support the claimant’s allegations that the Employer had knowledge the claimant was using his personal vehicle to transport patients. The JCC found the claimant gave conflicting times for the accident and based on numerous inconsistencies in the claimant’s testimony, the JCC rejected his testimony. The JCC found the claimant was not in the course and scope of his employment at the time of the accident.
Anthony Brand v. Tradesmen International, Inc./Gallagher Bassett Services, Inc.
JCC Humphries; Jacksonville District; Order Date: May 25, 2016
OJCC Case: 11-013146RJH; D/A: 11/18/2010
Claimant’s Counsel: Gus Vincent Soto
Employer/Carrier’s Counsel: Scott V. Berglund
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Humphries granted the claim for a return appointment with Dr. Keller for claimant’s low back and accepted the opinion of Dr. Rogozinski, the claimant’s IME physician, that the claimant requires a spine specialist or orthopedic physician to determine the definitive diagnosis of the claimant’s condition before determining a treatment plan.
Summary: The claimant sustained a hip injury as a result of an industrial accident and eventually had a hip replacement surgery which caused his left leg to be longer than his right. According to the claimant, this caused him to overcompensate, resulting in additional back pain.
The JCC noted the Employer/Carrier previously authorized Dr. Michael Scharf to evaluate the claimant’s back and that Dr. Scharf testified the major contributing cause of the claimant’s low back condition was 80% related to the degenerative spine. However, Dr. Scharf agreed the claimant had an altered gait as a result of hip pain related to the compensable injury, and that an altered gait can cause a degenerative disc.
The JCC found that while Dr. Scharf expressed an opinion that the major contributing cause of the claimant’s back condition was due to pre-existing degenerative changes, he did not account for what he concluded to be critical information, that there was a disparity in the length of the claimant’s left and right legs. The JCC found Dr. Rogozinski’s opinion to be better reasoned and more logical than Dr. Scharf’s opinion, especially considering Dr. Rogozinski had knowledge of all the pertinent facts whereas Dr. Scharf apparently did not.