FL Case Law Summaries – 5/31/16
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JCC ORDERS
Dawn McDonald (deceased) and Kevin McDonald v. Faneuil, Inc./Travelers Insurance
JCC Condry; Orlando District; Order Date: May 26, 2016
OJCC Case: 15-027048WJC; D/A: 8/20/2015
Claimant’s Counsel: Lawrence H. Hornsby
Employer/Carrier’s Counsel: Brian C. Dowling
Briefly: DEATH BENEFITS – JCC Condry granted the claim for spousal death benefits and found the clamant/husband satisfied the criteria of being substantially dependent on his wife’s income at the time of her death.
Summary: The claimant/husband and the deceased were married and living together at the time of her death. The Employer/Carrier challenged whether the claimant was “substantially dependent” on his wife for financial support at the time of her death under F.S. §440.02(26).
After reviewing the evidence, the JCC found the deceased worker’s past track record established her work ethic and demonstrated her intent to contribute to her household income. The JCC found the couple was living paycheck to paycheck and had to secure loans from family members to help make ends meet. The JCC found the claimant’s indebtedness could only grow worse due to the loss of his wife’s wages. The JCC found that, because eligibility for dependency benefits is determined at the time of accident and death, the fact that claimant received life insurance benefits from a policy with his wife’s employer following her death was irrelevant.
The JCC stated “It is inconceivable to me how a family in debt to the extent this family was, that the decedent’s 41% contribution to the household income would not be considered substantial or otherwise have an appreciable, marked or real value or affect on their household finances going forward.”
Jesus Zerpa v. Mercedes Electric Supply/Travelers Insurance
JCC Medina-Shore; Miami District; Order Date: May 26, 2016
OJCC Case: 15-019976SMS; D/A: 3/20/2015
Claimant’s Counsel: Michael Goldstein
Employer/Carrier’s Counsel: Kristina M. Llerena
Briefly: IDIOPATHIC CONDITION – JCC Medina-Shore granted the claim for compensability of the claimant’s left foot and ankle injuries and found the claimant sustained a compensable injury while dismounting from his truck, twisting his left ankle, and suffering metatarsal fractures and destructive changes to the joint in his foot.
Summary: There is no dispute the claimant is a long-time insulin diabetic. The JCC found that the claimant’s IME physician, Dr. Michael Cook, was the only physician who reviewed the x-ray films of the claimant’s foot taken both prior to and after the date of accident. Dr. Cook testified there were certain changes in the metatarsophalangeal joints prior to the industrial accident, but no fractures compared to the x-rays subsequent to the industrial accident. The JCC accepted Dr. Cook’s opinions that the claimant suffered metatarsal fractures that set off the destructive changes to the foot joint and that the industrial accident is the major contributing cause of the fractures.
The JCC also noted the Employer/Carrier’s IME physician, Dr. Southerland, opined the work place accident is the major contributing cause of the left foot condition, despite the claimant’s pre-existing diabetes.
The JCC accepted the opinions of Dr. Cook and Dr. Southerland over the contrary opinion of the treating physician, Dr. Kalbac, who opined the radiological changes revealed on the x-rays were due to claimant’s pre-existing diabetic neuropathy.
Charles Brown v. Sunbelt Welding, Inc.
JCC Lorenzen; Tampa District; Order Date: May 27, 2016
OJCC Case: 14-017124EHL; D/A: 12/9/2013
Claimant’s Counsel: Carl Feddeler
Employer’s Counsel: None
Briefly: ATTORNEY’S FEE – JCC Lorenzen ordered the Employer to pay claimant’s counsel $3,000 in attorney’s fees, representing 10 hours of attorney’s time at $300 per hour, and found the Employer failed to file a response to the affidavit or provide any other opinion on the customary hourly rate.
Summary: The JCC found the claimant’s counsel was entitled to an award of fees and taxable costs for the Employer’s failure to attend mediation on two occasions.
The JCC found the Employer never filed the mandatory response to the claimant’s motion and accepted claimant’s counsel’s statement of time and costs as true and correct. The JCC found the $300 per hour rate did not “shock” her conscience
Additionally, the JCC found that claimant’s counsel was very experienced in the field of workers’ compensation and has an excellent reputation.
Scott J. Delia, Sr. v. Stewart Stiles Truck Line, Inc., Transport Industries LP/Liberty Mutual Insurance
JCC Hill; Gainesville District; Order Date: May 27, 2016
OJCC Case: 05-026159MRH; D/A: 2/10/2005
Claimant’s Counsel: Daniel Hightower
Employer/Carrier’s Counsel: Cynthia Denker
Briefly: ATTORNEY’S FEE – JCC Hill rejected the Employer/Carrier’s argument that claimant is not entitled to attorney’s fees because the physical therapy ultimately authorized was for a different duration than originally requested. The JCC awarded attorney’s fees based on attorney time of 5.7 hours at an hourly rate of $350 per hour and paralegal time at $85.00 per hour.
Summary: The JCC found the Employer/Carrier delayed in providing the physical therapy recommended by the authorized physician and that the only reason Dr. Clunn recommended physical therapy for a different duration during her deposition was in an attempt to get the Employer/Carrier to authorize some amount of physical therapy. The JCC explained that to accept the E/C’s argument that Claimant is not entitled to attorney fees for obtaining physical therapy simply because the duration authorized was different from that originally requested would contravene the legislative intent that the workers’ compensation system be self-executing and that needed benefits are promptly provided to the injured worker.
The JCC accepted claimant’s counsel’s position that a reasonable hourly rate for his time was $350 per hour and that a reasonable rate for paralegal time was $85 per hour. The JCC found the Employer/Carrier did not address the reasonable hourly rate or the reasonable number of hours expended and did not challenge the amount of taxable costs requested by the claimant. Consequently, the JCC accepted claimant’s counsel’s affidavit on these issues as uncontested.