FL Case Law Summaries – 5/4/17
By: Ryan M. Knight – Miami
Contributor: Tara Said – Pensacola
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First DCA Opinions
David Koch v. Pat Salmon & Sons
JCC Humphries: Jacksonville District Opinion Date: April 24, 2017
OJCC Case: 16003630 Date of Accident: 10/27/2012
Claimant’s Counsel: Monte Shoemaker Employer/Carrier’s Counsel: David Drill
Appellate Counsel: Tara Said
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: PTD – The Claimant sustained injuries to his cervical spine, left shoulder, and neck as the result of the workplace accident. Claimant petitioned for PTD benefits despite being placed at MMI by only one of his numerous authorized treating physicians. The JCC ruled the Claimant was not at overall MMI and that his ongoing injuries for which he had not been placed at MMI played a significant role in his ability to find suitable work within a 50 mile radius. As such, the JCC denied the request for PTD benefits.
Summary: The Claimant had yet to be placed at MMI by his Neurologist or Orthopedic shoulder physician. The JCC noted that it was unclear if the Claimant’s Orthopedic spine physician had actually placed the Claimant at MMI because that doctor had recently referred the Claimant to a pain management physician and as such, his care seemed to continue as curative rather than palliative. The Claimant presented at final hearing wearing sunglasses and indicated that he was very sensitive to light. These migraine type symptoms caused the Claimant to be frequently bedridden. While the JCC acknowledged Claimant’s suggestion that PTD benefits could be awarded prior to overall MMI if one of his conditions by itself prevent him from finding suitable work, the JCC found that the Claimant’s injuries which were not at MMI were greatly contributing to his limitations. PTD benefits were therefore denied.
JCC ORDERS
Lisa Fischer v. Orange County Fire and Rescue
JCC Sculco: Orlando District Order Date: April 25, 2017
OJCC Case: 16-023600 Date of Accident: 07/23/2013
Claimant’s Counsel: Sandra McAuley E/C’s Counsel: Karen Cullen
JCC Order: Click Here
Briefly: Statute of Limitations – The adjuster testified that the Claimant was mailed an initial claim information packet which contained information regarding the statute of limitations. The Claimant admitted to receiving the packet but maintained that no statute of limitations information was contained in the packet. The JCC ruled that the claim was barred by the statute of limitations and that the Claimant failed to prove she did not receive the statute of limitations information.
Summary: Two different adjusters testified at final hearing indicating that they had sent the Claimant statute of limitations information as part of numerous MMI letters. The adjuster notes also indicated that the claim’s original adjuster mailed the Claimant an initial claim information packet which contained statute of limitations info. It is presumed that mail properly addressed, stamped, and mailed was received by the addressee. The JCC found the Claimant’s testimony unreliable based largely on the fact that she admitted to receiving numerous other documents from the Employer/Carrier, but maintained that she never received any statute of limitations information. The Claimant failed to provide competent, substantial evidence to support her position that she never received the information testified to and thus, the JCC found her claim to be barred by the statute of limitations.
Joshua Graham v. The Morganti Group
JCC Sojourner: Lakeland District Order Date: April 26, 2017
OJCC Case: 16-018287 Date of Accident: 01/04/2016
Claimant’s Counsel: John Sharpless E/C’s Counsel: Frank DeCiutiis
JCC Order: Click Here
Briefly: Compensability (Going and Coming) – The Claimant was driving from his house to a construction site when he was involved in a roll over motor vehicle accident. The Claimant suffered a fractured vertebra as a result of the accident. The JCC ruled that the going and coming rule did not apply and determined the accident occurred in the course and scope of employment.
Summary: The Claimant worked both in the office and from home. He was given a work laptop and was also given a mileage allowance each month to cover the cost of his trips to and from construction sites. He would frequently take documents home to continue working on his laptop and transported various documents to job sites the following day. On the day of the accident, the Claimant was transporting various documents from his house needed to complete a construction project. The JCC found that this case aligned closely with Nikko Gold Coast Cruises v. Gulliford, 448 So. 2d 1002 (Fla. 1984). In that case, the Claimant was asked by her employer to take the store’s daily deposits to the bank after work. She was involved in motor vehicle accident on the way to the bank. The Florida Supreme Court ruled that accident was compensable because the trip had a concurrent business purpose. The same rule applied in this case and the case was deemed compensable because the Claimant’s trip to the construction site also constituted a business purpose.
Rolando Andrade v. Shell Oil Company
JCC Hogan: Ft. Lauderdale District Order Date: April 27, 2017
OJCC Case: 85-000825 Date of Accident: 09/06/1985
Claimant’s Counsel: Erik Grindal & Mark Touby E/C’s Counsel: John McLain
JCC Order: Click Here
Briefly: Medical Benefits – The Claimant’s authorized treating psychiatrist referred the Claimant to a specific neurologist for an evaluation. The Employer/Carrier authorized a neurologist of their own choosing. The JCC found that the Employer/Carrier was not bound by a physician’s referral to a specific doctor so long as the doctor they chose was in the same specialty. The JCC also denied payment of Claimant’s emergency room bill because no evidence was presented that the evaluation was casually connected to the industrial accident.
Summary: The Claimant contended that the Employer/Carrier was bound by the psychiatrist’s referral to a specific neurologist. Claimant’s Counsel cited various cases to support their argument but the JCC ruled that absent a basis in the record for a departure from the established rule, there is no reason to deprive the Employer/Carrier of the right of initial selection of the physician to perform an evaluation.
The Claimant’s authorized treating psychiatrist received a call from the Claimant’s wife stating that the Claimant was experiencing shortness of breath and chest pains. The psychiatrist told the Claimant’s wife to take him immediately to the hospital to rule out a heart attack. During the psychiatrist’s deposition, he stated that any time a patient presented with those symptoms he would recommend they to go the emergency room. He also stated that the evaluation was reasonable and medically necessary but failed to opine that the evaluation was casually related to the industrial accident. The JCC ruled that a Claimant’s reasonable belief that his condition is casually related to the industrial accident is irrelevant. Absent medical testimony linking the evaluation with the industrial accident, the Employer/Carrier cannot be held responsible for the evaluation.