FL Case Law Summaries – 5/5/16
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JCC ORDERS
Geraldine Jean-Francois v. Dept. of Juvenile Justice/Division of Risk Management
JCC Rosen; St. Petersburg District; Order Date: May 3, 2016
OJCC Case: 15-018534SLR; D/A: 7/23/2015
Claimant’s Counsel: Steven E. Hovsepian
Employer/Carrier’s Counsel: Valerie Alou & Donald S. Bennett
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME – JCC Rosen ordered the Employer/Carrier to provide the claimant with an authorized orthopedic physician, pay for medical treatment, and pay temporary partial disability benefits, and found the claimant did not voluntarily limit her income by refusing to take the unexplained light-duty job offered by the Employer.
Summary: The JCC found the claimant sustained an injured back arising out of and in the course of employment with the Employer when she was lifting floor mats and felt a slight pain in her right shoulder. The JCC accepted the restrictions of no lifting over five pounds and no repetitive use of the right arm as assigned by the authorized emergency provider.
The JCC found the claimant did not voluntarily limit her income by refusing to take the employment offered by the Employer. The JCC accepted the claimant’s testimony that she felt she should not return to the job in light of the restrictions placed on her because her job with the Employer requires the use of both arms. The JCC accepted the claimant’s testimony that the light duty job was never fully explained to her.
Further, the JCC accepted the claimant’s testimony that she looked for work and filled out job applications with prospective employers and has since been terminated by subsequent Employers for attendance issues. The JCC found no evidence was presented that the claimant told these subsequent Employers about her right shoulder injury or any restrictions with her right arm.
Lorena Dragon-Barroso v. Sheridan Health Corporation/Travelers Insurance Company
JCC Forte; Ft. Lauderdale District; Order Date: May 3, 2016
OJCC Case: 11-010750IF; D/A: 7/22/2009
Claimant’s Counsel: Mark Zientz
Employer/Carrier’s Counsel: Christine M. Tomasello
Briefly: EXPERIMENTAL MEDICAL TREATMENT – JCC Forte granted the claim for Ketamine troches as prescribed by Dr. Ozaktay and found that although the Employer/Carrier was justified in their initial denial of the Ketamine troches because they were unsure of its intended use and needed further clarification, the evidence presented at the hearing supported the conclusion that the Ketamine troches are not experimental or unsafe, but are medically necessary.
Summary: The JCC noted that Ketamine is a form of anesthesia, is FDA-approved, and that both experts in pain management, Dr. Ozaktay and Dr. Ranasinghe, testified Ketamine is used by pain management physicians in treating patients who suffer from CRPS.
The JCC did not find that the prescribed method recommended by Dr. Ozaktay in the form of a troche, versus a more recognized or accepted administration method of IV in a hospital setting or through injections, makes the medication experimental or unsafe.
The JCC reviewed a published peer review article that may raise doubt as to the lack of long-term efficacy of Ketamine for patients with CRPS, but the article is not evidence per se that the use in these patients is experimental or unsafe. The JCC noted that Dr. Ozaktay prescribed the troche in combination to treat her flare-ups and as an alternative to a strong opioid like morphine that she has been taking. The JCC also noted the claimant testified the troches actually help her.
The JCC rejected the Employer/Carrier’s argument that because Dr. Ozaktay is recommending other treatment modalities such as aqua therapy, acupuncture and heating pads, that the Ketamine is not medically necessary.
Further, the JCC found the fact that Dr. Ozaktay used the words “medically beneficial” rather than “medically necessary” when referring to the Ketamine troche does not, as a matter of law, preclude authorization of the medication. The JCC found the totality of the evidence and the unrebutted medical testimony supports the fact that the Ketamine troches are reasonable and medically necessary to treat the claimant’s compensable CRPS.
Henry Diaz v. Palmetto General Hospital/Sedgwick CMS
JCC Kerr; District; Order Date: May 3, 2016
OJCC Case: 11-002425GCC; D/A: 5/10/2010
Claimant’s Counsel: Martha D. Fornaris
Employer/Carrier’s Counsel: Vanessa Lipsky
Briefly: ATTORNEY’S FEES – On remand following the Castellanos decision, the JCC awarded the claimant $42,000 in fees based on a reasonable hourly rate including 120 hours spent pursuing $8,956.44 in benefits.
Summary: The Supreme Court of Florida on April 28, 2016, reversed and remanded this case in light of the Castellanos decision. The Supreme Court noted the Judge of Compensation Claims determined an hourly rate of $13.28 based upon 120 hours of work under the statutory guidelines pursuant to F.S. §440.34 which have since been found to be unconstitutional. The Supreme Court noted the JCC initially found that a $350 hourly rate would have been reasonable.
Michaud Barthelemy v. Landry’s, Inc./Corvel Corporation
JCC Pitts; Orlando District; Order Date: May 3, 2016
OJCC Case: 15-022933NPP; D/A: 12/29/2014
Claimant’s Counsel: Daniel T. Gross
Employer/Carrier’s Counsel: Brian C. Dowling
Briefly: TEMPORARY PARTIAL DISABILITY; CAUSATION CHAIN – JCC Pitts awarded temporary partial disability benefits from July 2015 through April 2016 and granted the claim for compensability of the claimant’s right shoulder condition and authorization of medical treatment. The JCC denied the Employer/Carrier’s defense that the compensable accident is no longer the major contributing cause of the right shoulder condition.
Summary: The JCC noted the Employer/Carrier is required to provide reasonable and necessary medical care for an injury accepted as compensable under the provisions of F.S. §440.09(1), so long as the accident remains the major contributing cause of the injury. The JCC noted the major contributing cause standard does not apply unless some other condition is contributing to the claimant’s need for medical care. The mere existence of a pre-existing condition will not serve to establish the issue of major contributing cause. Rather, in order to consider it a contributing cause, the condition must have produced the need for medical care before the accident or caused a claimant some disability or impairment.
The JCC also noted that if the Employer/Carrier has accepted compensability of the injury, the burden shifts to the Employer/Carrier to prove either the injured employee had an intervening accident or developed an intervening condition which disrupted the casual relationship.
The JCC found the Employer/Carrier failed to meet its burden that the causal chain was broken between the original compensable accident and the current condition and the need for treatment. The JCC accepted the claimant’s testimony as credible, sincere, and believable that he has had right shoulder pain and symptoms ongoing since the accident and that his problem has not resolved.
With regard to temporary partial disability, the JCC accepted the testimony of the authorized physician, Dr. Reuss, that he would relate the need for surgery to the December 29, 2014, accident if the claimant did continue to have pain from his date of injury all the way up to when Dr. Reuss initially evaluated the claimant. Accordingly, the JCC retroactively applied the period of potential temporary partial disability benefits back to July 13, 2015, based upon the prior authorized CentraCare physician’s work restrictions at the time.