FL Case Law Summaries – 6/10/16
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JCC ORDERS
Richard Seay v. Republic Services d/b/a Florida Refuse/CCMSI
JCC Lorenzen; Tampa District; Order Date: June 3, 2016
OJCC Case: 15-025298EHL; D/A: 12/4/2014
Claimant’s Counsel: Bradley Smith
Employer/Carrier’s Counsel: Philip Augustine
Briefly: TPD; MMI; MISCONDUCT DEFENSE– JCC Lorenzen awarded temporary partial disability benefits from August 7, 2015, through November 11, 2015, and found the claimant reached overall MMI on November 11, 2015, and denied the request for TPD thereafter.
Summary: The JCC found the claimant’s IME physician, Dr. Fiore, opined that claimant reached MMI for his left knee injury on April 5, 2016. Dr. Fiore selected April 5, 2016, as the MMI date for no reason other than it was the date of his second examination of the claimant. During that examination, Dr. Fiore did not identify any clinical findings or symptoms not described in his prior report of December 9, 2015, and the MRI of claimant’s left knee only served to allow Dr. Fiore to provide a better diagnosis than knee pain to attach to claimant’s knee complaints.
The JCC found the authorized treating physician, Dr. Alexander, diagnosed the claimant with a hip fracture and placed him at MMI for that condition on November 11, 2015.
The JCC noted the definition of maximum medical improvement is that date after which further recovery or lasting improvement can no longer be reasonably expected. The JCC found that claimant reached overall MMI on November 11, 2015, because, based on the medical records and testimony, it was the date it was no longer reasonable to expect further recovery or lasting improvement in claimant’s condition and the only care recommended for either claimant’s knee or hip was palliative in nature. The JCC found there was no competent evidence to support Dr. Fiore’s opinion that the claimant did not reach MMI until April 5, 2016.
Based upon work restrictions posed on the claimant by Dr. Alexander during the period of time from August 7, 2015, through November 11, 2015, due to the compensable injury, TPD benefits were awarded during this time.
Regarding the misconduct defense, the JCC found the Employer required the claimant to return to his regular work duties without providing a helper during the time in which the claimant was restricted by his authorized physician from performing all the activities of the job. The JCC explained it was not misconduct for an employee to refuse to perform an assigned work duty if the refusal was reasonable.
Joshua Chaplin v. CVS /Gallagher Basset Services
JCC Humphries; Jacksonville District; Order Date: June 3, 2016
OJCC Case: 10-027198RJH; D/A: 10/4/2010
Claimant’s Counsel: Ashley Wren
Employer/Carrier’s Counsel: Jennifer Armstrong
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Humphries denied the claim for continued authorization of future medical treatment and found that the work place accident is no longer the major contributing cause of the need for treatment and medications.
Summary: The claimant reported a repetitive trauma to his low back and the Employer/Carrier accepted only a temporary aggravation of a pre-existing condition of the lumbar spine. It was shown that prior to the accident of October 4, 2010, the claimant had a chronic, pre-existing lumbar and cervical spine condition. The claimant had a prior laminectomy and fusion at L4-5 and L5-S1 in 2009 and C5-6 disk implant in 2010 for his pre-existing, non-work related conditions.
Dr. Ismail Salahi was authorized by the Employer/Carrier for pain management treatment related to the temporary aggravation of the pre-existing lumbar condition. Dr. Salahi opined that the claimant sustained only a temporary aggravation of the pre-existing condition and that the major contributing cause and the need for additional care is not the reported work accident.
The JCC found the opinions of Dr. Salahi are not contradicted and are not disputed based upon the existing medical evidence. Accordingly, the JCC found the claimant failed to meet his burden of proof establishing a work place accident was a major contributing cause of the need for continuing treatment and medications.
The JCC cited various case law including Bysczynski v. United Parcel Services, 53 So. 3d 328 (Fla. 1st DCA 2010) and Osceola County School Board v. Pabellon-Nieves, 152 So. 3d 733 (Fla. 1st DCA 2014), for the premise that in order to be considered a contributing cause, a pre-existing condition must have produced the need for medical care before the accident or caused the claimant to have disability or impairment prior to the industrial injury.
Kelvin O’Neill v. City of Ft. Lauderdale/Gallagher Bassett Services, Inc.
JCC Lewis; Ft. Lauderdale District; Order Date: June 3, 2016
OJCC Case: 15-027143DAL; D/A: 9/21/2015
Claimant’s Counsel: Michael Srebnick
Employer/Carrier’s Counsel: Darrel King
Briefly: ONE-TIME CHANGE OF PHYSICIANS – JCC Lewis found the Employer/Carrier timely responded to the claimant’s request for a change in physician under F.S. §440.13(2)(f) and found that when computing the time period in which to respond, the day of the act or event from which the designated period of time begins to run shall not be included.
Summary: The JCC noted it is not disputed that on November 18, 2015, the claimant filed a Petition for Benefits which sought a one-time change of physician. By email dated November 23, 2015, at 5:58 p.m., the Employer/Carrier responded and authorized Dr. Harrish Thaker as the one-time change.
The JCC found the statute provides that the carrier must authorize an alternative physician within five days after receipt of the request. The JCC found that the applicable rule in this situation is Florida Administrative Code Rule 60Q-6.109, entitled “Computation of Time” which provides that “In computing any period of time prescribed or allowed by these rules, by order or by applicable statute, the day of the act or event from which the designated period of time begins to run shall not be included…” Consequently, the JCC found the servicing Agent had until midnight on November 23, 2015, within which to respond in order to retain the right of selection of the physician.
Antonio Ramos v. Ace Real Estate Ventures, LLC/Travelers Insurance
JCC Kerr; Miami District; Order Date: June 3, 2016
OJCC Case: 15-029421MGK; D/A: 8/21/2015
Claimant’s Counsel: Steven L. Miller
Employer/Carrier’s Counsel: Kristina Llerena
Briefly: EMERGENCY MOTION FOR MEDICAL TREATMENT –The claimant filed a Motion for Emergency Wound Care and Infectious Follow-up Treatment. The JCC found that an emergency existed pursuant to F.S. §440.25(4)(h), but also found that claimant did not provide competent, substantial evidence to establish the medical necessity of the requested wound care treatment with an infectious disease specialist.
Summary: The JCC noted the claimant’s hand problems were readily observable and accepted the claimant’s testimony that his hand and arm are painful and emit a foul odor. The JCC viewed the claimant’s hand and arm and noted the entire area was red, swollen, and contained multiple lesions which were crusted and unhealed. The JCC found that this observable condition, combined with a physical therapy note, were sufficient to establish an emergency pursuant to F.S. §440.25(4)(h), but insufficient to establish the medical necessity of specific wound care treatment with an infectious disease specialist.
The JCC rejected the Employer/Carrier’s position that there was no evidence of an emergency as the claimant’s condition appeared to be self-inflicted from scratching, and that such treatment should not be the responsibility of the Employer/Carrier.
The JCC ordered that the Employer/Carrier immediately schedule an appointment for the claimant to be seen by the authorized treating physician to evaluate his hand and arm to determine what treatment, if any, is required.
Catherine McGloin v. PCSB/Johns Eastern Company, Inc./Pinellas County Schools
JCC Rosen; St. Petersburg District; Order Date: June 3, 2016
OJCC Case: 15-001225SLR; D/A: 11/11/2014
Claimant’s Counsel: Dane C. Heptner
Employer/Carrier’s Counsel: Pamela A. Walton
Briefly: MISREPRESENTATION DEFENSE – JCC Rosen found the claimant made incomplete and misleading statements in violation of F.S. §440.09 and F.S. §440.105(4)(b)(1) and denied all further benefits under Florida Workers’ Compensation Law.
Summary: The JCC wrote that he knew this claimant through various evidentiary hearings prior to the final hearing on June 1, 2016, that the claimant had multiple attorneys representing her, and that her current attorney came on the case through Notice of Appearance filed as recently as May 2, 2016.
The JCC noted the claimant has complained about attorneys to the Florida Bar on several occasions and that she has been very precise in the nature of her complaints. The JCC found the claimant is well aware of the litigation process from both her prior 2007 injury and the instant 2014 accident.
Based upon prior records, testimony at deposition, reports of physicians regarding medical history before the accident, testimony on multiple occasions before the JCC, and the testimony at the final hearing, the JCC found that it was clear that claimant has continuously been vague in her answers to direct questions under oath, has refused to answer simple “yes” or “no” questions under oath, and has attempted to explain the inconsistencies in her medical history in a light most favorable to herself but contrary to written documents.
The JCC found that, through her “continuous evasiveness” in answering direct questions both in writing and under oath, the claimant has established a pattern that she intentionally makes incomplete or misleading statements to her physicians and to the Employer/Carrier for the purpose of obtaining workers’ compensation benefits.
Fernando Babot v. Norca Air Conditioning, Inc./Amerisure Insurance
JCC Dietz; Sebastian-Melbourne District; Order Date: June 3, 2016
OJCC Case: 13-001065RLD; D/A: 7/13/2012
Claimant’s Counsel: Salvatore Sicuso
Employer/Carrier’s Counsel: Desi Morales
Briefly: PERMANENT TOTAL DISABILITY – JCC Dietz denied the claim for permanent total disability benefits and found the claimant did not meet his burden of establishing that he was permanently and totally disabled. The JCC found the claimant can engage in at least sedentary employment within a fifty mile radius of his residence and that numerous jobs within his restrictions existed in that radius.
Summary: The claimant injured his back while lifting an air conditioner in 2012. He was diagnosed with a herniated disk within annular tear at L4-5 and had a lumbar fusion and bone graft performed. The claimant was placed at MMI in June 2014 with an 8% permanent and physical impairment and released to return to work with restrictions of no lifting over 25 pounds. In January 2016, the claimant was referred to a physiatrist with continuing complaints of pain and prescribed narcotic medications which added restrictions for driving, operating heavy machinery and power tools, working at heights, and ladder climbing.
The JCC reviewed the requirements for the determination of permanent total disability benefits as set forth by the First DCA in Blake v. Merck and Company, 43 So. 3d 882 (Fla. 1st DCA 2010). The JCC considered whether the claimant established (1) permanent medical incapacity to engage in at least sedentary employment, within a 50 mile radius, due to a physical limitation or (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude him from engaging in at least sedentary employment when combined with vocational factors.
The JCC noted the claimant is presently 50 years old, attended school until the 12th grade, and has only held unskilled jobs. The JCC found the claimant contacted 75 potential employers in a six-month period of time and that few of these employers had jobs available within his restrictions. The JCC found that applying only for jobs that are not within one’s work restrictions does not meet the requirement of an “exhaustive” job search. The JCC also noted that claimant did not exhibit pain behaviors during the five hours of trial on the first day, or the three hours of trial on the second day, and did not require position changes until reminded by his attorney three hours into the first hearing.
The JCC accepted the opinions of vocational expert John Roberts and Rebecca Balter over those of James Sullivan and found the claimant can engage in at least sedentary employment within a fifty mile radius of his residence and that numerous jobs within his restrictions existed in that radius.
Joseph T. Wallin v. PGA Tour, Inc./Liberty Mutual Insurance
JCC Lorenzen; Tampa District; Order Date: June 6, 2016
OJCC Case: 15-018516EHL; D/A: 8/9/2011
Claimant’s Counsel: Jeffrey Friedman
Employer/Carrier’s Counsel: Michele Leissle
Briefly: TPD BENEFITS – JCC Lorenzen awarded temporary partial disability benefits and found the claimant had work restrictions in place during the period of time at issue based upon Dr. Leighton’s reports and forms which confirmed the existence of work restrictions which were absent from Dr. Leighton’s prior DWC-25 forms. Additionally, the JCC found claimant did not lose entitlement to TPD benefits when his employment with the Employer came to an end because the requisite causal connection between his restrictions and his loss of earnings was established.
Summary: Although the JCC understood the Employer/Carrier had no way to know the claimant was entitled to temporary partial disability when it received the reported DWC-25 forms from Dr. Leighton, this was not a basis for denying temporary partial disability once the carrier was made aware that the claimant did have work restrictions as explained by Dr. Leighton in his deposition testimony.
The JCC also found the claimant’s separation from employment did not result in a lack of causal connection between the claimant’s lost wages and compensable injury. The Judge noted that even if the claimant had simply called his Employer and announced “I quit”, he would not have lost entitlement to TPD because he immediately located other employment within his restrictions which did not provide him with at least 80% of his pre-injury earnings.
The JCC found the Employer/Carrier did not raise any of the potential affirmative defenses to the payment of temporary partial disability, such as a voluntary limitation of income for misconduct, and only argued lack of causal connection. The JCC found the claimant established a requisite causal connection between his restrictions and his earning loss.
Stephen Ricketts v. Transportation Structures, Inc./CNA Insurance
JCC Lorenzen; Tampa District; Order Date: June 6, 2016
OJCC Case: 12-008745EHL; D/A: 8/26/2010
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: April Coyne
Briefly: STATUTE OF LIMITATIONS – JCC Lorenzen denied benefits and found the claimant did not file a Petition for Benefits within the one year time period and that the statute of limitations barred his claim.
Summary: The JCC found the claimant did not file a Petition for Benefits within the one year time period. The JCC stated “I sympathize with claimant’s statement he relied upon the attorney to represent him at the time to set a doctor’s appointment for him, but the workers’ compensation law imposes the burden on the injured employee, not his attorney.”
The JCC also found that even if he had decided the claimant filed his Petition for Benefits in time to prevent the statute of limitations from running, the claimant failed to prove that the cause of his need for another doctor’s visit was the industrial injury. The JCC noted the authorized treating physician, Dr. White, repeatedly stated claimant’s gout was unrelated to the accident and that claimant needed continuing medical care not caused by the claimant’s compensable injury. The claimant testified he disagreed with Dr. White’s opinion and was convinced his complaints were from the accident, but did not present any medical evidence to support his position.
Latavia Charale Jackson v. Federal Express/Sedgwick, CMS
JCC Hill; Miami District; Order Date: June 6, 2016
OJCC Case: 10-028957CMH; D/A: 11/1/2010
Claimant’s Counsel: Peter S. Schwedock
Employer/Carrier’s Counsel: Jorge A. Pena
Briefly: TEMPORARY PARTIAL DISABILITY – JCC Hill denied the claim for temporary partial disability benefits and found the claimant achieved overall maximum medical improvement prior to the time period temporary partial disability was at issue.
Summary: The JCC found that claimant’s testimony was emotionally charged, combative, and insufficient to override the accuracy of the characterization of her behavior as loud, irate, and disrespectful by Dr. Krost, the authorized pain management physician. The JCC accepted the opinion of Dr. Krost and found, based on the totality of medical evidence, that the claimant achieved overall maximum medical improvement on August 9, 2013, and that no competent substantial medical evidence was produced to demonstrate the claimant underwent any curative or remedial medical procedures subsequent to overall MMI on that date.