FL Case Law Summaries – 6/13/16
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1ST DCA ORDERS
Annabella Pinera v. Target/Sedgwick CMS
Appeal of the Order from JCC Marjorie Hill
DCA Order Date: June 7, 2016
Case: 1D15-4077; D/A: 8/24/2012
Appellant’s Counsel: Kimberly A. Hill
Appellee’s Counsel: David S. Gold and David B. Stauber
Briefly: PERMANENT TOTAL DISABILITY; MMI – The 1st DCA held that JCC Hill erred when she found the claimant could not be deemed to be at maximum medical improvement from her workplace injury because she was not “totally disabled” and remanded to the JCC for determination of whether or not the claimant meets the legal standards for permanent total disability entitlement.
Summary: The First DCA explained that, in finding the claimant cannot be deemed MMI by operation of law, the JCC focused on evidence that claimant is currently working for the Employer approximately 12 hours per month. The DCA held that the JCC incorrectly assumed that the claimant cannot be deemed MMI unless she is also “totally disabled” in the sense of a complete physical incapacity to work. Furthermore, the DCA concluded the JCC erroneously found that claimant’s current employment prevents a finding of deemed MMI, and, therefore, the JCC did not continue the analysis to determine if the claimant had otherwise met the legal standard for PTD entitlement.
The DCA cited the decision of Westphal v. City of St. Petersburg, 122 So. 3d 440 (Fla. 1st DCA 2013) (en banc) where it was held that a claimant is deemed to be at MMI and therefore eligible to assert a claim for PTD benefits after exhausting the maximum 104 weeks of entitlement of temporary disability benefits. The 1st DCA noted that in the present case, the claimant exhausted her entitlement to temporary disability benefits and was therefore eligible to assert a claim for permanent total disability benefits.
JCC ORDERS
Lucinda Lingor v. Bay State Cable Ties, Landrum Professional Employer Services, Inc./PMA Insurance Company
JCC Winn; Pensacola District; Order Date: June 7, 2016
OJCC Case: 15-006240NSW; D/A: 8/21/2014
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Colleen Ortiz
Briefly: MAJOR CONTRIBUTING CAUSE; COMPENSABILITY – JCC Winn found the pro se claimant failed to carry her burden of proof to establish within a reasonable degree of medical certainty that the major contributing cause of any injury to her upper extremities was the industrial accident. The claimant presented no medical opinion from an authorized provider, IME, or Expert Medical Advisor, to establish medical causation.
Summary: The JCC noted the only medical evidence offered were medical reports of Dr. Noellert and Dr. Jacob admitted for factual purposes only. The claimant presented no medical opinion to support a finding of compensability. The JCC noted that even if the medical records from Drs. Noellert and Jacob were admissible for more than mere factual purposes, neither doctor expressed any opinion regarding causation. Also, the JCC noted that Dr. Jacobs’ records concerned an unrelated low back condition.
Deandre L. Galloway v. Southern Wine & Spirits/Sedgwick CMS
JCC Sojourner; Lakeland District; Order Date: June 8, 2016
OJCC Case: 15-029218MES; D/A: 2/16/2014
Claimant’s Counsel: Joshua C. Nelson
Employer/Carrier’s Counsel: Keith R. Pallo
Briefly: TEMPORARY TOTAL DISABILITY; MMI – JCC Sojourner found the claimant had not attained maximum medical improvement and awarded temporary total disability benefits as the claimant wished to undergo the recommended surgery.
Summary: The claimant previously reached MMI pursuant to the opinion of the authorized physician, Dr. Delgado, who testified the claimant was at maximum medical improvement because the claimant did not want to have the recommended L5-S1 laminectomy and discectomy performed. However, Dr. Delgado also testified that if the claimant was going to have surgery, he would not be at MMI. The Employer/Carrier paid temporary total disability benefits until the MMI date set by Dr. Delgado and, thereafter, paid impairment benefits.
The JCC awarded the requested temporary total disability benefits and found there was no change in the physical status of the claimant since Dr. Delgado testified it was reasonable for the claimant to remain off work pending surgery. The JCC rejected the Employer/Carrier’s contention that the claimant deliberately delayed surgery in order to receive ongoing TTD benefits, and found the delay was not caused by the claimant.
Raul Pardo v. City of St. Petersburg/City of St. Petersburg WC Office, Commercial Risk Management
JCC Rosen; St. Petersburg District; Order Date: June 8, 2016
OJCC Case: 06-017819SLR; D/A: 2/24/2006
Claimant’s Counsel: Joey D. Oquist
Employer/Carrier’s Counsel: Danielle Martin
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS; MMI – JCC Rosen awarded temporary partial disability benefits and found the claimant had not reached overall maximum medical improvement and was undergoing remedial treatment from the authorized physician.
Summary: The Employer took the position that claimant reached overall maximum medical improvement in November 2006 based only on the opinion of Dr. Davis, the authorized treating physician, who performed low back surgery and released the claimant at MMI with work restrictions on November 22, 2006. The claimant testified he was able to work after 2006 driving a dump truck and lifting concrete, but that bouncing in the truck had a negative effect on his low back pain. There was no evidence that any modifications were made to the claimant’s job until his termination in December 2012.
The JCC noted the claimant also treated with Dr. Hassan for authorized pain management. Dr. Hassan performed numerous procedures on his low back including multiple ablations and epidural blocks, and prescribed medication. Various EMG/NVC studies were also authorized. Dr. Hassan testified that claimant had not reached maximum medical improvement from a pain management standpoint and was on restricted duty after his termination on December 2012. The JCC also noted the claimant recently had a permanent stimulator implanted in his back which greatly improved his symptoms.
The JCC found the claimant was entitled to TPD benefits from December 2012 through February 24, 2016, with penalties and interest. The JCC accepted the claimant’s testimony that his work restrictions, pain and limitations, and reactions to medication kept him from offering his services to any employer because of his presumed lack of dependability. The JCC ordered the Employer to furnish the claimant with the appropriate temporary partial disability DWC-19 forms and that claimant shall complete the forms as appropriate and return them to the Employer within 20 days of receipt.
Marlon Tobar v. SEGAFREDO/AmTrust North America of Florida
JCC Medina-Shore; Miami District; Order Date: June 9, 2016
OJCC Case: 13-007355SMS; D/A: 9/16/2012
Claimant’s Counsel: Joseph P. Perea
Employer/Carrier’s Counsel: David Rigell
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Medina-Shore denied the claim for a follow-up appointment with the authorized treating physician and found the Employer/Carrier provided sufficient medical evidence that the claimant’s compensable injury resulting from the ingestion of bleach is no longer the major contributing cause for continued medical treatment.
Summary: The JCC found that in order to demonstrate a break in the causal chain, the Employer/Carrier is not limited to merely showing a pre-existing condition or a subsequent event. The Judge explained there are other ways of showing a break in the causal chain, such as when a non-permanent industrial injury completely resolves.
The JCC accepted the opinion of Dr. Grossman, an authorized board-certified gastroenterologist, that there are no objective relevant medical findings of any disease or condition related to the industrial accident. The JCC found Dr. Grossman’s testimony established a break in the causal chain and that the claimant’s compensable injury is no longer the major contributing cause of the need for medical treatment.
The JCC emphasized that the mere occurrence of the compensable injury does not guarantee an injured worker the right to receive medical care for life. The injured worker remains so entitled only for as long as the compensable injury continues to cause the need for additional treatment.