FL Case Law Summaries – 6/15/16
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JCC ORDERS
James Boyle v. JA Cummings, Inc./Gallagher Bassett Services, Inc.
JCC Lewis; Ft. Lauderdale District; Order Date: June 10, 2016
OJCC Case: 15-006152DAL; D/A: 5/12/2014
Claimant’s Counsel: James Hack
Employer/Carrier’s Counsel: Robert Rodriguez
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Lewis denied the request for surgery, the associated claims for temporary disability benefits, and the claim for continuing treatment with a pain management specialist, and found the EMA testified the claimant’s pre-existing degenerative cervical arthritis and other pre-existing pathology in the neck were the major contributing cause of the need for the recommended cervical surgery.
Summary: The JCC noted the Employer/Carrier previously accepted the claimant’s industrial accident, including neck and low back injuries as compensable. The JCC accepted the opinions of the Expert Medical Advisor, orthopedic surgeon Dr. Lang, regarding the major contributing cause of the need for the claimed anterior cervical discectomy and fusion surgery. Based upon Dr. Lang’s opinions, the JCC found that any need for the surgery is not the result of the work accident or its sequela.
The JCC noted the carrier must demonstrate a break in the causation chain, such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the compensable injury, in order to contest the accident as no longer the major contributing cause of the injury.
However, the JCC also explained that in Osceola County School Board v. Pabellon-Nieves, 152 So. 3d 733 (Fla. 1st DCA 2014), the DCA did not hold that age-appropriate or age-related illnesses or conditions can never be a contributing cause of a disability or need for treatment for the purposes of the major contributing cause analysis. Instead, “what matters is whether there is medical evidence that it (the age-related degenerative condition) is the major contributing cause of the need for the requested treatment.”
Raymond Jean v. Conalvias USA/Summit
JCC Weiss; Ft. Myers District; Order Date: June 10, 2016
OJCC Case: 15-022514JAW; D/A: 3/23/2015
Claimant’s Counsel: Brian O. Sutter
Employer/Carrier’s Counsel: David Hamilton Roos
Briefly: MISREPRESENTATION DEFENSE – JCC Weiss denied the claims for surgery and disability benefits and found the claimant forfeited his entitlement to all workers’ compensation benefits under Chapter 440 when he denied and concealed a prior history of lumbar injury, pain, and medical treatment from a prior motor vehicle accident.
Summary: After reviewing the claimant’s deposition testimony and various records regarding the claimant’s prior motor vehicle accident, the JCC concluded the claimant’s deposition testimony was misleading and incomplete. The JCC also found the claimant intentionally made misleading, false statements to his authorized treating providers, including Dr. Paul Fortier and Dr. Muhammed Memon.
The claimant argued that Dr. Fortier nor Dr. Memon’s staff asked him if ever injured his back before the industrial accident. The JCC rejected the claimant’s testimony and accepted the unbiased testimony of both doctors that the claimant failed to disclose his history of injury to his low back. The JCC noted that Dr. Memon testified he is “adamant” that his nurse specifically asked about prior injuries and that the form the nurse completed has a section asking for “Hx of prior injury”. Further, Dr. Fortier testified that he discussed with the claimant whether he had any prior back injuries, symptoms, or treatment, and the claimant told Dr. Fortier that he “had no history of back problems”.
Olivia Weaver Blankenship v. Children and Family Services, State of Florida (DCF)/Division of Risk Management
JCC Hill; Gainesville District; Order Date: June 10, 2016
OJCC Case: 02-038782MRH; D/A: 3/9/2000
Claimant’s Counsel: Christopher Puleo
Employer/Carrier’s Counsel: Stephen Armstrong
Briefly: JCC Hill granted the claim for a multi-purpose bathing apparatus known as The Cove, a walk-in bathtub, and rejected the Employer/Carrier’s defense that a shower chair and grab bars are a reasonable alternative.
Summary: The JCC noted the Employer/Carrier accepted the claimant as permanently totally disabled in 2000 and that claimant’s authorized treating physician, Dr. Bailey, recommended she receive a “multipurpose bathing apparatus known as The Cove”. Dr. Bailey made this recommendation because some type of improvement in the bathing situation at home was critical. Dr. Bailey noted the claimant had multiple recent falls with knee dysfunction and significant left shoulder dysfunction and that bathing is especially difficult given the claimant’s current setup.
The JCC found the claimant met her burden of establishing the medical necessity of The Cove bathing apparatus and that the Employer/Carrier had the burden to obtain evidence as to whether a shower chair and grab bars were a reasonable alternative from Dr. Bailey. The JCC found the provision of a shower chair and grab bars offered by the Employer/Carrier is not a similar setup to The Cove walk-in bathtub apparatus.
In making this determination, the JCC rejected the Employer/Carrier’s arguments that the claimant was required to depose Dr. Bailey and have the claimant present at trial to testify. The JCC found the major contributing cause of the need for The Cove bathing apparatus or similar setup was not at issue; the only issue for adjudication was whether the Employer/Carrier was offering a similar setup to The Cove bathing apparatus and, therefore, the testimony of Dr. Bailey and the claimant present at trial were not necessary.
The JCC admitted into evidence Dr. Bailey’s office note and a DWC-25 form over the Employer/Carrier’s objection that they were not authenticated and not admissible and noted the Employer/Carrier did not object to this evidence at the pretrial stipulation, but raised the objection for the first time at final hearing. The JCC found the Employer/Carrier waived any argument as to the authenticity of these documents and was estopped from raising this argument.
Ian Latchmansingh v. Travel Advantage Network/Travelers Insurance
JCC Condry; Orlando District; Order Date: June 10, 2016
OJCC Case: 15-028645WJC; D/A: 12/23/2013
Claimant’s Counsel: Jesse D. Rowe
Employer/Carrier’s Counsel: Justin R. Crum
Briefly: PAIN CREAM – JCC Condry denied the request for authorization of pain cream and found the claimant did not satisfy his burden of proving the medical necessity of the requested pain cream.
Summary: The claimant alleges that authorization of a pain cream was ordered by Dr. Krumins, the authorized orthopedic treating physician. Dr. Krumins prepared a report wherein he indicated he ordered a pain cream from a compound pharmacy and stated “This may help him”.
The JCC noted there was an absence of deposition or any testimony addressing the details of the cream compound or addressing its medical necessity. The JCC found there was no prescription provided to the Employer/Carrier indicating what pain cream compound was going to be provided to the claimant or whether the doctor had in fact requested anything in particular for the carrier to provide. The JCC found that just because the doctor ordered the pain cream compound does not make it medically necessary. The JCC explained that the doctor provided no direct testimony on the medical necessity issue and, at best, indicated the compound might help.
Luis Enrique Gonzalez v. ADP TotalSource/Liberty Mutual Insurance
JCC Weiss; Ft. Myers District; Order Date: June 13, 2016
OJCC Case: 13-003207JAW; D/A: 11/11/2012
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: Sal Richardson
Briefly: FAILURE TO ATTEND MEDICAL APPOINTMENT; OBJECTIVE MEDICAL EVIDENCE – JCC Weiss granted a follow-up appointment with the one-time change physician, Dr. Azar, and rejected the Employer/Carrier’s defense that they are no longer responsible for furnishing the claimant with medical treatment since the claimant failed to attend the initial appointment with Dr. Azar. Further, the JCC rejected the Employer/Carrier’s defense that there is no objective medical evidence that the claimant’s continued complaints and need for treatment continues to be the compensable injury.
Summary: The JCC found that the claimant was never made aware of the initial appointment with the one-time change physician, Dr. Azar, and denied the Employer/Carrier’s defense that future treatment with Dr. Azar should be denied since the claimant failed to attend the appointment. The JCC noted that although defense counsel was entrusted with the responsibility to schedule an appointment with Dr. Azar, nothing within the email to claimant’s counsel advised claimant’s counsel that the carrier would not be issuing an appointment letter to the claimant or that claimant’s counsel was expected to be the sole source of knowledge of the appointment for the claimant.
The Employer/Carrier also defended the claim on the grounds there is no objective evidence that the claimant’s continued complaints and/or need for treatment is related to the compensable injury. The JCC cited the case of Echevarria v. Luxor Investments, Inc., LLC, 159 So. 3d 991 (Fla. 1st DCA 2015) where the DCA made it clear the injured worker’s entitlement to ongoing medical treatment is not guaranteed simply because the injured worker has been assigned an impairment rating. The claimant must show that the requested palliative care is both medically necessary and causally related to the industrial accident.
The JCC noted the Employer/Carrier did not raise a defense that a follow-up appointment with Dr. Azar is not medically necessary. Instead, the only substantive defense raised by the Employer/Carrier was “no objective medical evidence.”
The Employer/Carrier also argued that due to the passage of time, the denial of complaints, and the medical behavior of this kind of injury, there was a break in the causal connection for the need for additional medical treatment. The JCC rejected this contention and found there was no medical evidence that there was a subsequent intervening accident and merely because claimant’s subjective complaints changed from one year to the next was not enough for the JCC to conclude there was a break in the casual connection.