FL Case Law Summaries – 6/17/16
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JCC ORDERS
Humberto Ramos v. Southern Wine & Spirits/Hartford Insurance Company of the Midwest, and Sedgwick CMS
JCC Winn; Pensacola District; Order Date: June 14, 2016
OJCC Case: 15-015434NSW; D/A: 5/12/2015
Claimant’s Counsel: Kevin Gallagher
Employer/Carrier’s Counsel: Keith Pallo
Briefly: REIMBURSEMENT DISPUTE – JCC Winn granted the Employer/Carrier’s Motion for Summary Final Order and found the reimbursement dispute presented no genuine issue of material fact which the JCC has jurisdiction to determine.
Summary: The claimant filed a Petition for Benefits requesting payment of a medical bill. The Employer/Carrier responded by contending that payment of the bill was the subject of a reimbursement dispute over which the JCC lacks jurisdiction and thus the Employer/Carrier is entitled to a summary final order as a matter of law.
The JCC granted the summary final order and noted that by contending there is a reimbursement dispute, the Employer/Carrier admitted the outstanding bills were from authorized medical providers for compensable conditions, and the dispute about the payment does not implicate the claimant, but is between only the Employer/Carrier and the medical providers. The JCC found the Employer/Carrier’s representation was a binding legal concession by operation of F.S. §440.32(3) and that the Employer/Carrier waived any challenge to the medical necessity of the care.
Charles Letzo v. Orange County School Board of Commissioners/USIS
JCC Pitts; Orlando District; Order Date: June 14, 2016
OJCC Case: 12-026505NPP; D/A: 4/12/2012
Claimant’s Counsel: Charles Leo
Employer/Carrier’s Counsel: Frank Wesighan
Briefly: MEDICAL NECESSITY; PTD SUPPLEMENTAL BENEFITS – JCC Pitts denied the claim for cervical and lumbar surgery and accepted the opinion of the Expert Medical Advisor, Dr. Broom, that the surgeries recommended by Dr. Greenberg were not reasonable or medically necessary. The JCC also denied the claim for PTD supplemental benefits on the grounds the claimant is beyond the age of 62 pursuant to F.S. §440.15(1)(f)1.
Summary: The JCC accepted the opinion of Dr. Broom as the Expert Medical Advisor and found his ultimate opinion that cervical and lumbar spine surgeries as recommended by Dr. Greenberg were not reasonably or medically necessary and do not correlate with objective findings. The JCC noted this same opinion was expressed by several other surgeons involved in the claimant’s care.
The claimant argued that Dr. Broom’s opinions were not entitled to the presumption of correctness based upon testimony of the claimant’s wife, who testified Dr. Broom did not perform the physical examination of her husband, rather the PA did. She stated that while Dr. Broom did talk to her husband, he did not physically examine him. The JCC noted that Dr. Broom testified that while his PA performed most of the examination, he did observe the gait, check the reflexes, measure the scar, reviewed the diagnostic studies, and talked to the claimant and his wife.
The JCC accepted Dr. Broom’s testimony regarding the limited extent of his examination, including that most of the physical examination was conducted by the PA rather than Dr. Broom. The JCC found that Dr. Broom performed a sufficient examination to support the Expert Medical Advisor evaluation and the opinions expressed in this case.
With regard to the PTD supplemental benefits, the JCC noted F.S. §440.15(1)(f)1 which states that the right to supplemental benefits shall not be paid after the employee attains age 62, regardless of whether the employee has applied for or is eligible to apply for Social Security benefits unless the employee is not eligible for Social Security benefits because the claimant’s compensable injury has prevented the employee from working sufficient quarters to be eligible for such benefits. The JCC found the claimant is over the age of 62 and that the exception as noted in the statute does not apply.
Deborah Groves v. Beall’s Outlet, Inc./Sedgwick CMS
JCC Beck; Sarasota District; Order Date: June 14, 2016
OJCC Case: 07-004902DBB; D/A: 3/8/2006
Claimant’s Counsel: Lisa A. Kalo
Employer/Carrier’s Counsel: Thomas P. Vecchio
Briefly: ATTORNEY’S FEES – JCC Beck ordered the Employer/Carrier to pay attorney’s fees representing 220 hours of attorney time at $225 per hour and 21.5 hours of paralegal time at $75 per hour.
Summary: The JCC found that a statutory fee could not be exactly calculated because the value of some benefits at issue has not yet been determined. The JCC noted that both parties agree a guideline attorney’s fee would not be reasonable and, therefore, exceptional circumstances justified a departure from the statutory guideline fee.
The JCC noted the expert opinions on the fee amount customarily charged in the locality range from $200-300 per hour for attorney time and $50-75 for paralegal time. The JCC found that $225 is the fee customarily charged in the locality for attorney’s fee and $75 for paralegal time.