FL Case Law Summaries – 6/21/16
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JCC ORDERS
Walter R. Sanders v. Halifax Media Group/ACE USA
JCC Sojourner; Lakeland District; Order Date: June 15, 2016
OJCC Case: 15-008463NES; D/A: 7/18/2014
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Juan C. Garcia
Briefly: MISREPRESENTATION DEFENSE – JCC Sojourner denied all further workers’ compensation benefits under this date of accident and found the claimant materially misrepresented his prior medical condition to his treating physicians.
Summary: The JCC found the claimant sustained a prior back injury for which he treated through December 2015, just six months before the July 18, 2014, work accident when he again injured his back.
The JCC rejected the claimant’s explanation that he did not mention the prior back injury as he did not believe it to be the same problem he currently has. The JCC found the claimant was asked by his doctors about prior back problems and it was his obligation to answer honestly, but he failed to do so.
Luis S. Quiros v. #1 Builders Firstsource/Liberty Mutual Insurance Company and #2 MDT Personnel, LLC/Guarantee Insurance Company/Patriot National Insurance
JCC Holley; Jacksonville District; Order Date: June 15, 2016
OJCC Case: 11-025643WRH; D/A: 8/23/2011
Claimant’s Counsel: Lance Avera
Counsel for Employer/Carrier #1: Heather B. Carbone
Counsel for Employer/Carrier #2: John Joyce
Briefly: CLAIM FOR CONTRIBUTION – JCC Holley denied Builders FirstSource/Liberty Mutual Company’s (BFS) claim for contribution against MDT Personnel, LLC/Guarantee Insurance Company/Patriot National Insurance (MDT), and found that because BFS went beyond the scope of the contractual arrangement with MDT, BFS remain solely responsible for providing workers’ compensation coverage and are not entitled to reimbursement in the amount of $11,126,996.73 as claimed.
Summary: Although the evidence reflected that MDT and BFS entered into a contractual arrangement whereby MDT provided temporary staffing to perform work at BFS’ facility and at BFS’s direction, the JCC found the analysis changed when considering the fact that BFS provided a transportation system, including a van to the claimant and four other individuals employed by either BFS or MDT. The claimant rode in the van and took a turn one day each week to drive the other four workers to and from the Jacksonville work site. The claimant was injured while riding in the van and returning from work. The van was involved in a serious accident and the claimant was ejected from the vehicle. The JCC found this transportation constituted “work being done at the time of the accident” which was essentially done for BFS as a special employer.
Under these circumstances, the JCC found that BFS acted as a special employer and the provision of a van resulted in establishing at least two exceptions to the going and coming rule, thereby making the case a compensable work accident.
The JCC found that MDT secured workers’ compensation for its employees as required by the contract. However, MDT was not statutorily or contractually required to secure coverage for its employees for circumstances outside this contract, such as travel to and from the work site. The JCC found the record did not reflect that MDT was aware or should have been aware that BFS was providing transportation to the MDT workers.
The JCC found the facts demonstrate there was a separate, implied contract for hire between BFS and the claimant and that the work being done at the time of injury was essentially that of BFS, and that only BFS had the power to control the details of the work being done at the time of the industrial accident. The JCC noted that BFS provided transportation to the claimant for travel to and from Lake City and Jacksonville as part of the services that ultimately benefited BFS. The JCC found that this transportation was paid for by BFS and was part of an implied contract of hire between BFS and the claimant.
Cristina Cage, Plenary Guardian for Adam Cage v. Employee Staff, LLC/Zurich American Insurance Company
JCC Rosen; St. Petersburg District; Order Date: June 16, 2016
OJCC Case: 14-025635SLR; D/A: 2/11/2013
Claimant’s Counsel: Stacy Ortiz
Employer/Carrier’s Counsel: Kathryn Letzter
Briefly: GUARDIANSHIP FEES – JCC Rosen denied the claim for payment by the Employer/Carrier for costs of guardianship fees and found the circuit court judge’s appointment of an examining committee in the guardianship proceedings was immaterial to the workers’ compensation claim.
Summary: The claimant argued that based upon the case of Artigas v. Winn-Dixie Stores, Inc., 544 So. 2d 1051 (Fla. 1st DCA 1989), the Employer/Carrier should be responsible for the $2,500 Examining Committee bill for fees and costs spent in establishing a guardianship in circuit court because the Employer/Carrier’s initial Motion to Determine Competency and/or appointment of Guardian was the catalyst for the ultimate guardianship proceeding in circuit court.
The JCC rejected this argument and found the fact the employee’s wife was formally established as his legal guardian in the circuit court proceedings was immaterial to the Employer/Carrier’s continued provision of indemnity benefits to the employee’s wife.
The JCC explained that, prior to the circuit court proceeding, based upon the Employer/Carrier’s Motion to Determine Competency and/or for appointment of a Guardian, the JCC exercised discretionary authority under F.S. §440.17 and determined that a formal Guardian was not necessary, and that the employee’s wife had provided greater weight and preponderance of the evidence that she should be the person appointed to receive the workers’ compensation indemnity benefits.
Maria Mejia v. Escambia County Schools/Corvel Corporation
JCC Winn; Pensacola District; Order Date: June 16, 2016
OJCC Case: 14-006856NSW; D/A: 9/12/2013
Claimant’s Counsel: Bryan Carter
Employer/Carrier’s Counsel: Joseph Hammons
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Winn granted the claim for authorization of left shoulder surgery and found there was no medical evidence establishing claimant’s rotator cuff tears pre-existed the industrial accident.
Summary: The JCC accepted the opinion of the claimant’s IME physician, Dr. Dewey, that the industrial accident was the major contributing cause of the claimant’s rotator cuff tears and that surgery is medically necessary.
The JCC found the authorized treating physician, Dr. Kronlage, was also of the opinion that the industrial accident was the major contributing cause of the rotator cuff tears and the need for surgery. However, it was only after the claimant returned to Dr. Kronlage complaining of multiple, new, unrelated and inexplicable symptoms that Dr. Kronlage understandably deemed it best to distance himself from the claimant and her care and treatment, placing her at maximum medical improvement and essentially discharging her from his care. The JCC rejected Dr. Kronlage’s explanations that he could identify no accident or acute injury and that the rotator cuff tears are either the result of the claimant being in poor physical shape, or are consistent with pre-existing degenerative changes.
The JCC found Dr. Dewey’s findings and opinions more consistent with both logic and reason when considering the undisputed facts that claimant never experienced any prior problems with her left shoulder and the lack of medical evidence establishing a cause other than the industrial accident as the major contributing cause of the rotator cuff tears and need for surgery.
Maurizo Maritz v. SBOC/Johns Eastern Company, Inc.
JCC Condry; Orlando District; Order Date: June 16, 2016
OJCC Case: 15-019522WJC; D/A: 5/21/2015
Claimant’s Counsel: David I. Rickey
Employer/Carrier’s Counsel: Pamela J. Cox and Jodi Mustoe
Briefly: MISREPRESENTATION DEFENSE – JCC Condry found the claimant violated F.S. §440.09(4) and F.S. §440.105(4)(b) by intentionally making false, misleading, and incomplete oral statements in advancing his workers’ compensation claims and noted the claimant’s activities depicted on the video were not consistent with an accident as he described in his statements to his doctors, in deposition, and to the JCC at trial.
Summary: The claimant worked as a bus driver and reported sustaining an injury to his right elbow in the course of his employment. The Employer/Carrier initially accepted the injury as compensable, but after reviewing a video from the bus where the claimant alleged this accident occurred, the carrier suspended benefits.
In reviewing the video, the JCC noted that although the claimant’s arm may have brushed the back of the seat, it did not appear to be the kind and degree of trauma for the condition or injury to be related to the incident. The JCC found there was no direct blow to the tip of the elbow. The JCC noted that Dr. Wortman, the only physician who reviewed the video and commented on it, reached the same conclusion as the JCC.
Bartola Santamaria v. Alabama Farmers Cooperative/Sentry Casualty Company, Sentry Claims Services
JCC D’Ambrosio; West Palm Beach District; Order Date: June 17, 2016
OJCC Case: 12-001546MAD; D/A: 10/7/2011
Claimant’s Counsel: Frank Clark
Employer/Carrier’s Counsel: Christine Tomasello
Briefly: PTD BENEFITS– JCC D’Ambrosio granted the claim for permanent total disability benefits and found the claimant performed an exhaustive, good faith job search and that her permanent work-related physical restrictions combined with vocational factors was proof of her inability to perform at least sedentary work within a 50-mile radius of her home.
Summary: The claimant is a 49 year-old woman, with a 6th grade education, who came from Mexico and does not speak or understand English. Her work history includes employment as a fruit harvester, orange packer, and farm worker. She suffered a work accident when bundles of soil fell from a forklift above her head, causing an injury to her low back and neck. The claimant sustained a herniated disk in her low back and eventually attained maximum medical improvement with a 7% permanent impairment rating, including work restrictions against lifting and for alternate sitting and standing.
The JCC found the claimant has permanent work-related physical restrictions and performed an exhaustive but unsuccessful job search. Although some of the jobs the claimant applied for were outside her work restrictions, the JCC accepted testimony of vocational rehabilitation expert, Luis Rios, on behalf of the claimant that without a high school diploma, the claimant was very limited and “has to look someplace”. The JCC noted that no jobs were offered to her.
The JCC also found that claimant had evidence of permanent work-related restrictions, which, combined with vocational factors, proved her inability to perform at least sedentary work within a 50-mile radius of her residence. In making this determination, again, the JCC accepted the testimony of vocational rehabilitation expert Mr. Rios over that of the expert who testified on behalf of the Employer/Carrier, Jerry Edato, and found Mr. Rios to be more thorough in his evaluation and testing of the claimant. Also, the JCC noted Mr. Rios was able to converse with the claimant in her native language.
Laura Lewis v. Dollar Rent A Car/ESIS WC Claims
JCC Rosen; West Palm Beach District; Order Date: June 17, 2016
OJCC Case: 15-006562TMB; D/A: 3/27/1989
Claimant’s Counsel: Edward Jacobson
Employer/Carrier’s Counsel: Robert D. Friedman
Briefly: FUNCTIONAL CAPACITY EVALUATION – JCC Rosen ordered the claimant to attend a functional capacity evaluation at a facility sufficiently equipped and certified and agreed upon by the parties.
Summary: The JCC cited the case of Wojick v. State of Florida Dept. of Children and Families, 75 So. 3d 362 (Fla. 1st DCA 2011), where the Appellate Court reversed an order of the JCC which required the claimant to attend a functional capacity evaluation. The Appellant Court stated “…We hold the JCC lacked jurisdiction to rule on the matter here, given there is no pending claim for benefits, no statutory authority for an FME per se within Chapter 440, Florida Statutes, and insufficient proof that the FME in this case was ‘medically necessary’ as that phrase is used in Section 440.13(2)(a), Florida Statutes.”
The JCC interpreted the Court’s language in Wojick and noted that, although at the time the Motion to Compel the functional capacity evaluation was filed there was no Petition for Benefits pending, a Petition for Benefits was subsequently filed and was pending at the time of the hearing. Additionally, there is undisputed medical evidence from an authorized treating physician that the FCE will help the physician in determining the future course of claimant’s treatment and, therefore, the issue of the FCE was ripe for adjudication at the hearing.
Based upon the undisputed medical evidence and the pending Petition for Benefits, the JCC found he does have authority to compel an FCE in light of the Wojick decision.