FL Case Law Summaries – 6/23/16
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JCC ORDERS
Cathy Pitts v. Marion County Public Schools/Johns Eastern Company
JCC Hill; Gainesville District; Order Date: June 20, 2016
OJCC Case: 13-014264MRH; D/A: 4/14/2009
Claimant’s Counsel: Daniel Hightower and Barbara Richard
Employer/Carrier’s Counsel: Debrah Zeitler
Briefly: ATTORNEY FEES – JCC Hill awarded attorney’s fees of $300, for 1.2 hours of attorney time at $250 an hour for preparation and attendance at claimant’s deposition when no Petition for Benefits was pending. The JCC denied the Verified Petition of Attorney’s Fees in all other respects.
Summary: It was undisputed the claimant is entitled to attorney’s fees for attendance at claimant’s deposition without a pending Petition for Benefits.
The JCC accepted the Employer/Carrier’s attestation that $250 an hour is a reasonable rate for Ms. Richard’s time and found none of Mr. Hightower’s time was awardable as he did not attend claimant’s deposition. The JCC found Ms. Richard properly spent 1.2 hours of attorney fee time and concluded costs are not awardable under F.S. §440.30, Florida Statutes.
Andre Daley v. Servisair, LLC/Liberty Mutual Insurance
JCC Hill; Gainesville District; Order Date: June 20, 2016
OJCC Case: 13-011110MRH; D/A: 5/14/2012
Claimant’s Counsel: Mark Touby
Employer/Carrier’s Counsel: Rene Lopez
Briefly: TTD TRAINING AND EDUCATION BENEFITS – JCC Hill granted the claim for continued TTD training and education benefits and found the claimant is entitled to an additional 36 weeks of training and education benefits for a total of 52 weeks.
Summary: Claimant seeks payment of temporary total disability training and educational benefits. The Employer/Carrier argued the claimant is not entitled to these benefits because he has received 104 weeks of temporary indemnity benefits.
The JCC found the claimant reached maximum medical improvement on July 27, 2015, and is enrolled in a two-year education program and has 1½ years remaining for completion. The claimant was placed in this program by vocational rehabilitation. The JCC also found that although the claimant has looked for work and has had numerous interviews, he has not been hired because of his permanent work restrictions which include limited overhead activity and no lifting more than 15 pounds.
The JCC cited the Florida Supreme Court’s determination in Westphal v. City of St. Petersburg, 2016 WL 3191086 (Fla. June 9, 2016), that the 104-week limitation in F.S. §440.15(2)(a) is unconstitutional.
The JCC found that since the 104-week TTD limitation in F.S. §440.15(2)(a) has been held to be unconstitutional, resulting in revival of the pre-1994 version of F.S. §440.15(2)(a) which provides for a 260-week TTD limitation period, the 52 weeks of TTD training and education benefits potentially available under F.S. §440.491(6)(b) must also be calculated within a 260-week limitation specified in F.S. §440.15(2) as revived. The JCC reasoned that the availability of benefits under F.S. §440.491(6)(b) is required to be calculated within the benefit limitation contained within F.S. §440.15(2).
Karl A. Spellman v. City of Tampa/Commercial Risk Management
JCC Massey; Tampa District; Order Date: June 21, 2016
OJCC Case: 14-000258MAM; D/A: 12/2/2013
Claimant’s Counsel: Tonya Oliver
Employer/Carrier’s Counsel: Gray Sanders
Briefly: MISREPRESENTATION DEFENSE – JCC Massey denied the misrepresentation defense and accepted the claimant’s testimony that he did not mention an alleged incident involving a gun to his physicians Dr. Pandya and Dr. Fernandez, even though such an event was reported by both physicians.
Summary: The Employer/Carrier argued that the claimant misrepresented his history to his physicians by telling them about an incident involving a gun that never really happened, and he made further misrepresentations when he denied having provided such history to the physicians.
The JCC found the claimant did report to Dr. Pandya and Dr. Fernandez at least one stressful incident that involved a threat of physical violence, with a common thread being that claimant felt deserted or abandoned by his coworkers. The JCC found that Dr. Pandya specifically referred to a gun being used and that Dr. Fernandez seemed to agree that claimant had mentioned a gun, but had no independent recollection of claimant’s “narrative”.
The JCC accepted the claimant’s testimony and found that “While it is plausible that claimant intentionally misled his physicians by embellishing his history, it is equally plausible that something got ‘lost in translation’ by one or both of the physicians recording the history.”
Charles Morales v. City of Ft. Lauderdale/Gallagher Bassett Services, Inc.
JCC Lewis; Ft. Lauderdale District; Order Date: June 21, 2016
OJCC Case: 86-001426DAL; D/A: 11/4/1986
Claimant’s Counsel: Andrea Wolfson
Employer/Carrier’s Counsel: Darrell King
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Lewis granted the claim for permanent total disability benefits and accepted the unrefuted medical opinion of the claimant’s authorized treating cardiologist that the claimant cannot return to work in his current medical condition.
Summary: The claimant is a 68 year-old male who was injured in a compensable workers’ compensation accident in 1986 while working as a firefighter. The claimant was diagnosed with severe hypertension. At the time of the accident, the claimant was 38 years old.
The claimant has since developed coronary disorders, including coronary artery disease, atrial fibrillation, and chronic heart failure. He also suffers from hypertension and underwent a quintuple bypass surgery in 2011, paid for by the Employer/Carrier. The Employer/Carrier has accepted all of the claimant’s cardiac conditions and sequelae as compensable and furnished appropriate medical care for same.
The JCC accepted the opinion of the claimant’s treating cardiologist, Dr. Mas, that claimant cannot return to work in his current medical condition due to hypertension, coronary artery disease, and cardiac conditions. The JCC found the effective date for commencement of permanent total disability benefits was April 24, 2009, the date Dr. Mas was of the opinion that the claimant was patently, medically totally disabled.
The Employer/Carrier contended it did not receive Dr. Mas’ April 24, 2009, report, or that the adjuster could not locate same in her file. The JCC found that this does not obviate the Employer/Carrier’s responsibility and obligation to properly and diligently investigate and notify the claimant of his possible entitlement of benefits.