FL Case Law Summaries – 6/27/16
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JCC ORDERS
Genson Idorvil v. Keystaff, Inc./Gallagher Bassett Services, Inc.
JCC Lewis; Ft. Lauderdale District; Order Date: June 22, 2016
OJCC Case: 15-006243DAL; D/A: 3/6/2015
Claimant’s Counsel: Kevin Gallagher
Employer/Carrier’s Counsel: Jorge Pena
Briefly: MOTION TO COMPEL DOCTOR TO ATTEND DEPOSITION – JCC Lewis granted the Employer/Carrier’s Motion to Compel Dr. Laura Sudarsky to attend deposition and noted the Employer/Carrier alleged the doctor was unwilling to accept a $200 per hour expert witness fee for deposition.
Summary: The JCC found that pursuant to F.S. §440.13(10), the physician shall be compensated at $200 per hour and cited the case of Marton v. Florida Hospital Ormond Beach, 98 So. 3d 754 (Fla. 1st DC 2012), indicating the doctor is entitled $200 an hour for attendance at deposition, as well as $200 an hour for time spent preparing for the deposition and reviewing the records.
The JCC noted at the hearing Dr. Sudarsky stated she would be willing to appear for the deposition. The JCC found that if Dr. Sudarsky requires pre-payment of the $200 deposition fee, the Employer/Carrier shall comply.
Shantell Stepps-Bing v. AJ Wright/Zurich American Insurance Company
JCC Humphries; Jacksonville District; Order Date: June 22, 2016
OJCC Case: 09-031005RJH; D/A: 11/4/2008
Claimant’s Counsel: James McCall
Employer/Carrier’s Counsel: Haley Folmer
Briefly: ATTORNEY’S FEES – Following review of various Lee Engineering factors, JCC Humphries awarded claimant’s counsel $19,642.50 as an attorney’s fee for securing medical and disability benefits, based upon a $225 hourly rate and 87.3 hours of attorney time. Claimant’s counsel requested an hourly fee based upon 124.2 hours of attorney time at $250 per hour.
Summary: The JCC reviewed the time affidavit of claimant’s counsel, the response and objections filed by the Employer/Carrier, as well as the expert witness testimony of Attorney Jonathan Israel in behalf of the claimant and Attorney Thomas Portuallo in behalf of the Employer/Carrier.
The JCC adopted the concerns expressed by the Employer/Carrier’s expert witness about the lack of specificity and compound nature of most of the “block billing” time entries submitted by claimant’s counsel. Although Mr. Portuallo recommended that all “block billing” entries should be stricken, the JCC found the Employer/Carrier took no affirmative steps prior to the hearing to seek more specific time entries from claimant’s counsel.
The JCC made deductions to the time entries based upon work considered to be administrative or secretarial in nature, work performed substantially prior to the filing of the Petition for Benefits at issue, and work performed after fee entitlement was determined. The JCC also made appropriate adjustments for time unnecessarily expended including some of the time identified as “preparation for hearing”. After considering these factors as well as the other Lee Engineering factors, the JCC found that an hourly-based attorney fee was due.
Christopher W. Brinkley v. Vatland Honda/FHM Insurance Company
JCC Dietz; Sebastian-Melbourne District; Order Date: June 22, 2016
OJCC Case: 14-027244RLD; D/A: 9/12/2014
Claimant’s Counsel: Michael K. Horowitz
Employer/Carrier’s Counsel: Esther Zapata Ruderman
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS – JCC Dietz granted the claim for temporary partial disability benefits and found the claimant had assigned work restrictions from his treating physician for the time period at issue.
Summary: The JCC rejected the Employer/Carrier’s argument that Dr. Coren’s instructions regarding wearing a wrist brace while working is the equivalent of employees wearing back braces as a preventative measure, and that awarding benefits to the claimant in this case would mean all employees wearing back braces are eligible for workers’ compensation benefits.
The JCC found that the need for the wrist brace was caused by surgery and Dr. Coren’s attempt to return the claimant to some type of work. The JCC noted Dr. Coren’s testimony that if the claimant did not wear the wrist brace at work, he would not have released him to return to work. The JCC also found that Dr. Coren’s prescription for a wrist brace was made in order to avoid further injury to the surgically repaired tendon in the elbow, due to the potential for overuse of the wrist caused by the demands of the claimant’s work as a mechanic. The JCC found Dr. Coren’s instruction to the claimant to wear a wrist brace was a work limitation or restriction.
Additionally, the JCC found the restrictions placed on the claimant by Dr. Coren resulted in the Employer reducing his hours and putting him in a job that paid less than his regular job as a mechanic. The JCC found the claimant met his burden to connect loss of income with the compensable injuries.
Zachary Wilson v. Cymply Fresh/Hartford Underwriters
JCC Hill; Gainesville District; Order Date: June 22, 2016
OJCC Case: 16-000840MRH; D/A: 7/28/2015
Claimant’s Counsel: Matthew Carrillo
Employer/Carrier’s Counsel: Bruce Eppel
Briefly: TEMPORARY PARTIAL DISABILITY BENEFITS – JCC Hill denied the claim for temporary partial disability benefits and found the claimant voluntarily limited his income by unreasonably rejecting offered work, and for failing to even look for work during the period of time for which temporary partial disability benefits were sought.
Summary: The JCC found the Employer offered the claimant light duty work sitting on a stool to operate a cash register, and sweeping. The JCC also found the claimant refused this work because he did not believe he could physically do the work because of issues with his temper. The JCC found the claimant’s refusal of the offered employment was not justified and that the work was within his light duty restrictions of no lifting more than 25 pounds. The JCC also found the claimant did not seek work until months later, but the evidence was unclear as to when he actually began looking for work, the type of work he sought, or how long it took him to find work.
John Mendez v. Lopez Tire & Auto Repair, Inc.
JCC Almeyda; Miami District; Order Date: June 22, 2016
OJCC Case: 15-029447ERA; D/A: 11/20/2015
Claimant’s Counsel: Ricardo Morales
Employer/Carrier’s Counsel: Alexander Almazan
Briefly: NO ACCIDENT – JCC Almeyda found the events as testified by the claimant, describing the alleged industrial accident and surrounding circumstances, did not happen and that claimant’s testimony was not credible.
Summary: The JCC noted this case came down to a matter of credibility of the witnesses, especially that of the claimant. The JCC found the claimant was not credible and that there was no evidence to corroborate the claimant’s version of events.
Instead, the JCC accepted testimony of the co-employees who all consistently describe events on the alleged date of accident which did not include an accident as described in minute detail by the claimant. For instance, the JCC found the claimant’s allegations of hospital admission on the alleged date of accident was not corroborated by the hospital records. Rather, the factual scenario as testified to by the co-employees was supported by hospital records, which did not include an admission on the date of accident.
Eduardo Ramos v. Maoz Vegetarian/Associated Industries Insurance Company
JCC Rosen; West Palm Beach District; Order Date: June 22, 2016
OJCC Case: 16-009015TMB; D/A: 3/6/2016
Claimant’s Counsel: Mark Zientz
Employer/Carrier’s Counsel: Andrew R. Borah
Briefly: MOTION TO DISMISS FOR LACK OF SPECIFICITY – JCC Rosen granted the Employer/Carrier’s Motion to Dismiss and found the Petition for Benefits requesting attendant care lacked the required specificity.
Summary: In the response to the Employer/Carrier’s Motion to Dismiss the Petition for attendant care benefits, the claimant admits the Petition requested attendant care benefits retroactively and was filed without a written prescription. The claimant argued that an exception to attaching a medical prescription arises if the employee can prove the claimant’s failure to provide a written prescription is the result of the Employer/Carrier’s willful ignorance. The JCC noted the claimant brought no witnesses to support this allegation and found there was no willful ignorance on the part of the Employer/Carrier.
The JCC also found that F.S. §440.192(2)(i) requires supporting documentation of medically-recommended attendant care to accompany a Petition for Benefits claiming same. The JCC reviewed the four corners of the Petition itself and found the claimant did not comply with the requirements of the statute whether the claim for attendant care is retroactive or prospective, or both.
John DeHart v. United Insurance Company of America/Travelers Insurance
JCC Lorenzen; Tampa District; Order Date: June 23, 2016
OJCC Case: 13-017247EHL, 13-017264EHL, 13-017269EHL; D/A: 3/14/2013, 2/7/2013
Claimant’s Counsel: Laurie Miles
Employer/Carrier’s Counsel: Donald Kaelber
Briefly: ONE-TIME CHANGE – JCC Lorenzen ordered the Employer/Carrier shall authorize a new physician to provide medical care for the claimant’s compensable back injury, but not to be considered as a one-time change of physicians. The JCC concluded that a carrier cannot require an injured employee to agree to a one-time change of physicians when the authorized physician declines to treat any longer.
Summary: The Employer/Carrier conceded at the final hearing that the claimant never made a request, written or otherwise, for a one-time change in physicians. However, the Employer/Carrier argued the claimant agreed to a one-time change when he did not object to prior defense counsel’s use of the phrase “one-time change” in an email exchange. Claimant’s position was the carrier agreed to authorize another doctor because the initial doctor would no longer agree to treat the claimant and the use of the phrase “one-time change” was taken out of context by the Employer/Carrier’s counsel.
The JCC agreed with the claimant and found the initial authorized physician did discharge the claimant from his care and that claimant’s Petition for Benefits plainly asked for authorization of a new doctor because the prior authorized doctor refused to see him for continued follow-up.
The JCC found the carrier cannot use the failure of an injured employee to object to its use of the phrase “one-time change” as evidence of either a written request for a one-time change or an agreement that the new doctor being offered would be the employee’s one-time change.
Danny Cox v. Emergency One, Inc./Travelers Insurance
JCC Hill; Gainesville District; Order Date: June 23, 2016
OJCC Case: 15-009362MRH; D/A: 2/12/2015
Claimant’s Counsel: Barbara Richard
Employer/Carrier’s Counsel: Justin Crum
Briefly: ATTORNEY’S FEE – JCC Hill awarded $250 in attorney’s fees, based on one hour of attorney time at a rate of $250 per hour, for preparing and filing a Motion to Compel.
Summary: It was uncontested that the claimant was entitled to attorney’s fees for prevailing on a Motion to Compel. Claimant’s counsel initially requested 7.2 attorney hours at a rate between $250-350 per hour. The Verified Fee Petition was denied in all of the respects.
Daniel Ruiz v. All Florida Brick Corp./Bridgefield Employers Insurance Company, Summit
JCC Medina-Shore; Miami District; Order Date: June 23, 2016
OJCC Case: 15-024327SMS; D/A: 10/9/2015
Claimant’s Counsel: Ivan P. Morales
Employer/Carrier’s Counsel: Kurt Wirsing
Briefly: AVERAGE WEEKLY WAGE – JCC Medina-Shore granted the adjustment in the average weekly wage and accepted the claimant’s testimony over the Employer representative with regard to the number of hours worked prior to the injury.
Summary: The JCC rejected the Employer representative’s testimony and found him to be unconvincing, self-servicing, and not believable. The Employer representative testified that claimant received $300 a week flat rate, no matter the job description, but he could not recall whether the claimant worked Saturdays. On the other hand, the JCC found the claimant’s testimony was credible and that he worked 5-6 days a week earning $100 per day. The claimant’s testimony was corroborated by the claimant’s family member.
Michael N. Psoinos v. Kone Elevator/Old Republic Insurance Company
JCC Beck; Sarasota District; Order Date: June 23, 2016
OJCC Case: 15-021532DBB; D/A: 6/19/2015
Claimant’s Counsel: Jason R. Kobal
Employer/Carrier’s Counsel: Ya’Sheaka Campbell Williams and Wesley J. Heim
Briefly: COMPENSABILITY; DAUBERT; NOTICE OF INJURY – JCC Beck found the claimant’s injury to his right foot was timely reported and is compensable and awarded medical and indemnity disability benefits as support by the admissible medical evidence.
Summary: The claimant missed no work with the Employer between the accident and the date of termination and did not seek worker’s compensation benefits during that time. However, the JCC found the claimant’s injury was timely reported and noted the claimant’s supervisor witnessed the claimant’s accident and that the claimant had a face-to-face conversation with his supervisor at his termination hearing, less than 30 days from the date of accident, when the claimant stated he was hurt at work.
The JCC overruled the Employer/Carrier’s Daubert objection to admission of the opinions of the claimant’s IME physician, Dr. Shandles, and found that Dr. Shandles’ testimony was the product of reliable principles and methods and that the doctor applied these principles and methods reliably to the facts of the case. The JCC described how the doctor reviewed the records and conducted a lengthy examination of the claimant, and that the doctor testified he relied on the textbook which was the standard curriculum for this type of injury. The JCC also noted that the doctor confirmed the physical findings by use of the ultrasound which he described as being an accurate medium for fifty years.
Despite several serious prior injuries to the claimant’s foot and ankle, the JCC found the claimant established through objective, relevant medical evidence that the industrial accident was the major contributing cause of his right foot injury, need for treatment, and disability. The JCC accepted the opinions of the claimant’s IME physician in their entirety.
Nidia Padilla v. State of Florida-DOC-Tamoka Cl/Division of Risk Management
JCC Anderson; Daytona Beach District; Order Date: June 23, 2016
OJCC Case: 15-026437WWA; D/A: 10/25/2015
Claimant’s Counsel: Kristine Callagy
Employer/Carrier’s Counsel: Sharon W. Hendon
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Anderson found the claimant’s hypertension is compensable pursuant to the presumption under F.S. §112.18.
Summary: The JCC found the claimant is entitled to the presumption under F.S. §112.18 and satisfied each of the four elements as follows: (1) The JCC found the claimant is a member of a protected class, a corrections officer; (2) The JCC found the claimant suffers from one of the conditions within the scope of the presumption, that being hypertension; (3) Likewise, the JCC found the pre-employment physical examination did not reveal evidence of hypertension; and (4) The JCC found the covered condition resulted in disability in that the Urgent Care physician took the claimant off of work for several days due to the hypertension condition. The JCC also found the Employer/Carrier failed to offer any evidence to rebut the presumption.