FL Case Law Summaries – 6/28/16
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1ST DCA ORDERS
Deborah Evans v. Holland & Knight/Sentry Insurance
Appeal of the Order from JCC Lorenzen
DCA Order Date: June 24, 2016
Case: 1D15-4080; D/A: 2/3/2015
Appellant’s Counsel: Bill McCabe and John H. Thompson
Appellee’s Counsel: William H. Rogner
Briefly: GOING AND COMING RULE – The 1st DCA affirmed JCC Lorenzen’s order denying compensability of the injury under the “going and coming rule” and finding that claimant’s accident did not occur on the Employer’s premises and that the accident was not caused by a special hazard.
Summary: The injury occurred when the claimant stepped on a metal plate and fell in the parking garage where she parked using a parking pass provided by the Employer. The JCC denied compensability under the going and coming rule and found the exceptions to the going and coming rule do not apply.
The 1st DCA agreed and explained there are two exceptions to the going and coming rule: 1) The “premises rule” whereby an injury sustained by an employee who is injured while going to or coming from work is in the course of employment if the injury occurred on the Employer’s premises; and 2) An accident is compensable if it is caused by a “special hazard” on the normal and customary route used by the employee as a means of entry and exit to the employee’s place of work.
Here, the JCC concluded she could not find that the hazard in the parking garage existed on an access route in close association with claimant’s workplace premises.
The concurring opinion noted the Employer did not own, lease, maintain, or operate the parking garage or any space therein. The claimant chose the access path, which merely granted her access to parking on a first-come, first-serve basis. The Employer never instructed its employees to take a specific route from the parking garage to the office.
JCC ORDERS
James King v. Southwest Airlines/Sedgwick CMS-SWA
JCC Sculco; Orlando District; Order Date: June 24, 2016
OJCC Case: 11-017826TWS; D/A: 5/19/2011
Claimant’s Counsel: Michael MacDonald
Employer/Carrier’s Counsel: Ronald P. Greninger
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Sculco granted the claim for a pain management specialist and denied the Employer/Carrier’s defense that the need for pain management was due to a subsequent, intervening auto accident.
Summary: By agreement of the parties, the court appointed Dr. Michael Broom, orthopedic surgeon, as a court-appointed IME to address whether there is any causal connection between the claimant’s medically necessary pain management and the compensable accident, in light of the claimant’s injuries in the two subsequent, non-work related auto accidents. By agreement of the parties and order of the court, Dr. Broom’s medical opinions carried the same presumption of correctness as an Expert Medical Advisor. Dr. Broom evaluated the claimant and opined that, assuming pain management was medically necessary, more than 50% of the need for pain management is due to the original work injury.
The JCC explained that the major contributing cause standard does not apply to all situations where an employee suffers a non-work related injury subsequent to a compensable work injury. The JCC stated “Section §440.09(1)(a) only provides a major contributing cause test where an employee suffers a subsequent injury as a result of an original compensable injury”.
In this case, the JCC found the major contributing cause test does not apply and the claimant’s burden of proof is to establish that the work injury is a “contributing, competent, aggravating, or accelerating” cause of the need for the claimed benefits. The JCC found there was no clear and convincing evidence to reject Dr. Broom’s opinion that the original injury is not only a contributing cause for the need for pain management, but that it is the major contributing cause. Further, the JCC found the Employer/Carrier did not establish that the subsequent auto accidents broke the causal chain. The JCC found it was clear the claimant was still suffering from the effects of the original injury when subsequent auto accidents occurred.
Henry Diaz v. Palmetto General Hospital/Sedgwick CMS
JCC Kerr; Miami District; Order Date: June 24, 2016
OJCC Case: 11-002425GCC; D/A: 5/10/2010
Claimant’s Counsel: Martha Fornaris
Employer/Carrier’s Counsel: Cindy R. Galen
Briefly: ATTORNEY’S FEES – JCC awarded the claimant $42,000.00 in a reasonable, hourly attorney’s fees and found that claimant spent 120 hours pursuing benefits in the amount of $8,956.44. (The JCC did not set forth the hourly rate in the contents of the Order. However, $42,000 divided by 120 hours of attorney time results in a $350 per hour rate).
Elouise Booker v. Honeywell/Sedgwick CMS
JCC Rosen; St. Petersburg District; Order Date: June 24, 2016
OJCC Case: 14-000325SLR; D/A: 5/20/1992
Claimant’s Counsel: John H. Thompson
Employer/Carrier’s Counsel: Bruno DeZayas
Briefly: ATTORNEY’S FEES – JCC Rosen ordered $25,000 to be paid as claimant’s attorney’s fees, based upon 45 hours of attorney time for securing approximately $93,000 in benefits. The JCC found there was no hourly rate used as a guideline for determination of a reasonable fee and explained there was no hourly rate requested by the attorney for the claimant, nor was there an hourly fee established through pleadings from the Employer/Carrier. (The JCC did not set forth the hourly rate in the contents of the Order. However, $25,000 divided by 45 hours of attorney time results in a $555.55 per hour rate.)
Summary: The JCC noted the evidence did not provide an alternative method for determination of a reasonable fee for the claimant’s attorney. The JCC emphasized that no response to the claimant’s verified petition for attorney’s fees and costs was filed by the Employer/Carrier.
Beverly Mathis v. Broward County School Board
JCC Forte; Ft. Lauderdale District; Order Date: June 24, 2016
OJCC Case: 15-006130IF; D/A: 3/2/2015
Claimant’s Counsel: David S. Benn
Employer/Carrier’s Counsel: Michael J. Fichtel and Jessica Marra
Briefly: MAJOR CONTRIBUTING CAUSE; COMPENSABILITY – JCC Forte denied compensability of the claim and found, based on the medical evidence, the injury could not have occurred on the date of accident as the claimant originally reported.
Summary: The JCC found the claimant failed to meet her burden of proof that whatever she stepped on that caused a puncture to her right foot occurred in the course and scope of her employment or arose out of her employment. The claimant testified she felt something sharp go through her sneaker at work and that she looked at her shoe on the day of the incident to locate or identify an object went through her shoe but found or felt nothing. The JCC noted the treating physician, Dr. Kerr, informed the claimant that due to the advanced stage of her infection, the accident could not have occurred on the date of accident as she alleged. The JCC found the claimant’s link between the employment and this incident was that she only wears sneakers to work.
The JCC found the claimant’s testimony was too inconsistent to accept as reliable and that the totality of the evidence points to the fact that the injury could have happened anywhere.