FL Case Law Summaries – 6/30/16
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JCC ORDERS
David W. Buerki v. WW Pallet, Inc./AmTrust North America of Florida
JCC Lorenzen; Tampa District; Order Date: June 27, 2016
OJCC Case: 15-022800EHL; D/A: 5/26/2015
Claimant’s Counsel: Taylor Davidson and Torea Spohr
Employer/Carrier’s Counsel: Gregory White
Briefly: MAJOR CONTRIBUTING CAUSE; 120-DAY RULE – JCC Lorenzen awarded the requested surgery to correct the claimant’s right-sided hydrocele and found there was no need for the claimant to prove the accident remained the major contributing cause and need for additional care because the claimant never had any medical care, disability, or impairment associated with the hydrocele before the accident and there was never more than one cause of the need for surgery. The JCC also found the Employer/Carrier failed to prove a break in the causal chain between the compensable condition of the claimant’s right testicle and the need for surgery. Additionally, the JCC found the payment of TPD benefits is not a triggering event to invoke F. S. 440.20(4).
Summary: The Employer/Carrier asserted it never accepted the claimant’s hydrocele as compensable because it never provided any treatment for that condition. The JCC rejected this position and found the Employer/Carrier authorized treatment for claimant’s hydrocele as evidenced by its payment records, including payment for treatment, examination of claimant’s testicles and authorization of an ultrasound. The JCC concluded that, as a matter of law, the Employer/Carrier accepted compensability of the claimant’s hydrocele, as well as his low back strain and hernia, when it authorized clinical examination and diagnostic testing for that condition.
The JCC also found the claimant never had any medical care, disability, or impairment associated with the hydrocele before the accident and, therefore, the claimant had no need to prove the accident remained the major contributing cause of the need for additional medical care. Further, the JCC noted there was never more than one cause of the need for surgery.
Additionally, even if there had been an issue of major contributing cause, the burden of proof rested on the Employer/Carrier to prove a break in the causal chain between the compensable condition and the claimant’s right testicle and the need for surgery. The JCC found the Employer/Carrier failed to meet that burden.
The JCC also found, by the plain language of F. S. §440.20(4), there was no statutory time limit in which the Employer/Carrier had to deny initial compensability of claimant’s hydrocele or lose the right to do so because the triggering event, the payment of compensation for total disability, including TTD or PTD, never happened. The JCC found the payment of TPD benefits is not a triggering event to invoke F. S. 440.20(4).
Jaime R. Vallejo v. Proietto Painting/Summit
JCC Kerr; Miami District; Order Date: June 27, 2016
OJCC Case: 15-029771MGK; D/A: 11/18/2015
Claimant’s Counsel: Grethel San Miguel-Callejas
Employer/Carrier’s Counsel: David Rigell
Briefly: TEMPORARY DISABILITY – JCC Kerr both awarded and denied temporary disability benefits and found the claimant abandoned his job after a three day no-call/no-show period.
Summary: The JCC concluded the claimant was not entitled to temporary partial disability benefits from the date he failed to advise the Employer he had been released to light duty through the date of his termination and continuing, until he underwent surgery. In making his finding, the JCC also found the claimant was aware of his obligation to call his Employer and failed to do so, thus abandoning his job after a three-day no-call/no-show. The JCC found the claimant was a very poor historian and frequently confused answers regarding the timeline after his accident and the identity of whom he spoke to for what reason.
The JCC also found that, while failure to present for light-duty work made available to him by his Employer is a bar to receiving benefits, it is not a bar for an indefinite time period. The JCC found the surgery performed by Dr. Keyes is an intervening incident which serves to interrupt the status quo of the benefit entitlement. Therefore, the claimant was entitled to temporary disability benefits following the surgery.
Gary Thomas Munsell v. Golden State Foods Corp./Travelers Insurance
JCC Hill; Gainesville District; Order Date: June 28, 2016
OJCC Case: 16-001603MRH; D/A: 6/28/2015
Claimant’s Counsel: Douglas Bond
Employer/Carrier’s Counsel: Joshua Day
Briefly: TRANSFER OF CARE PER F.S. §440.13(2)(d) – JCC Hill denied the Employer/Carrier’s transfer of care and unilateral de-authorization of Dr. Vlasak and rejected the Employer/Carrier’s assertion that claimant did not make appropriate progress with physical therapy.
Summary: The Employer/Carrier unilaterally de-authorized Dr. Vlasak pursuant to F.S. §440.13(2)(d), which allows the Employer/Carrier to de-authorize a health care provider and transfer care without prior JCC approval based solely on an opinion of an IME physician that the employee is not making appropriate progress in recuperation. The JCC cited case law authority indicating the JCC retains the authority to determine, after the fact, whether de-authorization was in the claimant’s best interests in terms of the continuing need for medical services.
Here, the JCC noted the Employer/Carrier’s sole basis for de-authorization of Dr. Vlasak was that the claimant did not make appropriate progress with physical therapy as recommended. The JCC rejected the testimony of the Employer/Carrier’s IME physician, Dr. Friedman, who opined the claimant was not making appropriate progress under Dr. Vlasak’s care. The JCC relied on the claimant’s testimony that he has progressed with therapy due to the techniques used by the new physical therapy provider, who works with him one-on-one and provides instruction. The JCC could not find that the transfer of care away from Dr. Vlasak was in the claimant’s best interests.
Earl Wright v. Osceola County/OptaComp
JCC Pitts; Orlando District; Order Date: June 28, 2016
OJCC Case: 15-012319NPP; D/A: 1/10/2014
Claimant’s Counsel: Michael P. Clelland
Employer/Carrier’s Counsel: Michael Broussard
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Pitts denied the claim for compensability of claimant’s heart disease and hypertension under the presumption afforded by F.S. §112.18 and found the claimant did not establish a disability from the claimed condition.
Summary: The JCC evaluated the four elements required to invoke the presumption under F.S. §112.18 and found the claimant passed a pre-employment physical examination, that the claimant is a member of one of the protected classes, and the claimant suffers from heart disease, a covered condition. However, the JCC found the claimant did not establish that he suffered a disability from the claimed condition and, therefore, the presumption did not apply.
The JCC noted the claimant was medically restricted from working as a firefighter by a physician at Urgent Care until he could be seen by a cardiologist. However, the JCC also noted there was no medical testimony that this restriction was reasonable pending the evaluation by a cardiologist and related to his heart disease. The JCC also noted that Dr. Kakaar placed the claimant on restricted duty including no heavy physical work including fighting fires, but found there was no medical testimony that retroactively applied this work restriction back to the date of accident in this case.
The JCC also noted the claimant made an ore tenus motion that the date of accident be amended to conform to the evidence. The JCC denied the motion and found that no disability was established for the date of accident of January 10, 2014, and this was the date which the Employer/Carrier defended the claim on. The JCC concluded he could not amend the date of accident pled in a Petition for Benefits without prejudicing the rights of the Employer/Carrier.
Victoria Rosso v. AT&T Corp., AT&T Communications/Sedgwick CMS
JCC Hogan; Ft. Lauderdale District; Order Date: June 28, 2016
OJCC Case: 02-053101GBH; D/A: 2/10/1989
Claimant’s Counsel: Richard B. Berman
Employer/Carrier’s Counsel: Thaddeus A. Harrell and Cheryl L. Wilke
Briefly: HOME RENOVATIONS; ATTENDANT CARE; LAWN SERVICE – JCC Hogan denied the claim for home renovations, but granted the claim for attendant care and lawn service pursuant to the opinions of Dr. Gayles, the authorized pain management physician, and Dr. Mortenesen, the authorized psychologist.
Summary: The JCC denied the claim for home renovations, including ramp access in all exit/entry areas, outdoor motion sensor lighting, kitchen pull-down shelves and slide-out drawers, a kitchen stove with controls on front, widening the doorways to allow mobility for a scooter/wheelchair, smooth flooring, an ADA-approved handicapped commode with side bars, portable bidet, and wheelchair-accessible vanity, and found the evidence did not support a finding that these claims are medically necessary. The JCC noted that the need for these benefits was not clearly established based upon the totality of medical evidence.
The JCC awarded attendant care benefits pursuant to the testimony of Dr. Gayles, the authorized pain management physician, and found attendant care was medically necessary for at least four hours a day to assist the claimant with showering, bathing, dressing, laundry, grocery shopping, meal prep, long distance transportation, and house cleaning. The JCC also found the claimant’s treating psychologist, Dr. Mortensen, testified that having assistance with keeping her home clean would help the claimant improve her compensable depression and anxiety conditions.
The JCC also awarded the claim for lawn service based upon the opinion of psychologist Dr. Mortensen, that the claimant’s inability to maintain her yard makes her feel depressed and anxious. The JCC noted that Dr. Mortenesen opined that if the claimant received help maintaining her yard, her issues with depression, anxiety, and low self-esteem would improve. The JCC distinguished the facts of the present case from the case law authority submitted by the Employer/Carrier reflecting that lawn care service is not medically necessary.