FL Case Law Summaries – 6/3/16
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JCC ORDERS
Marie Laurore v. Aimbridge Hospitality LP/Zurich American Insurance Company
JCC Lorenzen; Tampa District; Order Date: May 31, 2016
OJCC Case: 15-025498EHL; D/A: 4/26/2015
Claimant’s Counsel: Nicolette Tsambis
Employer’s Counsel: Peter Fowler
Briefly: MISREPRESENTATION – JCC Lorenzen denied the Employer/Carrier’s misrepresentation defense and found the claimant did not knowingly attempt to mislead the Employer/Carrier about a prior accident or injury when she denied her prior motor vehicle accident at deposition.
Summary: The Employer/Carrier alleged the claimant misrepresented her prior medical history by failing to reveal she had motor vehicle accidents in 2001, 2005, and 2014. To prove its defense, the Employer/Carrier provided testimony of the adjuster and records from two automobile accidents. The adjuster testified she contacted the claimant to secure information about the accident, but was unable to provide the exact questions she asked during the conversation. The JCC also noted the adjuster was not able to communicate directly with the claimant because the claimant spoke only Creole. Instead, the adjuster spoke with the claimant’s son who spoke Creole and English.
The JCC found that relying on unsworn oral statements for proof of misrepresentation is problematic but the problem was made worse in this case by the fact that the statements made were actually the statements of the claimant’s son who may or may not have had the skills to interpret both the questions and answers correctly and accurately. Additionally, the Employer/Carrier offered no evidence regarding the alleged 2001 motor vehicle accident and the claimant testified the 2014 accident involved only property damage to her vehicle.
The JCC found the records from the 2005 accident were records from chiropractic care the claimant received for her neck and low back injuries for about three months. The JCC found that the scant records about the types of injuries the claimant suffered in 2005 were not so significant that they would cause long-lasting complaints, impairment, work restrictions, or disability. Additionally, the JCC found the accident of 2005 had no characteristics or features that were so memorable that a reasonable person could not forget the accident in ten years time. The JCC accepted the claimant’s testimony at final hearing that she did not recall the motor vehicle accident of 2005 at the time she testified at deposition and found the claimant did not knowingly attempt to mislead the Employer/Carrier about the prior automobile accidents.
Jessica Marchese v. Springbrook Hospital/Bridgefield Employers Insurance Company
JCC Massey; Tampa District; Order Date: June 1, 2016
OJCC Case: 14-009350MAM; D/A: 8/31/2013
Claimant’s Counsel: Jodi Ann Zakaria & Alfred Deutschman
Employer/Carrier’s Counsel: Tim Jesaitis
Briefly: MISREPRESENTATION DEFENSE – JCC Massey found the claimant forfeited her right to further benefits by operation of F.S. §440.09(4) and F.S. §440.105(4) when she deliberately made misleading and incomplete statements to her treating physicians by concealing her pregnancy for the purpose of continuing to receive morphine and other pain medications.
Summary: The JCC found the claimant purposefully and intentionally left the pregnancy questions blank on each of the four questionnaires she completed after finding out she was pregnant. The JCC found the claimant did so to intentionally conceal her pregnancy from the doctor in order to continue receiving morphine and other pain medications. The JCC believed this finding was supported by the fact that claimant completed 16 prior questionnaires and each time answered she was not pregnant; then suddenly, after finding out she was pregnant, claimant began leaving that particular question blank on each questionnaire. The JCC found this pattern was unmistakable and that there was no other logical or plausible explanation.
The JCC found the claimant offered no credible explanation for her omissions and that her explanations of “I don’t know” and “I don’t recall” were not credible. Further, the JCC found the claimant’s hysterical and belligerent reaction to the news she would be weaned off the medication indicated a strong desire to have her medication continued.
The JCC cited F.S. §440.105(4)(b)2, making it unlawful for any person to “present or cause to be presented any written or oral statement… knowing that such statement contains any false, incomplete, or misleading information…”. The JCC found the statements completed by the claimant were both “misleading” and “incomplete”.
Mai-Ling Gonzalez v. Florida Medical Center/Sedgwick CMS
JCC Lewis; Ft. Lauderdale District; Order Date: June 1, 2016
OJCC Case: 13-022495DAL; D/A: 4/8/2012
Claimant’s Counsel: Bram Gechtman
Employer/Carrier’s Counsel: Heather Hatch
Briefly: EX PARTE COMMUNICATIONS WITH HEALTH CARE PROVIDERS – JCC Lewis granted the claimant’s emergency motion to limit the Employer/Servicing Agent’s ex parte communications with health care providers and instructed the Employer/Servicing Agent and its representatives not to direct a treating physician on how to treat the claimant or what treatment to provide.
Summary: The claimant asserted she was prescribed narcotics from her authorized treating pain management physician, Dr. Vendryes, and that the Employer/Servicing Agent or its representatives conferred with Dr. Vendryes ex parte and directed Dr. Vendryes to modify or change his treatment regimen and to stop prescribing narcotic pain medication.
The claimant also challenged the constitutionality of F.S. §440.13(4)(c) which provides for ex parte communications by the healthcare providers or certain persons.
The JCC found that Dr. Vendryes testified the Servicing Agent’s nurse case manager gave him directives as to how he should treat the claimant. The JCC found this constituted an ex parte mini-trial with the deliberate undermining of a doctor-patient relationship. Consequently, the JCC limited the extent of ex parte discussions or communications with Dr. Vendryes and instructed the Employer/Servicing Agent or its representatives not to direct Dr. Vendryes as to how to treat the claimant or what treatment to provide.
The claimant requested additional relief including that she be given advance notice of the discussions or that same not be conducted on an ex parte basis. The JCC denied such relief at this time but stated if the Employer/Servicing Agent or its representatives fail to comply with the terms of this order, such relief may be granted, along with the imposition of other remedies or sanctions as deemed appropriate.