FL Case Law Summaries – 6/8/16
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JCC ORDERS
Maria Delgado v. Spherion Staffing, LLC/Sedgwick CMS
JCC Medina-Shore; Miami District; Order Date: June 2, 2016
OJCC Case: 11-015402SMS; D/A: 6/18/2011
Claimant’s Counsel: Bobby Wells
Employer/Carrier’s Counsel: Andrew Borah
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Medina-Shore denied the claim for follow-up medical treatment, including an appointment with the authorized pain management physician and prescription medications, and found the claimant’s compensable lumbar strain had resolved and is no longer the major contributing cause for the need for additional medical treatment.
Summary: The Employer/Carrier accepted compensability of the claimant’s low back sprain and provided the claimant with authorized treatment including diagnostic studies and authorized medical treatment with an orthopedic physician. The claimant was also provided with authorized pain management treatment including epidural injections.
The JCC found that, while the Employer/Carrier accepted compensability of the claimant’s back injury, it does not mean the Employer/Carrier cannot contest entitlement to benefits and, in doing so, the Employer/Carrier has the burden to prove the industrial accident is no longer the major contributing cause for the claimant’s need for medical treatment. In this case, the JCC found the Employer/Carrier has proven, based on medical evidence, that the claimant’s compensable lumbar sprain is no longer the major contributing cause of the claimed medical treatment. Further, the JCC found the claimant failed to establish the medical necessity of pain management treatment as it relates to the compensable lumbar sprain.
The claimant argued the Employer/Carrier cannot demonstrate a break in the causal chain as required by Cespedes v. Yellow Transportation, Inc., 130 So. 3d 243 (Fla. 1st DCA 2013) as there is no evidence of a pre-existing condition or a subsequent accident. The JCC rejected this argument for two reasons. First, the JCC found the claimant’s lumbar degenerative disk disease which the authorized treating physician believes is the current cause of the claimant’s subjective symptoms can be classified as either a pre-existing or subsequent condition that would break the causal chain. Second, the JCC found that in order to demonstrate a break in the causal chain, the Employer/Carrier is not limited to merely showing a pre-existing condition or a subsequent accident. There are other ways of showing a break in the causal chain such as when a non-permanent industrial injury completely resolves.
Here, the JCC found the authorized treating physician diagnosed the claimant with a low back strain which had completely resolved. The JCC emphasized that the mere occurrence of a compensable injury does not guarantee an injured worker to receive medical care for life. The injured worker remains so entitled for only as long as the compensable injury continues to cause the need for additional treatment.
Andrew Stancil v. Right Hand Man/ESIS WC Claims
JCC Massey; Tampa District; Order Date: June 2, 2016
OJCC Case: 09-010898MAM; D/A: 4/18/2009
Claimant’s Counsel: Michael Winer
Employer/Carrier’s Counsel: Derrick Cox
Briefly: GUARDIANSHIP ATTORNEY’S FEES – JCC Massey denied the claim for payment of guardian’s attorney’s fees and found that establishing or maintaining a guardianship serves many purposes in addition to enabling or allowing the handling of claimant’s rights, duties, or responsibilities under Chapter 440.
Summary: The JCC found the claimant was catastrophically injured in a compensable accident and due to his incapacity, claimant’s sister was appointed as plenary guardian of claimant’s person and property. Claimant’s guardian retained a law firm for the purpose of preparing and filing a required annual report of the guardian.
The JCC found that F.S. §440.34, under which fees are payable only based on benefits secured, is not applicable to these circumstances and cannot form the basis of an attorney’s fee award. Instead, F.S. §440.17 and applicable case law controls whether or not guardianship fees and expenses are payable by the workers’ compensation carrier.
The JCC found there was a lack of competent substantial evidence to demonstrate that services performed by the guardian’s law firm were incurred as a result of handling the claimant’s rights, duties, and responsibilities under Chapter 440. The JCC found that the guardian’s attorney performs many functions on behalf of the claimant that are wholly unrelated to Chapter 440 as evidenced by the attorney’s time records and testimony at trial.
The JCC found the reimbursement sought by the claimant is prohibited by the case of Southeast Concrete Floor v. Charlton, 584 So. 2d 574 (Fla. 1st DCA 1991), where the court specifically addressed guardianship fees and expenses and found they are awardable only to the extent they are incurred in and about the handling of the claimant/ward’s rights, duties, and responsibilities under Chapter 440, including, but not limited, to such activities as the collection of benefits under Chapter 440, obtaining medical services for the claimant, and representation of the claimant in proceedings before the Judge of Compensation Claims.
Manuel Moscoso v. City of Tampa Fire Rescue/Commercial Risk Management, Inc.
JCC Massey; Tampa District; Order Date: June 2, 2016
OJCC Case: 12-005667MAM; D/A: 10/2/2011
Claimant’s Counsel: Tonya A. Oliver
Employer/Carrier’s Counsel: L. Gray Sanders
Briefly: ATTORNEY’S FEES – JCC Massey awarded an attorney’s fee in the amount of $10,560 based on an hourly attorney rate of $275 per hour and noted a guideline fee in this case would yield an hourly rate of $59.75, which would be manifestly unfair and unreasonable.
Summary: The JCC noted this case involved a total denial of compensability under the heart/lung presumption contained in F.S. §112.18. Although the JCC found this claim was not particularly novel or complex, the JCC also found the nature of presumption cases and the sometime tricky medical issues involved require a higher than average level of skill to navigate properly.
The JCC’s order amended a prior order dated May 20, 2016, denying attorney’s fees.
Pedro Luis Maldonado v. Diamond Resort International/Liberty Mutual Insurance
JCC Pitts; Orlando District; Order Date: June 2, 2016
OJCC Case: 15-024149NPP; D/A: 9/4/2015
Claimant’s Counsel: Kristhina H. Vargas & Dale Albright
Employer/Carrier’s Counsel: Christopher Frump & Sean McBride
Briefly: MISREPRESENTATION DEFENSE – JCC Pitts denied the misrepresentation defense and accepted the claimant’s testimony as believable that he experienced a slip and fall during the course and scope of his employment.
Summary: The JCC noted the inconsistent testimony of a witness who admitted at trial that his prior statements regarding the mechanism of injury were untruthful. The witness, a coworker, initially completed a voluntary statement form stating he heard the claimant yelling for help and found the claimant on the floor and that the claimant told him he had fallen down the stairs. In a second voluntary statement, the same witness indicated the claimant did not fall because he reached out and grabbed him, preventing the fall. At the hearing, the witness testified that his initial report was not truthful but he prepared it because he “felt sorry” for the claimant.
The JCC accepted the claimant’s testimony over that of the witness and found the Employer/Carrier did not meet its burden of proof by a preponderance of evidence that the claimant knowingly or intentionally engaged in misrepresentation prohibited by the statute.
Deborah Johnson v. ACTS Retirement-Life Communities, Inc./Liberty Insurance Corporation
JCC Winn; Pensacola District; Order Date: June 2, 2016
OJCC Case: 15-029827NSW; D/A: 10/16/2015
Claimant’s Counsel: Thomas Condon
Employer/Carrier’s Counsel: Mark Ingram
Briefly: COMPENSABILITY; IDIOPATHIC CONDITION – JCC Winn denied compensability of the claimant’s injuries and found the claimant’s pre-existing arthritis and obesity were the major contributing cause of the left knee injury and the need for treatment.
Summary: While working for the Employer in the course and scope of employment, the claimant was walking up a flight of stairs when her left knee “popped”. The Employer/Carrier’s IME physician diagnosed claimant as suffering from severe medial compartment arthritis of the left knee, marked elevated body mass index, hypertension, and asthma. It was his opinion that 97% of the cause of the claimant’s left knee injury was her pre-existing “severe medial compartment degenerative joint disease” and her obesity.
The JCC found the claimant offered no admissible medical opinion from an authorized provider, IME, or Expert Medical Advisor, establishing compensability. Further, the JCC found that the offered medical opinion of Dr. Dejong was not admissible under the self-help provisions of Chapter 440.13(2)(c).
The JCC relied on the case of Ross v. Charlotte County Public Schools, 100 So. 3d 781 (Fla. 1st DCA 2012) and found the burden shifted back to the claimant to show an increased risk associated with her employment in order to establish a causal connection between her employment and the accident. The JCC found the claimant failed to present any evidence of an increased risk of harm associated with her employment and that the claimant failed to carry her burden of proof.
Anthony Giaimo v. Florida Auto Sport, Inc. d/b/a Kia Auto Sports/Summit
JCC Lazzara; Tallahassee District; Order Date: June 2, 2016
OJCC Case: 10-025777JJL; D/A: 4/12/2010
Claimant’s Counsel: Paul M. Anderson
Employer/Carrier’s Counsel: M. Kemmerly Thomas
Briefly: EXPERT MEDICAL ADVISOR – JCC Lazzara found there was no disagreement in medical opinions regarding recommendations for lumbar surgery and no need for an appointment of an Expert Medical Advisor.
Summary: The JCC found that on the day of the final hearing, the Employer/Carrier filed a renewed motion for EMA based on the newly released medical report of Dr. Robert Joseph, claimant’s authorized treating pain management provider. The motion indicated the claimant told Dr. Joseph he does not “want surgery under any circumstances”. At the trial, the claimant testified to the contrary and denied he told Dr. Joseph he “didn’t want surgery”. The claimant testified he continues to experience constant low back and leg pain and that the level has not changed in spite of medications prescribed by Dr. Joseph.
The JCC found that Dr. Joseph’s opinions in regard to the recommended surgery lack a factual foundation and must be rejected. Further, the JCC found that Dr. Joseph did not outright reject lumbar surgery as an option, but that only the claimant should be further evaluated before undergoing the surgical procedure. The JCC found that Dr. Joseph’s medical opinions are not sufficiently credible or consistent with logic and reason to perform the basis of a disagreement with the opinions of Dr. Lee, therefore the renewed motion for EMA was denied.
The JCC awarded the recommended lumbar surgery.
Bryan Costanza v. Landry’s Seafood/AIG Property Casualty and Corvel Corporation
JCC Hogan; Ft. Lauderdale District; Order Date: June 2, 2016
OJCC Case: 15-006526GBH; D/A: 10/20/2014
Claimant’s Counsel: Brian Dowling
Employer/Carrier’s Counsel: Gregory Forsythe
Briefly: FAILURE TO UNDERGO DRUG TEST – JCC Hogan denied compensability of the claim and found claimant refused to submit to a drug test pursuant to F.S. §440.09(7)(a) and (c).
Summary: The JCC cited F.S. §440.09(7)(c)(2013) stating that “ If the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was occasioned primarily by the influence of drugs”.
The JCC found the evidence supported the finding that claimant refused to submit to a drug test by waiting ten days from the date of accident to undergo the drug test.
The JCC noted that although it is possible the accident was not caused by the claimant’s admitted use of marijuana, the evidence did not cause her to have a firm belief or conviction, without hesitancy, that the injury was not caused primarily by the influence of drugs, sufficient to establish clear and convincing evidence to rebut the presumption.
Consistent with her findings, the JCC explained that on the date of accident, the claimant slipped and fell on the floor while carrying a stack of plates. The plates fell on his hand and he sustained a severe laceration and hand injury. The claimant believed there was grease on the floor because it was improperly cleaned by the person working in the pantry area. However, the claimant did not indicate that the method used to clean the floor on the night of his accident was different from the method used previously.