FL Case Law Summaries – 7/11/16
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1ST DCA ORDERS
THG Rentals & Sales of Clearwater, Inc./Summit Holdings – Claims Center v. James C. Arnold
Appeal of the Order from JCC Rosen
DCA Order Date: July 6, 2016
Case: 1D15-970; D/A: 8/6/2013
Appellant’s Counsel: H. George Kagan
Appellee’s Counsel: Bradley Guy Smith and Wendy Loquasto
Briefly: MISREPRESENTATION DEFENSE – On Motion for Rehearing, the 1st DCA withdrew their previous opinion and agreed with the Employer/Carrier that JCC Rosen too narrowly analyzed the Employer/Carrier’s misrepresentation defense and remanded to the JCC with instructions to determine if the claimant made “any” statements afoul of F.S. §440.09(4)(a), irrespective of whether the statements relate to the specific injuries for which the claimant is seeking benefits.
Summary: The 1st DCA initially affirmed the JCC’s rejection of the Employer/Carrier’s misrepresentation defense. However, on rehearing, the DCA declined to affirm the JCC’s finding the Employer/Carrier did not plead its misrepresentation defense in sufficient detail as required by Rule 60Q-6.113(2)(h). The DCA reasoned that, although the Employer/Carrier initially did not plead its misrepresentation defense in sufficient detail as required by the Rule, because the Record reflects the claimant did not assert this specificity objection until two days before trial, and that very same day the Employer/Carrier filed its pretrial memorandum setting forth the specific details of its misrepresentation defense and evidentiary support for it, the specifics of the defense were fully litigated at trial by all parties.
The DCA found that the parties proceeded to hearing fully informed of the specific grounds for the Employer/Carrier’s misrepresentation defense and that both parties’ rights were protected.
JCC ORDERS
Dwight Brown v. Custard Insurance/Gallagher Bassett Services, Inc.
JCC Spangler; Tampa District; Order Date: July 6, 2016
OJCC Case: 15-023165EDS; D/A: 11/20/2014
Claimant’s Counsel: Steven E. Hovsepian
Employer/Carrier’s Counsel: Rex Hurley
Briefly: ONE-TIME CHANGE – JCC Spangler granted the claimant’s request for authorization of Dr. Fabio Fiore as a one-time change in physician and found the Employer/Carrier has no authority to impose its interpretation of the fee schedule upon the authorized physician in such a manner that actual care is not provided to the claimant.
Summary: The claimant requested that Dr. Fiore be authorized as the claimant’s one-time change in physician. The Employer/Carrier defended on the grounds that Dr. Fiore was in fact authorized, but that the doctor refused to accept authorization and that the Employer/Carrier did not agree to a prepayment agreement presented by Dr. Fiore which was not consistent with the Florida Workers’ Compensation Fee Schedule.
The JCC noted the Employer/Carrier agreed to pay Dr. Fiore 100% of his charges, limited only by the Florida Workers’ Compensation Fee Schedule. The JCC found that by insisting Dr. Fiore was authorized, the Employer/Carrier, in effect, agreed to pay Dr. Fiore his requested prepayment charge.
Further, the JCC found that, notwithstanding the Employer/Carrier’s position, Dr. Fiore was not actually authorized because the Employer/Carrier refused to pay the physician the requested prepayment fee.
Additionally, the JCC found the Employer/Carrier has no authority to impose its interpretation of the fee schedule upon the authorized physician in such a manner that actual care is not provided to the claimant. The JCC noted the claimant has been left with no medical treatment or evaluation since September 2015, and that the field case manager closed her file and has taken no subsequent action.
Richard Woodward v. Wynn and Sons Environmental Construction/Summit
JCC Rosen; West Palm Beach District; Order Date: July 6, 2016
OJCC Case: 16-006955TMB; D/A: 3/8/2016
Claimant’s Counsel: Eric Lakind
Employer/Carrier’s Counsel: H. George Kagan
Briefly: EMPLOYER/CARRIER’S MOTION TO EXTEND 120 DAY PAY AND INVESTIGATE PERIOD – JCC Rosen granted the Employer/Carrier’s Motion to add an additional 20 days from the date of the claimant’s deposition to deny compensability if it should choose to do so.
Summary: The JCC noted the evidence is undisputed that claimant missed two depositions that were duly scheduled and the claimant failed to comply with a prior order from the Judge of Compensation Claims compelling discovery. The Employer/Carrier argued that because of the claimant’s failure to comply with discovery in several ways, it would be unable to fully investigate this claim within the “120 pay and investigate” time frame allowed by F.S. §440.192(8).
The JCC agreed with the Employer/Carrier and found the Employer/Carrier has not been able to take depositions of the claimant which would allow it to discover material facts relevant to the issue of compensability and, therefore, extended the Employer/Carrier’s 120 day time frame by an additional 20 days following the completion of the claimant’s deposition.
Israel Exantus v. PMI/Comprehensive Insurance Solutions, Inc./York Risk Services Group
JCC Sojourner; Lakeland District; Order Date: July 6, 2016
OJCC Case: 14-010051MES; D/A: 2/1/2014
Claimant’s Counsel: Pat T. DiCesare
Employer/Carrier’s Counsel: Puja Solanki
Briefly: ONE-TIME CHANGE IN PHYSICIANS – JCC Sojourner ordered the Employer/Carrier to authorize Dr. Fabio Fiore as the claimant’s one-time change in physician and found the claimant is entitled to a one-time change to a physician who was not previously authorized to treat.
Summary: The Employer/Carrier authorized Dr. Arango as a one-time change in physician and scheduled an appointment. The claimant immediately advised his attorney that he did not want to see Dr. Arango as this was a doctor he had seen in a hospital and he wanted a different physician for the one-time change. The Employer/Carrier declined to authorize a new physician.
The JCC noted the Employer/Carrier controls the selection of physicians including the one-time change, unless they fail to timely respond to the request for the one-time change. The JCC found that, because the Employer/Carrier did not provide a new physician upon being advised by the claimant that he did not agree to Dr. Arango, the Employer/Carrier forfeited the right to select the one-time change in physician.
Frank Pinto v. Continental Granite and Marble/Auto Owners
JCC Anderson; Daytona Beach District; Order Date: July 6, 2016
OJCC Case: 13-000482WWA; D/A: 12/5/2012
Claimant’s Counsel: Steven Wilson
Employer/Carrier’s Counsel: Neil Ambekar
Briefly: ATTENDANT CARE; TRANSPORTATION – JCC Anderson awarded attendant care benefits and accepted the opinion of the authorized treating physician, Dr. Dorman, that claimant requires two hours per day of attendant care as medically necessary.
Summary: The JCC accepted the opinion of the authorized treating physician, Dr. Dorman, that claimant requires two hours per day of attendant care as medically necessary to assist him with catheterization, help him get in and out of bed and the shower, dressing, emptying and cleaning claimant’s portable toilet, and assisting claimant in taking the multiple medications prescribed for him as a result of the industrial accident. The JCC did not include time spent preparing family meals shared with the claimant.
The JCC denied the request for reimbursement of transportation and found neither the claim in the Petition for Benefits, nor the subsequent pretrial stipulation, put the Employer/Carrier on notice of the claim for reimbursement of transportation services rendered on the date at issue.
Samuel Dewberry v. Pat Salmon & Sons/Alternative Service Concepts
JCC Holley; Jacksonville District; Order Date: July 7, 2016
OJCC Case: 15-021902WRH; D/A: 2/13/2014
Claimant’s Counsel: Stephen M. Andrews
Employer/Carrier’s Counsel: David R. Drill
Briefly: MISREPRESENTATION DEFENSE – JCC Holley denied the claim and found the claimant knowingly made false, fraudulent, or misleading statements to the adjuster for the purpose of obtaining workers’ compensation benefits. The JCC found the claimant told the adjuster that his back was fine with no problems, despite the claimant’s prior low back surgery and continuing problems requiring pain management to the extent his doctor considered a spinal cord stimulator.
Summary: The JCC found the claimant made a false, misleading statement on February 18, 2014, when he reported to the adjuster that since the prior low back surgery, his back was fine with no problems.
A review of the records for the claimant’s prior low back condition revealed the claimant was receiving treatment for post-laminectomy pain from 2004 up until and subsequent to the current industrial accident in 2014. During that time, the claimant reported complaints to his low back and limitations in performing his job as a truck driver. The JCC noted the claimant continued to receive pain management for back complaints in 2013, and was even considered for a spinal cord stimulator.
The JCC awarded taxable costs to the Employer/Carrier.