FL Case Law Summaries – 7/1/16
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JCC ORDERS
Pilar Rojas v. Hilton Worldwide, Inc. d/b/a Conrad Miami/Sedgwick CMS
JCC Almeyda; Miami District; Order Date: June 29, 2016
OJCC Case: 14-016805ERA; D/A: 5/6/2014
Claimant’s Counsel: Rene Hidalgo
Employer/Carrier’s Counsel: Beth Koller
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Almeyda denied claims for medical treatment, including follow-up care with a hand specialist and provision of an interpreter and transportation, and found the claimant failed to prove a sufficient causal relationship between her carpal tunnel syndrome and work activities.
Summary: The JCC accepted the testimony of the authorized hand specialist, Dr. Easterling, who concluded the claimant’s condition was idiopathic and not occupational. Dr. Easterling explained the claimant, a 57 year-old lady, fits the description of the type of individual prone to develop carpal tunnel syndrome without a traumatic event.
The JCC noted Dr. Easterling explained the type of work activities which lead to a traumatically-caused carpal tunnel condition would include activities that were prolonged, highly repetitive, and include very forceful flexion of the wrist on a continuous or frequent basis over the course of weeks, months, or years. After evaluating claimant’s testimony with regard to her work activities, the JCC found the claimant varied the type of activities she performed and there was no testimony she performed a particular forceful flexion of the hands/wrist on a continuous basis.
Jodi Hall v. Beall’s Outlet/Sedgwick CMS
JCC Weiss; Ft. Myers District; Order Date: June 30, 2016
OJCC Case: 15-027706JAW; D/A: 10/1/2013
Claimant’s Counsel: Clark W. Berry
Employer/Carrier’s Counsel: David Hamilton Roos
Briefly: MAJOR CONTRIBUTING CAUSE; HINDRANCE TO RECOVERY – JCC Weiss denied the claim for authorization of surgery and found the industrial accident is not the major contributing cause of the need for surgery and that the surgery is not compensable under the hindrance to recovery doctrine.
Summary: The claimant requested compensability of surgery recommended by the authorized neurosurgeon, Dr. Alvarez. The claimant argued that since the surgery is designed to reduce the pain, the accident is the major contributing cause for the need for surgery. The JCC found this argument misapprehends Dr. Alvarez’ uncontroverted testimony that the purpose of the recommended surgery is to stabilize the claimant’s spine and the major contributing cause of the need for surgery is the pre-existing condition, not the industrial accident.
Further, the claimant argued the surgery was compensable under the hindrance to recovery doctrine. The claimant’s theory was that the work accident caused the claimant’s pain and the surgery is necessary to remove the pain, making it compensable. The JCC rejected this argument and found the purpose of the surgery in this case is to stabilize claimant’s lumbar spine. Further, the JCC stated there is a lack of legal authority to support the hindrance to recovery doctrine where there is only one medical condition, as in this case, the lumbar spine injury.
Marc Klesmer v. Sears Holding/Sedgwick CMS
JCC Hogan; Ft. Lauderdale District; Order Date: June 30, 2016
OJCC Case: 14-001919GBH; D/A: 4/6/2013
Claimant’s Counsel: A. Scott Gow
Employer/Carrier’s Counsel: Carlos J. Hernandez
Briefly: RES JUDICATA; MAJOR CONTRIBUTING CAUSE – JCC Hogan denied the claim for medical treatment, including authorization of Dr. Ellowitz and MRIs of the left knee and lumbar spine, and found the claim is barred by res judicata and the major contributing cause of the need for treatment to the claimant’s left knee and lumbar conditions is the pre-existing degenerative disease in the claimant’s left knee and back.
Summary: The JCC found the claim for continued authorization of Dr. Ellowitz to treat the claimant’s low back and bilateral knee injuries was previously raised and is now barred by res judicata. The JCC cited F.S. §440.25(4)(d) which provides that any benefit due but not raised at the final hearing which is ripe, due, or owing at the time of the final hearing is waived. The JCC noted a final hearing was held previously in this case in July 2015. At the time of the July 2015 final hearing, the Petition filed on June 24, 2015, was pending; however, the parties had not mediated the issues raised in that Petition. The JCC found that because claimant’s counsel did not notify the JCC of the pending Petition for Benefits and did not request the JCC to reserve jurisdiction over the claims listed in that Petition, the benefits requested in that Petition are barred by res judicata.
With regard to the major contributing cause defense, the JCC accepted the testimony of Dr. Jarolen, the Employer/Carrier’s IME, that the major contributing cause of the need for treatment of the claimant’s knee was a pre-existing degenerative condition as shown on the prior MRI. The JCC also accepted Dr. Cameron’s opinion that claimant would go back to the pre-existing and age-related degenerative conditions within 6-12 months following the aggravation of the pre-existing condition caused by the industrial accident, so that the industrial accident is not the major contributing cause for the need for treatment in the lumbar MRI.