FL Case Law Summaries – 7/12/16
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JCC ORDERS
Barbara Holcomb v. Lowe’s Store 2367/Sedgwick CMS
JCC Rosen; Panama City District; Order Date: July 8, 2016
OJCC Case: 12-016306LAR; D/A: 9/13/2011
Claimant’s Counsel: John B. Carr and Ted J. Troxel
Employer/Carrier’s Counsel: Steven E. Oole
Briefly: ATTORNEY’S FEES – JCC Rosen awarded a guideline attorney’s fee in the amount of $12,744.55, and found there was no reason to depart from the statutory fee schedule. The Employer/Carrier argued an hourly rate would have resulted in a lesser fee.
Summary: The JCC found the amount paid for surgery by the Employer/Carrier was clearly secured through the efforts of the attorney for the claimant and the Employer/Carrier presented no compelling reason to depart from the fee schedule in F.S. §440.34.
The Employer/Carrier argued the fee schedule affords too great a fee and that the fee should be based on 10.9 of attorney time and 17.5 support staff hours. The Employer/Carrier argued a guideline fee, as awarded, would result in an hourly rate of $1,000.00 per hour for claimant’s counsel.
Charles Smith v. Surfside Supply/Guarantee Insurance Company
JCC Lazzara; West Palm Beach District; Order Date: July 8, 2016
OJCC Case: 11-002861JJL; D/A: 5/29/2009
Claimant’s Counsel: William L. Contole
Employer/Carrier’s Counsel: Rene Lopez and Jessica Blydenburgh
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Lazzara awarded permanent total disability benefits and found the claimant’s vocational challenges, along with his work restrictions, rendered any work search futile. The JCC found the claimant satisfied two of the three ways to prove entitlement to permanent total disability benefits as outlined in Blake v. Merck and Company, 43 So. 3d 882 (Fla. 1st DCA 2010).
Summary: The JCC noted the claimant is a 59 year-old male, married with two children, who dropped out of school in the 11th grade and has been employed as a roofer since quitting school. The claimant suffered injuries to his left knee, right shoulder, and back, all conditions that have been accepted as work-related. Although he had a pre-existing back injury sometime in 1989, the claimant was able to return to work as a roofer with his Employer for 14 years.
The JCC found that in 26 years of adjudicating workers’ compensation claims, the claimant in this case was as candid, credible, and honest as any of the witnesses who have testified before him. The JCC rejected the Employer/Carrier’s contention that claimant intended to mislead his medical providers concerning prior injuries, physical problems, or treatment he received for the purpose of furthering his claim.
The JCC accepted the vocational opinion of the claimant’s expert, Jerry Adato, over the Employer/Carrier’s vocational expert, John Roberts, because Mr. Adato’s opinions were more detailed regarding re-employment assessment, more thorough and extensive, and relied on credible medical evidence. The JCC accepted Mr. Adato’s testimony that the claimant is unemployable even at a sedentary level due to his on his advanced age, lack of transferrable skills, and educational deficits.
In rejecting Mr. Roberts’ testimony, the JCC noted that Mr. Roberts spoke to the claimant for only about one hour, approximately two weeks before the trial. Additionally, Mr. Roberts conceded that if Dr. Krost’s physical restrictions were accepted, the claimant would be totally disabled for any gainful employment. The JCC did accept the work restrictions of Dr. Krost, the claimant’s authorized physiatrist and pain management specialist, and found the claimant is unable to work even at a sedentary level due to the overall injuries sustained in his industrial accident.
Ana M. Escobar v. Miami-Dade County Public Schools/Sunset Elementary/Gallagher Bassett Services, Inc.
JCC Castiello; Miami District; Order Date: July 8, 2016
OJCC Case: 12-012581GCC; D/A: 2/2/2012
Claimant’s Counsel: Alejandro Zaldivar
Employer/Carrier’s Counsel: Liane T. Alvarez
Briefly: ATTORNEY’S FEES – JCC Castiello awarded the claimant $9,030 in attorney’s fees and found the Employer/Carrier failed to timely file a response to the claimant’s verified petition
Summary: The JCC found the Employer/Carrier failed to timely file a response to the claimant’s verified petition under Rule 60Q-6.124(3), requiring the Employer/Carrier to file a response within 30 days. Accordingly, the JCC accepted as true the facts and ultimate conclusions stated in the verified petition. The JCC did not elaborate on the specific facts or conclusions set forth by claimant’s counsel in the verified petition.
Terry McKibbins v. Texwood Industries/Travelers Insurance
JCC Weiss; Ft. Myers District; Order Date: July 8, 2016
OJCC Case: 02-012641JAW; D/A: 11/5/1999
Claimant’s Counsel: Brian O. Sutter
Employer/Carrier’s Counsel: Colin J. McLean
Briefly: ATTENDANT CARE – JCC Weiss denied the claim for 24 hour-a-day attendant care and found the testimony from the authorized physical medicine specialist, Dr. Tafel, was that his prior report about attendant care was an observation, not a prescription, and that the majority of claimant’s need for attendant care was due to unrelated liver disease.
Summary: The JCC noted the sole claim for attendant care benefits was a request for 24 hour-a-day attendant care based on a prior report from Dr. Tafel, claimant’s authorized treating physician. The JCC found that Dr. Tafel’s deposition testimony indicated he did not prescribe attendant care, only that he reported on care that was being provided to the claimant. At deposition, Dr. Tafel maintained his prior report that the claimant continued to live at home and required significant assistance with daily activities was an observation, not a prescription for attendant care.
Further, it was Dr. Tafel’s opinion that the majority of claimant’s need for attendant care was due to unrelated liver disease. Dr. Tafel was under the impression the claimant was in hospice for a terminal condition and, therefore, Dr. Tafel could not say what the major contributing cause of the need for attendant care would be.