FL Case Law Summaries – 7/20/16
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JCC ORDERS
Mary Annice Heinle v. Miami-Dade Public Schools/Miami-Dade Public School Board/Gallagher Bassett Services, Inc.
JCC Kerr; Miami District; Order Date: July 11, 2016
OJCC Case: 09-005410MGK; D/A: 5/5/2004, 8/20/2005, 8/31/2005, 10/7/2008, 9/27/2010
Claimant’s Counsel: Mario Arango
Employer/Carrier’s Counsel: Letticia Coleman
Briefly: ATTORNEY’S FEES – JCC Kerr awarded an attorney’s fee in the amount of $92,446.25 based on 284.45 hours of time at an hourly rate of $325, including time spent by claimant’s counsel in attendance at events related to the Excess Carrier’s Claim for Exoneration.
Summary: The JCC found that a total value of the benefits secured amounted to $17,401.46 and that a guideline fee on that amount would be $1,753.40. The JCC noted the case has been “extremely heavily litigated” and cited over 626 items on the OJCC docket. The JCC attached to the order the claimant’s time sheets where the JCC ruled on objections raised to each entry based on her review of the verified petition and affidavit, the response, objections field by the Employer/Carrier, and the testimony of claimant’s counsel.
Claimant’s counsel testified he has been awarded fees of $300-350 per hour in the Miami-Dade County area, and sought a fee based upon the $350 hourly rate. The Employer/Carrier argued the customary fee in the community is $225 per hour. The JCC found claimant’s counsel had to overcome the strenuous defense to the claims raised by the Employer/Carrier and ultimately obtained benefits for his client, which were previously denied, and that an hourly rate of $325 was reasonable. The JCC found that benefits obtained included compensability of a lumbar condition for all dates of accident and reissuance of the “stop aged” check.
The JCC found there was fee entitlement for claimant’s counsel’s attendance at depositions regarding a dispute between the Carrier and the Excess Carrier up through March 11, 2016, under F.S. §440.30. On this issue, claimant’s counsel argued there was no option but to attend this litigation, particularly before March 11, 2016, when the issue was bifurcated. The JCC took into account the Employer/Carrier’s argument that litigation between carriers did not result in a direct benefit to the claimant.
Rickey Meloche v. Able Lawnmowers Sales & Service, Inc./Associated Industries Company/AmTrust North America of Florida
JCC D’Ambrosio; West Palm Beach District; Order Date: July 12, 2016
OJCC Case: 15-027263MAD; D/A: 10/9/2015
Claimant’s Counsel: Christine Tomasello
Employer/Carrier’s Counsel: David R. Rigell
Briefly: ATTORNEY’S FEES – JCC D’Ambrosio denied entitlement to attorney’s fees where the Employer/Carrier immediately responded to the Petition for Benefits with authorization of a pain management physician as requested and an appointment was scheduled with the doctor 56 days after the date the Petition was filed.
Summary: The claimant filed a Petition for Benefits on December 30, 2015, seeking authorization, payment, and provision of an appointment with a board-certified pain management physician. On December 31, 2015, the Employer/Carrier filed a Response to the Petition for Benefits indicating Dr. Mark Rubenstein was authorized and that appointment letters were being sent under separate cover. On January 7, 2016, eight days after the Petition for Benefits was filed, the Employer/Carrier issued a letter to the claimant advising him of the appointment with Dr. Rubenstein which was set for February 23, 2016, 56 days after the Petition for Benefits was filed.
The claimant contended that more than thirty days elapsed between the time he filed his Petition for Benefits and the actual provision of the benefit itself and, therefore, the claimant met the requirements of F.S. §440.34(3), entitling the claimant to recover a reasonable attorney’s fees from the Employer/Carrier. In response, the Employer/Carrier argued medical benefits were provided at the time the carrier communicated the name of the physician who was authorized to treat the claimant.
The JCC accepted the position of the Employer/Carrier and found the Employer/Carrier did not deny the request outright, ignore the request, or fail to act in a timely manner within the prescribed thirty-day period. The JCC cited various 1st DCA decisions uniformly holding that medical benefits are deemed furnished or provided when the Employer/Carrier or Servicing Agent communicates the name of the physician who is authorized to the claimant or the claimant’s attorney. The JCC explained these cases reject the notion that a medical appointment sought via a Petition must actually be scheduled to take place within the specific time, much less thirty days, in order to be considered “furnished” for the purposes of meeting the requirements of F.S. §440.34(3).
Additionally, the JCC noted the claimant presented no evidence that an appointment could have been secured sooner than 56 days, either with Dr. Rubenstein or any other pain management physician.
Juan Matos v. Restoration Technology, Inc./Summit, and Bridgefield Employers Insurance Company
JCC Weiss; Ft. Myers District; Order Date: July 12, 2016
OJCC Case: 14-020560JAW; D/A: 8/20/2014
Claimant’s Counsel: Mark E. Tudino
Employer/Carrier’s Counsel: Omar Perez
Briefly: ONE-TIME CHANGE – JCC Weiss denied the claim for a one-time change in physician and found there was no evidence that any request for a one-time change was made to the Employer and that claimant’s request for a one-time change was not readily apparent.
Summary: The JCC found that, from the outset, claimant’s request for a one-time change appeared purposefully designed to prevent the Employer/Carrier from knowing the claimant was requesting a one-time change in physician. The JCC noted that the facsimile of December 19, 2014, which the claimant alleged contained the one-time change request, was merely addressed to the carrier, not to the adjuster, despite the adjuster previously providing her name and direct contact information to both claimant and claimant’s counsel in the Response to the Petition for Benefits and in the Response to Request to Produce.
Additionally, the JCC noted the fax never listed the claimant’s name or the Employer’s name; rather, the fax was directed only to the claim number. The JCC found the fax was written with the intention of delay in getting it to the adjuster, as any delay works to the benefit of the claimant in light of the five-day time period the carrier has to authorize a one-time change.
Further, the JCC noted the fax itself was sent after business hours on the Friday immediately preceding Christmas. The JCC noted that if the claimant wanted a one-time change, he could have and should have simply asked for a one-time change. The JCC found the fax never actually asked for a one-time change, and although F.S. §440.13(2)(f) was cited, it was one of three statutes that the claimant cited as alternative grounds for seeking authorization of Dr. Shaw.
Moreover, the JCC found the claimant continued his obfuscation in the Petition for Benefits which did not specifically state the claimant is requesting authorization of Dr. Shaw as a one-time change.
The JCC also noted that under F.S. §440.134(10)(c), a managed care plan must allow a one-time change within the provider network. As there was uncontroverted evidence that Dr. Shaw is not a network provider, the JCC accepted the Employer/Carrier’s position that the carrier offered the claimant the selection of his one-time change from a network provider instead of Dr. Shaw.
David Thurman v. Sea Level Marine, LLC/AmTrust North America of Florida
JCC Kerr; Miami District; Order Date: July 14, 2016
OJCC Case: 15-020205MGK; D/A: 3/19/2015
Claimant’s Counsel: Kevin Gallagher
Employer/Carrier’s Counsel: Andrew Borah & Kate Albin
Briefly: ONE-TIME CHANGE IN PHYSICIAN – JCC Kerr denied the claim for authorization of Dr. Suarez and payment of his bills as claimant’s one-time change of physician and accepted the Employer/Carrier’s argument that it timely authorized Dr. Lozman as the one-time change of physician within five days of the written request by the claimant.
Summary: The JCC noted that on September 16, 2015, claimant’s counsel requested a one-time change in treating physicians, and on September 18, 2015, the adjuster faxed a letter to the claimant’s attorney identifying Dr. Lozman as the one-time change and scheduled an appointment for November 16, 2015. Thereafter, claimant’s counsel sent the Employer/Carrier an email indicating that claimant was in too much pain to wait until November 16, 2015. On October 13, 2015, the Employer/Carrier notified claimant’s counsel that Dr. Stein was authorized to see the claimant and an appointment was set for October 21, 2015.
The claimant did not attend the appointment with Dr. Stein, and instead treated with Dr. Suarez on December 20, 2015, taking the position that the Employer/Carrier did not timely provide a one-time change in physicians in accordance with F.S. §440.13(f)(2).
The JCC found that authorization of both Dr. Lozman and Dr. Stein were timely and in accordance with F.S. §440.13(2)(f) and that the claimant had no justification for procuring treatment with Dr. Suarez. The JCC found that Dr. Suarez is not an authorized treating physician and that his opinions are inadmissible and his bills are not the responsibility of the Employer/Carrier.
Darrel Grabner v. Office of the Inspector General/Division of Risk Management
JCC Anderson; Ft. Myers District; Order Date: July 14, 2016
OJCC Case: 15-001373WWA; D/A: 8/8/2014
Claimant’s Counsel: Jason L. Fox
Employer/Carrier’s Counsel: Jonathan L. Cooley
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Anderson found the Employer/Carrier failed to rebut the presumption arising under F.S. §112.18(1)(a), and concluded the claimant’s coronary artery disease is compensable.
Summary: The Employer/Carrier conceded the claimant, as a law enforcement officer, is a member of a protected class, that his coronary artery disease is a condition within the scope of the presumption under F.S. §112.18. and that the condition resulted in disability. Additionally, based on the medical evidence and the pre-employment physical exam, the JCC concluded the pre-employment physical did not show evidence of coronary artery disease. Consequently, the JCC found the presumption of compensability applied and the issue became whether the Employer/Carrier properly rebutted the presumption.
The JCC found the Employer/Carrier failed to carry its burden of proof by competent evidence that a specific combination of wholly non-industrial conditions actually caused claimant’s coronary artery disease. In making this finding, the JCC noted contradictions within the medical evidence.
The JCC was unable to reconcile the statement at of the Expert Medical Advisor, Dr. Perloff, that various risk factors (hyperlipidemia, rheumatoid arthritis, hypertension, and diabetes) “came together” to “result” in claimant’s coronary artery disease with his opinion that risk factors are not causes. Faced with these contradictions, the JCC concluded the Employer/Carrier did not carry its burden of proving by competent evidence that a specific combination of non-industrial conditions caused the claimant’s coronary artery disease.
Joseph Dobbs v. Synergies 3 TEC Services, LLC and The Satellite Man, LLC
JCC Winn; Pensacola District; Order Date: July 14, 2016
OJCC Case: 15-000572NSW; D/A: 8/29/2014
Claimant’s Counsel: Jeremiah Talbott
Employer/Carrier’s Counsel: Galen Novotny
Briefly: INDEPENDENT CONTRACTOR – JCC Winn found the claimant was an independent contractor and not an employee of the Employer, and denied the claimant’s claim for workers’ compensation benefits. The JCC found the claimant was free to accept jobs offered by the Employer installing satellite systems only if he chose to do so and was free to work elsewhere should he desire.
Summary: The JCC reviewed each of the elements set forth in F.S. §440.02(15)(b) and F.S. §440.02(15)(d) 1a and b. The JCC found that while the claimant did not operate a separate “business” entity, based upon the evidence presented, the claimant did satisfy elements of the statute reflecting he is an independent contractor.
The JCC found the claimant was free to accept jobs offered by the Employer only if he chose to do so and was free to work elsewhere should he desire. The JCC also found the claimant was responsible for installing only those satellite systems he agreed to install, and he was paid by the Employer only upon satisfactory completion of each system. Monies due to the claimant were subject to reduction should remedial measures be necessary for improperly or incorrectly installed systems.
The JCC also found the alleged Employer did not deduct taxes or Social Security from monies paid to the claimant and the Employer provided the claimant with a 1099 at the end of the year.
Adrienne Silver v. Harry M. Stevens /Liberty Mutual Insurance
JCC Kerr; Miami District; Order Date: July 15, 2016
OJCC Case: 13-028408MGK; D/A: 1/23/1976, 9/20/1977
Claimant’s Counsel: Joseph Hackney
Employer/Carrier’s Counsel: Eugene P. Flinn
Briefly: ATTORNEY’S FEES – JCC Kerr ordered the Employer/Carrier to pay Mr. Hackney $5,025.00 in reasonable attorney’s fees for securing benefits based on 16.75 hours of attorney time at $300 per hour.
Summary: The JCC found the Employer/Carrier stipulated to fee entitlement for obtaining payment of the bills from Dr. Arrandt and mileage reimbursement. The parties stipulated the value of these benefits is $1,149.54, resulting in a statutory fee of $287.39.
The JCC found that claimant’s counsel is highly skilled and professional and was required to litigate a matter previously the subject of an Order approving a stipulation of the parties and that a reasonable hourly fee is $300 under these circumstances.
Roberto Ortega v. P&F Industries/Hartford Insurance of the Southeast
JCC Lorenzen; Tampa District; Order Date: July 15, 2016
OJCC Case: 16-014289EHL; D/A: 6/26/2014
Claimant’s Counsel: Daniel DeCiccio
Employer/Carrier’s Counsel: Abigail O. Voronec
Briefly: ONE-TIME CHANGE IN PHYSICIANS – JCC Lorenzen granted the claimant’s Motion for Summary Final Order and determined the carrier failed to respond timely to the first written request for a one-time change and that the untimely response was legally insufficient because it failed to provide the name of a specific physician the Employer/Carrier was authorizing.
Summary: The JCC found the Employer/Carrier did not identify a specific physician until it filed an Amended Response to the Petition, agreeing to authorize Dr. Hess, the doctor requested by the claimant in his Petition.
The JCC noted that “some might argue that a ruling on claimant’s Motion was moot because the Employer/Carrier agreed to authorize the doctor claimant requested.” However, the JCC concluded the ruling on the Motion was necessary because although the Employer/Carrier was willing to authorize the doctor requested by the claimant, the doctor had not yet agreed to treat the claimant, but only agreed to review claimant’s medical records and decide if he will accept the claimant as a patient. The JCC found it was important for the claimant to secure a ruling that the Employer/Carrier did not timely respond to his request for a one-time change and that the right to control the selection of a doctor was waived by the Employer/Carrier.
Heriberto Larriuz-Diaz v. Cypress Gulf Development/Zurich American Insurance
JCC Spangler; Tampa District; Order Date: July 15, 2016
OJCC Case: 11-027522EDS; D/A: 8/22/2011
Claimant’s Counsel: Michael J. Winer
Employer/Carrier’s Counsel: Jack Keller
Briefly: MISREPRESENTATION DEFENSE – JCC Spangler rejected the Employer/Carrier’s misrepresentation defense and found there was no evidence to support a finding that the claimant made some direct statement that was knowingly false to the treating physician, Dr. Libreros.
Summary: The JCC found the Employer/Carrier predicated the misrepresentation defense on the its conclusions that the claimant must have knowingly made false statements to Dr. Libreros regarding the existence of right-sided complaints related to the original injury, when he had only complained of left-sided inguinal complaints to all preceding medical providers.
The JCC found there was no direct attribution of any specific statement made by the claimant to Dr. Libreros regarding the origin of those complaints, and the conclusion that it was the claimant who made direct statements to the doctor was based on nothing more than an inference. The JCC found that inferences without a factual basis cannot support the defense.
Roderick Fordham v. Pinellas County Sheriff’s Office/Pinellas County Risk Management
JCC Rosen; St. Petersburg District; Order Date: July 18, 2016
OJCC Case: 14-023702SLR; D/A: 9/10/2014
Claimant’s Counsel: Tonya A. Oliver
Employer/Carrier’s Counsel: Nancy S. Meyer
Briefly: TTD/TPD– JCC Rosen awarded temporary partial disability benefits for the period of time from June 15, 2015, through June 28, 2015, when the treating physician specifically told the claimant he was on a no-work status and where the claimant was paid his full salary during the month of June 2015.
Summary: The Employer/Carrier argued that claimant was paid his full salary during the month of June, 2015, and there was no medical evidence from an authorized physician that he was in any way restricted from working during that period of time. However, the JCC accepted the claimant’s testimony in conjunction with the testimony of the authorized treating physician, Dr. Spriggs, that claimant was on a no-work status as of June 15, 2015.
The JCC accepted claimant’s testimony that he was incapable of performing his job duties as a correctional officer in charge of numerous inmates during the period claimed for temporary indemnity benefits. The JCC also found that Dr. Spriggs told the claimant he was on a no-work status on June 15, 2015, but the doctor failed to inform the Employer of this.
The JCC found that both the Employer and the claimant shall be entitled to applicable offsets and reimbursements of sick/vacation time to reach a figure of 100% between temporary indemnity and use of personal time by the claimant.
Salvador Reyes v. Coinmach Service Corporation/Sedgwick CMS
JCC Sojourner; Lakeland District; Order Date: July 18, 2016
OJCC Case: 15-009313MES; D/A: 10/17/2014
Claimant’s Counsel: A. Dawn Hayes
Employer/Carrier’s Counsel: Bettina Carrier
Briefly: ATTORNEY’S FEES – JCC Sojourner ordered the Employer/Carrier to pay claimant’s counsel $15,431.00 as a reasonable attorney’s fee based upon 61.8 hours of reimbursable attorney time and 21.8 hours of paralegal time. The JCC found the appropriate hourly rate for attorney time is $225 and $70 for paralegal time.
Summary: The JCC found that benefits obtained amounted to $38,798.26 which would result in a statutory guideline fee of $4,629.83. The JCC also found the customary fee charge in the locality ranged from $200-$275 per hour, but the appropriate hourly rate in this matter is $225 for attorney time.
The JCC considered the fact that some of the issues were resolved at mediation and the issues for the final hearing were not novel. The JCC found the benefits obtained were significant in amount, and that litigation was required to resolve the issues. The JCC also found that the statutory fee amount is significantly less than the customary amounts charged.