FL Case Law Summaries – 8/10/16
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JCC ORDERS
Ana Raposo v. Flagler County School Board/Johns Eastern Company, Inc./Flagler County Board of Public Ins
JCC Anderson; Daytona Beach District; Order Date: August 3, 2016
OJCC Case: 14-021931WWA; D/A: 7/2/2014
Claimant’s Counsel: Keith C. Warnock
Employer/Carrier’s Counsel: Nancy Blastic
Briefly: MOTION TO MODIFY; MISREPRESENTATION – JCC Anderson granted the Employer/Carrier’s Motion for Modification on the grounds the claimant knowingly and intentionally testified at the final hearing in a manner that was false with the specific intent to deceive for the purposes of securing workers’ compensation benefits.
Summary: The JCC described the history of this case including a prior final hearing held on October 7, 2015, with a compensation order dated October 21, 2015, awarding TPD benefits and medical care. At the final hearing on October 7, 2015, the claimant testified she worked for Publix for two weeks sometime after her deposition in May 2015, but had to quit because of pain from her injuries sustained in the industrial accident. In the order of October 21, 2015, the JCC found the claimant had not refused employment within her restrictions and, in fact, had attempted to work. The Employer/Carrier appealed and the order was affirmed without written opinion in April 2016.
Thereafter, the Employer/Carrier filed a Motion for Modification pursuant to F.S. §440.28 and alleged the claimant gave false testimony at the October 2015 final hearing when she testified she worked at Publix for two weeks after her deposition. Claimant’s counsel responded to the Motion and denied the claimant intentionally made misrepresentations, but suggested the claimant had difficulty understanding and answering questions at the final hearing because English is not her first language and because she did not clearly and unambiguously testify that she worked at Publix.
The JCC carefully considered the claimant’s testimony and cited the portion of the claimant’s testimony at the October 2015 final hearing where she specifically stated she worked at Publix, “put stuff on the partitions”, “took stuff out of the boxes”, and that some guy was next to her in the back room observing how she was limping. The JCC stated he was unable to attribute this very specific testimony that she worked for two weeks and stocked grocery shelves to a language barrier or nervousness. Instead, the JCC found the claimant knowingly and intentionally testified under oath at the final hearing and that such testimony was given with the specific intent to deceive for the purpose of securing workers’ compensation benefits. The JCC granted the Motion for Modification and denied all benefits awarded in the prior final order.
Kayum Shaikh v. T-Mobile USA, Inc./Travelers Insurance
JCC Massey; Tampa District; Order Date: August 4, 2016
OJCC Case: 16-000538MAM; D/A: 6/8/2007
Claimant’s Counsel: Kevin Gallahger
Employer/Carrier’s Counsel: Esther Nickas
Briefly: SETTLEMENT; STATUTE OF LIMITATIONS – JCC Massey denied the claim for medical treatment and found the workers’ compensation claim is barred by a settlement and release entered into by the claimant and the Employer in July 2015 and that the claim is barred by the statute of limitations.
Summary: The JCC found the claimant executed a separation agreement with the Employer in which he received a lump sum of money and which contained a “Waiver and Release” of “all claims.” The JCC found the language in the release was broad enough to include, and did include, a release and settlement of the workers’ compensation claim. The JCC cited case law authority to support his findings that the Waiver and Release language in the Separation Agreement signed by the claimant waived and released the Employer from any further liability for workers’ compensation benefits, barring the instant claim.
The JCC found the terms of the agreement clear, so that there was no need to resort to parol evidence or other evidence of the parties’ alleged “intent”. Further, the JCC found that the intent of the plain language of the agreement was to release the Employer from all claims whatsoever including the instant workers’ compensation claim.
Regarding the statute of limitations defense, the JCC found there was no question the January 2016 Petition for Benefits was filed more than two years after the date of accident and more than one year after the last payment of indemnity or provision of authorized medical care. The JCC found the Employer/Carrier established a prima facie statute of limitations defense, thereby shifting the burden to the claimant to prove either tolling or estoppel. The JCC also found there was uncontroverted evidence that the state-approved informational brochure was mailed to and received by the claimant, placing him on notice of the statute of limitations. The claimant also admitted that his prior counsel advised him of the relevant limitations. Accordingly, the JCC found it was the claimant’s burden to prove estoppel by clear and convincing evidence.
The JCC found the claimant did not prove estoppel, even under the lesser preponderance of evidence standard. Here, the claimant’s sole argument for estoppel was that the carrier failed to obtain a maximum medical improvement date or impairment rating from the treating physician pursuant to the case of Gauthier v. Florida International University, 38 So. 3d 221 (Fla. 1st DCA 2010). The JCC distinguished the Gauthier case and found in the present case there was no evidence the claimant ever reached MMI or would likely have a permanent impairment. Therefore, unlike Gauthier, there was no evidence the carrier “avoided” the payment of impairment benefits which would have otherwise have been payable and would have tolled the statute of limitations. The JCC specifically found that any failure on the part of the carrier to obtain a permanent impairment rating did not deprive the claimant of the opportunity to timely seek or receive continuing medical care to of which he had full knowledge.
Further, the JCC found there was no misrepresentation, or failure to disclose, or withholding of information to support a finding of estoppel in favor of the claimant. The JCC found the claimant was aware that he was required to seek medical treatment at least once a year and simply failed to do so.
Allen Morosohk v. Sysco/Gallagher Bassett Services, Inc.
JCC D’Ambrosio; West Palm Beach District; Order Date: August 4, 2016
OJCC Case: 15-021349MAD; D/A: 1/12/2015
Claimant’s Counsel: Neal Falk
Employer/Carrier’s Counsel: Kip Lassner
Briefly: MAJOR CONTRIBUTING CAUSE; DAUBERT; APPORTIONMENT – JCC D’Ambrosio granted the claim for medical and indemnity benefits and found the industrial accident remains the major contributing cause of the need for continuing treatment of the ankle injury.
Summary: The JCC found the carrier previously accepted compensability of the injuries in dispute and noted the Employer/Carrier’s current denial was premised on the major contributing cause theory. However, the JCC found that even the Employer/Carrier’s IME physician, Dr. Steinlauf, failed to convincingly dispute the opinion of the treating physician, Dr. Bromson, and the claimant’s IME, Dr. Kinmon. The JCC accepted the testimony of Dr. Bromson and Dr. Kinmon on the issue of major contributing cause and found future medical care is medically necessary for the ankle injury as a result of the aggravation at work.
With regard to the issue of apportionment, the JCC sustained the claimant’s Daubert objections to the opinion of the treating physician, Dr. Bromson, regarding percentages of causation. The JCC found that Dr. Bromson cited no scientifically reliable data, peer review testing or methodology for arriving at percentages of causation.
Robert Petrosus v. B R Foods/Zenith Insurance Company
JCC Sojourner; Lakeland District; Order Date: August 4, 2016
OJCC Case: 15-030162MES; D/A: 1/14/2015
Claimant’s Counsel: E. Taylor Davidson
Employer/Carrier’s Counsel: Thomas Scully
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Sojourner denied the claim for medical and indemnity benefits and found the work-related injury was no longer the cause of the need for treatment. The JCC found the aggravation suffered by the claimant had resolved and the claimant is now at baseline.
Summary: The JCC found the claimant’s prior accident is also a work injury and, therefore, the major contributing cause theory does not apply. However, the JCC also found there is only one cause of the claimant’s current need for treatment, which is the prior work accident.
The JCC noted the accident and injury were initially accepted as compensable and the Employer/Carrier provided medical care and treatment with Dr. David Arango. Dr. Arango diagnosed the claimant with an aggravation of a pre-existing back condition and placed the claimant at maximum medical improvement with a 0% permanent impairment rating. The JCC accepted Dr. Arango’s testimony that claimant’s aggravation had resolved and that the pre-existing condition was now 100% responsible for the symptoms suffered by the claimant.
The JCC found the current Employer/Carrier has provided all benefits required by the statute, and it would not be appropriate to require the Employer/Carrier to incur additional costs for an injury which arose prior to the current employment when the compensable injury has resolved.
Robert Izzo v. Orange County Fire and Rescue/Johns Eastern Company, Inc.
JCC Sculco; Orlando District; Order Date: August 4, 2016
OJCC Case: 13-027375TWS; D/A: 2/23/2013, 2/25/2013
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Karen J. Cullen
Briefly: ATTORNEY’S FEES – JCC Sculco found the statutory fee of $4,203.30 based on $34,532.97 of past and future benefits secured, to be manifestly unfair. The JCC ordered the Employer/Carrier to pay attorney Paolo Longo $17,940.50 based upon 67.7 hours of attorney time at $265 per hour. The JCC noted that Mr. Longo has significant experience and expertise in workers’ compensation and an excellent reputation, but is not currently board-certified and found the rate of $265 is reasonable and appropriate.
Jorge A. Sarmiento v. City of Miami Beach/Johns Eastern Company, Inc./Corvel Corporation
JCC Almeyda; Miami District; Order Date: August 4, 2016
OJCC Case: 93-007393ERA, 01-000532ERA, 02-037878ERA; D/A: 8/4/1993
Claimant’s Counsel: Alejandro Zaldivar
Employer/Carrier’s Counsel: Luis Estrada
Briefly: MEDICAL NECESSITY – JCC Almeyda awarded the requested medical treatment and noted this case is not governed by the doctrine of major contributing cause as it preceded the 1994 statutory amendments. The JCC found the claimant established the right to continue medical treatment.
Summary: The JCC noted this case is not governed by the doctrine of major contributing cause as it preceded the 1994 statutory amendments. The JCC found the Employer/Carrier failed to establish another more likely cause for the continued symptomology and continued need for treatment and that the claimant established the right to continue medical treatment.
The JCC noted the claimant, while at maximum medical improvement, has a residual impairment with ongoing complaints and was released to return as needed. The JCC found that none of the physicians stated that further treatment is no longer necessary.
Zeferino Jimenez v. Shoreline Restoration Masonry, LLC/Auto Owners
JCC Winn; Pensacola District; Order Date: August 5, 2016
OJCC Case: 13-028730NSW; D/A: 5/27/2013
Claimant’s Counsel: Thomas Condon
Employer/Carrier’s Counsel: Matthew Jones
Briefly: AVERAGE WEEKLY WAGE – JCC Winn determined the average weekly wage to be $0.00 and found it was the claimant’s burden of proof to report to the IRS wages paid to him by the Employer and that the claimant failed to carry this burden.
Summary: The JCC found the claimant failed to establish he reported his wages to the IRS and, therefore, determined the average weekly wage should be $0.00.
The JCC cited F.S. §440.02(28) for the definition of “wages” for workers’ compensation purposes to include “…only the wages earned and reported for federal income tax purposes….” The JCC also cited the case of Silanas v. C.A.T. Concrete, LLC, 46 So. 3d 600 (Fla. 1st DCA 2010), as holding it is the claimant’s burden to prove his wages were reported for Federal Income Tax purposes.
The JCC found the claimant’s testimony lacked credibility and his ability to recall details and specifics was practically non-existent. The JCC found the claimant was adamant on direct exam that H&R Block filed his return, but on cross-exam he was adamant that he filed his return himself. The JCC found the claimant’s contradictory testimony as to who filed the return did not support a finding that claimant’s 2013 individual income tax return was ever filed with the IRS.
Based upon the statutory mechanism for determination of the average weekly wage, including the language in F.S. §440.12(2), the JCC found claimant is entitled to his “full weekly wages” at the time of the accident, which was zero dollars per week.
Oliver Spann v. Allied Universal Holding Corporation/Continental Indemnity Company
JCC Anderson; Daytona Beach District; Order Date: August 8, 2016
OJCC Case: 15-002066WWA; D/A: 1/12/2015
Claimant’s Counsel: Angela G. Ferguson
Employer/Carrier’s Counsel: Barbara K. Case
Briefly: PTD; TPD – JCC Anderson denied the claim for permanent total disability benefits as premature and, alternatively, awarded temporary partial disability benefits.
Summary: The JCC denied the claim for PTD benefits as premature and found the claimant did not carry his burden to show he has reached overall maximum medical improvement.
With regard to temporary partial disability, the JCC found that claimant sustained his burden of proof showing a causal connection between the loss of employment at pre-accident wages and the industrial accident. The JCC found the medical evidence is unrefuted that claimant sustained severe injuries as a result of the industrial accident and was unable to return to his pre-accident employment as a truck driver.
The Employer/Carrier alleged the claimant voluntarily limited his income when he refused suitable employment arranged for him by the Employer/Carrier with two charitable organizations. The JCC found that the “jobs” arranged for him with local non-profit organizations with a third party vendor retained by the Employer were unsuitable given claimant’s vocational background and the severity of the his injuries.