FL Case Law Summaries – 8/12/16
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JCC ORDERS
Raymond Carrion v. American Airlines/Sedgwick CMS
JCC Castiello; Miami District; Order Date: August 9, 2016
OJCC Case: 15-026393PCC; D/A: 8/17/2015
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Michael A. Hernandez
Briefly: ATTENDANT CARE – JCC Castiello denied the claim for attendant care and found the treating doctor did not see the need for attendant care, and the factual evidence did support a finding that the specific attendant care services claimed were actually provided.
Summary: The JCC found there was no medical evidence to support an award for the attendant care claimed and noted the treating physician, Dr. Robla, opined that attendant care is not required.
The JCC also noted the claim was for attendant care services performed by the wife, but found there was no factual evidence presented to support a finding that attendant care services were actually provided by the wife.
The JCC found that although the claimant’s brother assisted him in going to and coming from surgery, there was no indication the brother lost any time from work as a result of his doing so.
Victor Soca v. Advanced Auto Parts/Sedgwick CMS
JCC Hill; Miami District; Order Date: August 9, 2016
OJCC Case: 11-023208CMH; D/A: 4/24/2010
Claimant’s Counsel: Bram J. Gechtman
Employer/Carrier’s Counsel: Christopher A. Thorne
Briefly: SANCTIONS; PREVAILING PARTY COSTS – JCC Hill awarded $2,377.50 in fees and costs as a sanction against counsel for the Employer/Carrier and found the failure of the Employer/Carrier to timely withdraw the motion for prevailing party costs led to a needless increase in litigation expense and that the cost motion was not warranted by existing statutory law at the time.
Summary: The JCC found the Employer/Carrier’s Motion to Tax Costs against the claimant was inherently invalid and violated Rule 60Q-6.125(2)(a) and (2)(b). The JCC found that failure of the Employer/Carrier to timely withdraw the costs motion led to needless increase in litigation expense.
The JCC found the sanction of $2,377.50 to be sufficient to deter repetition of this conduct in this case and the conduct of others.
Francisco Ortiz v. American Airlines/Sedgwick CMS
JCC Hill; Gainesville District; Order Date: August 9, 2016
OJCC Case: 12-015584MRH; D/A: 8/17/2011, 12/2/2013
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: Michael A. Hernandez
Briefly: COMPENSABILITY; MEDICAL BENEFITS – JCC Hill denied the claim for compensability of the claimant’s back injury without prejudice, but granted the claim for an orthopedic surgeon to evaluate the claimant’s back condition.
Summary: The claimant sustained work injuries when another employee hit him with a tractor on the right side of this body. The claim was accepted as compensable and the claimant was provided with treatment for his right knee, including authorized knee surgery.
The JCC accepted the claimant’s testimony that he has consistently complained about his back pain to his authorized treating physician from the day he began treatment. However, the JCC found there is no evidence, other than claimant’s objective complaints of pain, that he sustained a compensable injury to his back as a result of the work accident. The JCC found there is no record evidence to support compensability of the claimant’s back condition.
The JCC cited case law authority reflecting that an evaluation is compensable if the purpose of the evaluation is to determine whether an objective basis exists to support the claimant’s symptoms, Morrow v. Sam’s Club, 17 So. 3d 763 (Fla. 1st DCA 2009).
The JCC found the claimant established entitlement to an evaluation of his back to determine whether there is an objective basis for his symptoms and, if so, whether the work accident is the major contributing cause of the symptoms and need for treatment. In making his finding, the JCC noted the medical evidence included no reports of spasms, no MRI or x-ray results, nor any objective physical evidence to correlate the claimant’s subjective complaints.
Simon Carmona-Rodriguez v. PA Contractors/Florida Citrus Business Industry and Angela Drywall, LLC/Builders Insurance Company
JCC Beck; Sarasota District; Order Date: August 10, 2016
OJCC Case: 15-024382DBB; D/A: 9/18/2015
Claimant’s Counsel: Robert J. Rivera
Counsel for PA Contractors/Florida Citrus Business Industry: Katherine G. Letzter
Counsel for Angela Drywall, LLC/Builder’s Insurance Company: David K. Beach
Briefly: EMPLOYER/EMPLOYEE RELATIONSHIP – JCC Beck found the claimant failed to establish he meets the definition of “employee” for either of the two alleged Employers and that there was another more plausible Employer on the date of accident for which the claimant was exempt from coverage.
Summary: Claimant filed a Petition for Benefits against two Employers and the JCC found that claimant failed to establish he was an employee of either company. The JCC found that neither company exercised control over the employee, including control over drywall hanging that would establish an employer/employee relationship. The JCC found the only logical and reasonable view of the circumstances is that there was another more plausible Employer on the date of accident.
Additionally, the JCC found claimant’s witnesses lacked credibility. The JCC found the demeanor of the claimant and his witnesses did not support the trustworthiness of their statements, and, quite simply, they could not keep their stories straight between deposition and final hearing.
For instance, the claimant admitted at trial that he is secretary of the more plausible Employer and has been for years, and that his brother Juan is president, his brother Eduardo vice president and they all work there. The JCC concluded the claimant lied at deposition to hide the fact he was working for the more plausible Employer on the date of accident because he knew he was exempt from coverage.
Tamara Barroso v. Wyndham Worldwide Corporation/Liberty Mutual Insurance
JCC Rosen; West Palm Beach District; Order Date: August 10, 2016
OJCC Case: 15-015516SLR; D/A: 6/14/2015
Claimant’s Counsel: David C. Wiitala
Employer/Carrier’s Counsel: Robert Swanson
Briefly: ATTORNEY’S FEES – JCC Rosen ordered the Employer/Carrier to pay attorney’s fees in the amount of $28,875 based upon an hourly rate of $350 for 82.5 hours.
Summary: The JCC noted that counsel secured a finding of compensability, an award of temporary partial disability benefits of $2,847 before offset for unemployment compensation, payment of $561 in emergency room bills and authorization of further medical treatment. The JCC found the application of the guideline fee to the benefits retained would result in a fee so low that the claimant could not be expected to retain competent counsel to represent her.
The JCC found that this was a complicated case which was totally controverted and but for the intervention of claimant’s counsel, claimant would have received no benefits. The JCC found the issues were unique, required exceptional representation by claimant’s counsel, and the attorney for claimant’s counsel’s expertise was necessary to secure the benefits awarded to the claimant.
Pete Taylor v. Miami Dade Police Dept./Miami Dade County Risk Management
JCC Medina-Shore; Miami District; Order Date: August 11, 2016
OJCC Case: 13-005079SMS; D/A: 2/14/2013
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Daron S. Fitch
Briefly: PERMANENT IMPAIRMENT RATING; HYPERTENSION – JCC Medina-Shore ordered the Employer/Carrier to pay permanent impairment benefits pursuant to the Expert Medical Advisor’s opinion that claimant sustained a 45% permanent impairment rating, Class III, under the Florida Guidelines for hypertension with severe left ventricular hypertrophy.
Summary: The JCC noted the applicable Florida Guidelines have not been revised in twenty years and that some of the sections are vague, leaving room for different interpretations by physicians. The JCC stated “there is no doubt the workers’ compensation system would certainly benefit from up-dated Florida Guidelines.” However, the JCC found the 1996 Florida Guidelines provided physicians with the method to assess impairment in situations where the category applicable to the impairment condition cannot be found. The JCC noted that the Florida Guidelines indicate “if a category applicable to the impairment condition cannot be found in this Rule, then the category most closely resembling impairment or the degree of impairment based on analogy should be chosen (Page 5 of the Guidelines).”
The JCC found that although Dr. Perloff and all the doctors opined the claimant does not satisfy Class III as written in Florida Guidelines, the claimant’s left ventricular hypertrophy condition is not covered under any of the other categories (Classes I, II and IV). The JCC accepted the opinion of Dr. Perloff that the category most closely resembling the degree of impairment is Class III as claimant’s left ventricular hypertrophy, LVH, is severe. The JCC accepted Dr. Perloff’s higher permanent impairment rating of 45% as supported by the echocardiogram, an advanced objective diagnostic tool.
Mercedes Alfonso v. Enterprise Rent-A-Car/York Risk Services Group
JCC Humphries; Jacksonville District; Order Date: August 11, 2016
OJCC Case: 14-012504RJH; D/A: 1/24/2014
Claimant’s Counsel: D. Robert “Bobby” Wells
Employer/Carrier’s Counsel: Henry J. Roman
Briefly: VERIFIED MOTION TO TAX COSTS – JCC Humphries denied the Employer/Carrier’s motion seeking to tax costs against the claimant and found the motion was not properly verified pursuant to Rule 60Q-6.124(3)(a) as it was not signed or executed under oath with an affirmation that the facts or matters stated in the document are true.
Summary: The JCC found that since the Employer/Carrier’s motion was not verified as required by the Rule, the claimant had no obligation to timely respond to avoid a determination that the allegations of the motion are true as provided by the Rule 60Q-6.124(3)(b). The JCC emphasized that the motion must be signed or executed under oath and, in this case, the motion was not signed and is not “verified” since it contained no such signature or execution under oath.
The JCC found that, left with nothing more than the unsworn and unverified Motion to Tax Costs, the Employer/Carrier failed to meet its burden to establish entitlement to the costs it seeks.
Geraldo Jaimes v. Camoco LLC/AIG Property Casualty
JCC Spangler; Tampa District; Order Date: August 11, 2016
OJCC Case: 16-004038EDS; D/A: 11/6/2015
Claimant’s Counsel: Steven M. Myers
Employer/Carrier’s Counsel: David K. Beach
Briefly: DEATH BENEFITS; PROPER PERSON PER F.S. §440.17 – JCC Spangler denied the Joint Motion and Stipulation to appoint a proper person without prejudice, pending involvement of a court of competent jurisdiction pursuant to F.S. §744.301 and F.S. §744.3025.
Summary: The JCC took into account the discretion afforded a JCC under F.S. §440.17 to appoint a proper person to receive settlement funds, but found the facts of this particular case require the involvement of a court of competent jurisdiction to determine whether a guardianship should be established on behalf of a minor child.
The JCC noted F.S. §744.301 requires the intervention of said court in any matter wherein a parent or natural guardian consummates any settlement on any claim on behalf of their minor children that exceeds the aggregate amount of $15,000.00.
Additionally, the JCC noted that F.S. §744.3025 requires the involvement of a guardian ad litem to protect the child’s interests when the settlement of a minor’s claim exceeds $50,000.00.
The JCC noted the proposed settlement is $120,000.00, inclusive of attorney’s fees and costs, and found that conditions for involvement for a court of competent jurisdiction exist.
Paula Bustamante v. CT Partners Executive Search, Inc./CHUBB Group of Insurance Companies
JCC Kerr; Miami District; Order Date: August 11, 2016
OJCC Case: 12-001533MGK; D/A: 6/2/2011
Claimant’s Counsel: Barry Pemsler
Employer/Carrier’s Counsel: Kip Lassner
Briefly: ATTORNEY’S FEES – JCC Kerr ordered the Employer/Carrier to pay $6,825.00 in attorney’s fees based upon a $325 per hour attorney fee rate and 21 hours of attorney time spent securing benefits for the claimant.
Summary: The JCC found that claimant’s counsel secured payment of impairment benefits in the amount of $12,692.88 resulting in a statutory fee of $96.15 which is unreasonable under the facts of this case.
The JCC reduced the claimed 21.5 hours by 0.5 hours and determined 21 hours of attorney time was spent securing benefits.
Claimant’s counsel argued that he is entitled to a rate between $300-$350 per hour and that $300 per hour would be appropriate. The JCC concluded that an hourly rate of $325 is reasonable under the facts of this case and found that while the issues were not complex, claimant’s counsel had no choice but to litigate the issue as the Employer/Carrier failed to provide benefits to the claimant despite having actual knowledge of entitlement to the same.