FL Case Law Summaries – 8/17/16
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JCC ORDERS
James C. Miller v. Eden Site Development, Inc./Crum & Forster and United States Fire Insurance Company
JCC Pitts; Orlando District; Order Date: August 12, 2016
OJCC Case: 14-025897NPP; D/A: 8/6/2014
Claimant’s Counsel: Thomas A. Vaughan
Employer/Carrier’s Counsel: Michael S. Waranch
Briefly: MISREPRESENTATION; PTD; SHELTERED EMPLOYMENT – JCC Pitts denied the misrepresentation defense and awarded permanent total disability benefits. The JCC based his decision on his personal observation of the claimant’s candor, demeanor, and body language while testifying live. The JCC also found the claimant’s current job is “sheltered employment”.
Summary: The JCC accepted the claimant’s live testimony over that of the Employer witnesses with regard to his activities related to scrapping and his explanation about receiving rent and food out of the income he earning from scrapping.
With regard to the PTD claim, the JCC found the claimant is illiterate with a limited education and has significant vocational handicaps. The JCC accepted the expert opinion of the vocational provider, John Roberts, that claimant would be unemployable in the open market that exists within fifty miles from his home. The JCC noted the claimant’s documented unsuccessful attempts to find work and Mr. Roberts’ opinion that claimant’s current employment constitutes “sheltered employment.”
In finding that the current employment is “sheltered,” the JCC noted the Employer has provided accommodations to include the claimant’s completely flexible schedule, allowing him to arrive late and leave early from the job site at his own discretion, work at his own pace, no real duties other than flagging, and no apparent supervision or oversight.
Despite making this finding, the JCC commended the Employer for the lengths to which they have gone in their efforts to accommodate the claimant’s recovery from his injuries.
Karen Mitchell v. One Blood, Inc./FCCI Insurance Group
JCC Anderson; West Palm Beach District; Order Date: August 12, 2016
OJCC Case: 15-009962WWA; D/A: 3/13/2012
Counsel for FCCI: Diane B. Hernandez
Counsel for Zenith: Robin Ross
Briefly: CLAIM FOR CONTRIBUTION – JCC Anderson denied the claim for contribution and found FCCI failed to carry its burden of showing that an accident or injury contributed to the compensable disability and occurred during the period Zenith provided workers’ compensation coverage for the Employer.
Summary: The JCC noted the claimant was injured on March 13, 2012, when she slipped and hurt her left ankle at work. FCCI, the workers’ compensation carrier for that period of time, administratively paid medical and indemnity benefits. Eventually, FCCI also accepted responsibility for the left knee, low back, and other conditions. The claimant continued to work for the Employer and on July 1, 2012, Zenith began providing workers’ compensation coverage.
The claimant never filed a Petition for Benefits against Zenith, nor filed a Petition for Benefits alleging a date of accident other than March 13, 2012. FCCI filed the Motion for Contribution based on alleged injuries occurring on January 20, 2014, and sometime in June 2014.
The JCC noted the claimant was not called to testify at hearing and the allegations in the Motion for Contribution were inconsistent with the reports of the physical therapist and treating physician. The JCC found that FCCI failed to carry its burden to show that an accident or injury contributed to the compensable injury that occurred during the period Zenith provided workers’ compensation coverage.
Justo Alberto Osorio (deceased) v. Colors Construction/Guarantee Insurance Company
JCC Rosen; West Palm Beach District; Order Date: August 12, 2016
OJCC Case: 12-021749TMB; D/A: 7/26/2012
Claimant’s Counsel: Mark D. Dickstein & Mark Touby
Employer/Carrier’s Counsel: Tara Schlairet
Briefly: ATTORNEY’S FEES – JCC Rosen ordered the Employer/Carrier to pay Mr. Dickstein an attorney’s fee of $133,893.75 for securing benefits based upon 357.05 hours of attorney time at a rate of $375 per hour.
Summary: JCC Rosen found that JCC Basquill previously presided over the final merits hearing and ordered the Employer/Carrier liable for payment of indemnity benefits using an average weekly wage of $560 and ordered the medical benefits. The JCC found that many of the claims that were the subject of a prior final hearing were intertwined with collateral issues concerning criminal fraud and contract law, as well as immigration and tax issues. The JCC found this was an extremely unusual case and required extensive litigation and discovery.
The JCC found Mr. Dickstein to be a superior attorney and noted affidavits submitted from several attorneys who practice on insurance matters not related to workers’ compensation claims asserting that the reasonable hourly rate in the South Florida community ranges from $375-550. The JCC found Mr. Dickstein had overcome strenuous defenses to his claim by several defense attorneys.