FL Case Law Summaries – 8/25/16
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JCC ORDERS
Elizabeth Hernandez v. Best Cleaning Specialist, Inc./Summit/Retail First Insurance Company
JCC Massey; Tampa District; Order Date: August 15, 2016
OJCC Case: 15-008938MAM; D/A: 8/15/2013 & 1/15/2014
Claimant’s Counsel: Pro Se
Employer/Carrier’s Counsel: Ivette Linares-Moreno
Claimant’s Former Counsel: Bradley Douglas
Briefly: ATTORNEY’S FEES; CHARGING LIEN – JCC Massey awarded former claimant’s counsel an attorney’s fee in the guideline amount of $2,250.00 payable by the claimant out of her settlement funds.
Summary: During the course of Mr. Douglas’ representation of the claimant, he secured a settlement offer of $15,000 inclusive of fees and costs. Ultimately, the case settled for $20,000. The JCC found that Mr. Douglas should be entitled to a statutory guideline fee on the $15,000 offer, but not on the remainder of the settlement.
The JCC could find no basis on which to award an hourly fee as suggested by claimant’s former counsel, at the rate of $350 per hour for 17 hours of attorney time. The JCC found that this fee would significantly deplete the settlement funds so that it would not be “equitable,” which is a governing standard for charging liens. In fact, the JCC found it would be excessive under the circumstances.
James Hart v. PGT Industries/Zenith Insurance Company
JCC Beck; Sarasota District; Order Date: August 15, 2016
OJCC Case: 13-021467DBB; D/A: 8/1/2003
Claimant’s Counsel: Brian O. Sutter
Employer/Carrier’s Counsel: Richard S. Thompson
Briefly: MOTION TO EXCLUDE DOCTOR OPINION – JCC Beck denied the claimant’s request to exclude the opinions of Dr. Cassady on the grounds the doctor’s fee exceeds the maximum allowable reimbursement under the Florida Workers’ Compensation Health Care Provider Reimbursement Manual.
Summary: The claimant cited F.S. §440.13(13)(b) and decisional case law from the Appellate Court disqualifying IMEs and authorized healthcare providers that charge in excess of the medical fee schedule.
The JCC rejected the claimant’s argument and pointed out that Dr. Cassady executed a written agreement to provide the additional services referenced in the statute in exchange for payment in excess of the fee schedule. The claimant argued this agreement was entered into many months after the claimant was seen by Dr. Cassady and was done based upon his objections to Dr. Cassady’s testimony.
The JCC noted the cases cited by the claimant are distinguished from the present case as Dr. Cassady is a treating provider, not an IME physician, and unlike the case law cited by the claimant, the Employer/Carrier presented evidence that the carrier had an agreement with Dr. Cassady to provide additional services so as to allow a greater fee. The JCC found “the timing of the agreement does make it somewhat suspect, but as pointed out by the Employer/Carrier there is no provision within the statute requiring the agreements to be procured prior to treatment.”
Further, the JCC noted that in the case of AT&T Wireless Services, Inc. v. Castro, 896 So. 2d 828 (Fla. 1st DCA 2005), the Appellate Court allowed the IME to retroactively adjust his fee to avoid disqualification. Here, while there was no evidence that Dr. Cassady reduced his fee to the fee schedule amount, there was evidence that he entered into an agreement contemplated by the statute to allow him to charge more than the fee schedule allows, albeit retroactively.
Eric White v. Springer Peterson Roofing & Sheet Metal/FRSA Self-Insurers, Inc.
JCC Lorenzen; Tampa District; Order Date: August 15, 2016
OJCC Case: 14-029364EHL; D/A: 11/6/2014
Claimant’s Counsel: Bradley Smith
Employer/Carrier’s Counsel: John Brady
Briefly: TEMPORARY PARTIAL DISABILITY; MAJOR CONTRIBUTING CAUSE – The JCC appointed an Expert Medical Advisor, but determined the Employer/Carrier was not entitled to assert a major contributing cause defense to either the compensability of the claimant’s right shoulder or need for surgery. Based on the EMA opinion, the JCC ordered the Employer/Carrier to pay temporary partial disability benefits and authorized the requested arthroscopic surgery.
Summary: The JCC accepted the opinion of the Expert Medical Advisor, Dr. Wasylik, that claimant had not attained maximum medical improvement and had work restrictions due to his compensable injury. Additionally, the JCC accepted Dr. Wasylik’s opinion that surgery to his right shoulder was reasonable and medically necessary.
The JCC determined the Employer/Carrier was not entitled to assert a major contributing cause defense as no physician opined the claimant had any pre-existing shoulder conditions and the Employer/Carrier offered no evidence the claimant received any medical care for a shoulder complaint before the accident or had complained of shoulder pain or restrictions before the accident. Further, the JCC noted the Employer/Carrier stipulated to compensability of the claimant’s shoulder injury and provided medical care for more than 120 days without denying compensability.
Additionally, the JCC found the Employer/Carrier offered no evidence the claimant had a subsequent accident, causing his current shoulder condition or need for surgery, and no evidence that claimant developed a new condition or disease after the initial compensability of the shoulder injury was accepted. As such, the Expert Medical Advisor was not asked questions regarding the major contributing cause of the need for any future medical care for the claimant’s right shoulder.
Richard Castor v. Okaloosa County BOCC/Johns Eastern Company
JCC Winn; Pensacola District; Order Date: August 16, 2016
OJCC Case: 12-017729NSW; D/A: 9/15/1997
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Roderic G. Magie
Briefly: PTD BENEFITS – JCC Winn denied the claim for permanent total disability benefits and found the claimant’s decision to retire severed the nexus required to support his claim for PTD benefits and the claimant failed to re-establish that nexus.
Summary: The JCC noted that while the claimant suffered a compensable injury in 1997, he continued working for the Employer for eleven years until he was terminated in 2011 and made the decision to retire at that time at the age of 57. The JCC found that although there is no dispute the claimant has significant injuries as a result of the industrial accident, permanent total disability benefits are not provided to individuals who, while injured on the job, continue to work for years thereafter until they are terminated from such employment for reasons totally unrelated to their injuries, decide thereafter not to seek other employment and then five years later, having not made any effort to return to work, claim they are unable to work and are entitled to PTD benefits.
The JCC also found the claimant is capable of engaging in sedentary work considering the expert vocational opinion in evidence.
David J. Demaine v. Lowe’s/Sedgwick CMS
JCC Beck; Sarasota District; Order Date: August 16, 2016
OJCC Case: 16-002483DBB; D/A: 9/19/2014
Claimant’s Counsel: Ivan D. Voronec
Employer/Carrier’s Counsel: Michael L. Peterson
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Beck denied the claim for left hip replacement and found the industrial injury and its sequelae are not the major contributing cause of any need for claimant’s left hip replacement.
Summary: The JCC accepted the opinions of the authorized physicians, Dr. White and Dr. Silverstein, over that of the claimant’s IME, Dr. Vlahos. The JCC found that Drs. White and Silverstein examined the claimant on many occasions and reviewed the claimant’s actual MRI films, while Dr. Vlahos saw the claimant only once, did not review the diagnostic films, and did not review Dr. White’s records. Additionally, the JCC found that both Drs. White and Silverstein continue to perform hip surgeries, while Dr. Vlahos has not performed a hip surgery in the last ten years.
It was Dr. White’s opinion the industrial injury was not the major contributing cause of the need for left hip replacement and that claimant had a pre-existing osteoarthritis condition shown on the MRI that could not have developed within months of the accident. Dr. White also opined that avascular necrosis was pre-existing.
Likewise, Dr. Silverstein found that most of the claimant’s symptoms are the result of tendinitis/bursitis. Dr. Silverstein opined that a hip replacement was not the correct procedure for the claimant and did not believe a hip replacement would help. Further, Dr. Silverstein opined the major contributing cause of a hip replacement, if performed, would be claimant’s pre-existing problems.
Tonya Johnson v. Adam’s C-Mart, Inc./Mitsui Sumitomo Insurance USA, Inc.
JCC Sojourner; Lakeland District; Order Date: August 16, 2016
OJCC Case: 14-015148MES; D/A: 8/4/2013
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: John Brady
Briefly: MAJOR CONTRIBUTING CAUSE; PSYCHIATRIC CARE – JCC Sojourner denied the claim for authorization of repeat arthroscopic surgery on the knee and found that a second meniscal tear in the claimant’s knee occurred as the result of a subsequent intervening accident. The JCC also found the claimant did not have any psychiatric diagnoses related to her compensable injury.
Summary: The JCC noted the claimant described a subsequent knee injury on June 9, 2015, when her right knee gave out at home in the shower causing her to fall and hit her head. She testified when she went to the hospital she was diagnosed with a new tear of the meniscus.
The JCC found the hospital records support the finding that the claimant blacked out in the shower which resulted in her fall. The JCC found there was no evidence other than the claimant’s unsupported testimony that her compensable knee injury caused her to fall.
The JCC denied the claim for psychiatric care and found the only competent evidence offered on psychiatric care and treatment was that of psychiatrist Dr. Pandya, who opined the claimant did not have any psychiatric diagnoses related to her compensable injury. Further, the JCC found that the opinion of psychiatrist, Dr. Cassady, on psychiatric care did not create a sufficient conflict to warrant the appointment of an Expert Medical Advisor as Dr. Cassady’s opinion was not admitted into evidence and, even so, his opinion was based on claimant’s complaints of head pain, headaches, neck pain and knee pain and Dr. Cassady could not say what contribution these complaints had to the overall diagnosis.