FL Case Law Summaries – 8/4/16
BY:
To receive daily e-mails with case law summaries, e-mail: Esantos@eraclides.com
1ST DCA ORDERS
Jermaine Davis v. Palm Beach County Sheriff’s Office/USIS
Appeal of the Order from JCC D’Ambrosio
DCA Order Date: July 25, 2016
Case: 1D15-2746; D/A: 7/20/2012, 4/24/2011
Appellant’s Counsel: Barbara B. Wagner & Michael R. Riedhammer
Appellee’s Counsel: Hinda Klein & Thomas G. Regnier
Briefly: NOTICE OF INJURY – The 1st DCA reversed JCC D’Ambrosio and held the 30-day notice requirement under F.S. §440.185(1) does not apply to subsequent accidents under F.S. §440.092(5) that are a “direct and natural consequence of the original injury”, because these injuries do not “arise out of and in the course of employment.”
Summary: The claimant suffered an injury on July 20, 2012, and immediately reported the injury to his Employer and was sent to a doctor. On July 26, 2012, the Employer/Carrier denied compensability of the accident in its entirety on the grounds that the incident did not meet the statutory definition of an accident and that it represented an idiopathic condition. The Employer/Carrier later rescinded the denial and authorized medical treatment. In the interim, on August 17, 2012, the claimant’s car was rear-ended as he was leaving the physical therapy facility he was sent to by his at-the-time unauthorized treating physician.
Litigation regarding responsibility for injuries resulting from the August 2012 motor vehicle accident included the filing of a Petition for Benefits and a subsequent finding by the JCC that “claimant was receiving remedial treatment at the time of his motor vehicle accident pursuant to F.S. §440.092(5).” The JCC found the injury sustained by the claimant in the motor vehicle accident was a direct and natural consequence of the original injury of July 20, 2012. The Employer/Carrier did not challenge this finding, but nevertheless the JCC found the accident was “not compensable under F.S. §440.185(1) for the failure of the claimant to advise the Employer within thirty days after the date of the injury.”
The DCA found the plain language of F.S. §440.185(1), the 30-day notice provision, does not apply to subsequent accidents under F.S. §440.092(5), because the injuries sustained in these accidents do not “arise out of and in the course of employment” and because subsection F.S. §440.092(5) is silent on any reporting requirement. The DCA noted that F.S. §440.092(5) contemplates a circumstance whereby a previously-injured employee suffers a new and subsequent injury which is a “direct and natural consequence of the original injury” and places limits on when those new injuries will become the responsibility of the Employer.
JCC ORDERS
Thomas Porter v. Alsco Linen Services/Alternative Service Concepts
JCC Weiss; Ft. Myers District; Order Date: July 22, 2016
OJCC Case: 15-016339JAW; D/A: 4/17/2015, 6/5/2015
Claimant’s Counsel: Steven Goddard
Employer/Carrier’s Counsel: Mary Cruickshank
Briefly: REPETITIVE TRAUMA; MAJOR CONTRIBUTING CAUSE – JCC Weiss denied the claim for medical and indemnity benefits and found the burden of proof applicable to compensability of a repetitive trauma is major contributing cause pursuant to F.S. §440.09 and that the claimant failed to meet this burden.
Summary: The JCC cited F.S. §440.09, which provides that occupational disease or repetitive exposure claims must be proven by way of major contributing cause.
The JCC found that specifically for repetitive exposure claims, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. The JCC found that clear and convincing evidence is an intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible, the memories of the witnesses must be clear and without confusion, and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy, see Matrix Employee Leasing v. Pierce, 985 So. 2d 631 (Fla. 1st DCA 2008).
In this case, the JCC found the claimant relied on the opinion of Dr. Richards, but that Dr. Richards’ testimony, at best, is equivocal on causation and that Dr. Richards himself admits that with non-traumatic injuries it is difficult to address causation with any degree of medical certainty. Overall, the JCC found Dr. Richards’ opinion on causation was not credible.
Mary M. Jenkin v. Burger King Corporation/St. Paul Travelers Insurance Company
JCC Forte; Ft. Lauderdale District; Order Date: July 22, 2016
OJCC Case: 02-018864IF; D/A: 4/26/1983
Claimant’s Counsel: Eric B. Sandler
Employer/Carrier’s Counsel: Luis F. Estrada
Briefly: MEDICAL NECESSITY – JCC Forte granted the claim for physical therapy and epidural injections and found there was no dispute between the opinions of the Employer/Carrier’s IME and the EMA that the claimant will undeniably require “conventional” physical therapy when she experiences periods of exacerbation.
Summary: The JCC noted that claimant sustained a cervical injury in 1983 and had a subsequent cervical fusion performed by authorized treating neurosurgeon, Dr. Gervin. While claimant has treated with various physicians since her accident, her primary doctor for the past 33 years for this compensable condition has been Dr. Gervin.
Dr. Heldo Gomez was appointed as the Expert Medical Advisor. Dr. Gomez did not feel the treatment recommended by Dr. Gervin was medically necessary because it would only provide temporary relief and would not change her overall condition. Additionally, he opined epidural injections were not medically necessary because the risk associated with the injections outweighed the benefits.
However, Dr. Gomez did agree with the Employer/Carrier’s IME physician, Dr. Pagan, the claimant would experience periods of exacerbation throughout her lifetime that will require brief treatment with “conventional” physical therapy.
The JCC noted the EMA opined that treatment provided by Dr. Gervin was not medically necessary because it was excessive and being provided for Dr. Gervin’s own financial interests. The EMA was very concerned over the fact that Dr. Gervin, by providing therapy in his own office, was guilty of a self-referral and had benefited financially from this arrangement.
The JCC took into account that the opinion of the EMA is presumed correct and can only be overcome by clear and convincing evidence. However, the JCC also found the basis articulated by the EMA for finding the injections not to be medically necessary to be against the manifest weight of the evidence and not justified or reasonable.
The JCC accepted testimony of the claimant as very credible that the epidural injections helped her to perform activities of daily living like driving and going to the gym. The JCC found the claimant never experienced any side effects or problems after having undergone the epidural injections and the claimant is aware of the risk associated with the injections, including death. The JCC accepted the testimony of the claimant that she did not take the risks lightly, but that the injections afforded her more relief than the risk associated with them. The JCC noted the claimant is 78 years old and with the recommendation of the treating physician, she should be able to decide what risk she is willing to take.
Lida Ugarte v. Winn Dixie Logic, Inc./Sedgwick CMS
JCC Lazzara; Miami District; Order Date: July 22, 2016
OJCC Case: 15-025956JJL; D/A: 10/24/2015
Claimant’s Counsel: Jesus E. Ravelo
Employer/Carrier’s Counsel: Isabel M. Alcocer
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Lazzara denied the claim for medical benefits, including provision of medication, MRI, and physical therapy, and found there was insufficient evidence to causally relate the claimant’s neck condition to the work accident or that a cervical MRI would aid in that determination.
Summary: In denying the medical benefits, the JCC found the recommendations regarding cervical MRI and physical therapy for the claimant’s alleged cervical condition were in response to claimant’s subjective complaints of pain only, and not based upon objective findings. The JCC also found the physicians relied upon by the claimant could not testify within a reasonable degree of medical certainty that the claimant’s neck condition is related to her work accident, or that a cervical MRI would aid in that determination.
The JCC cited the case of MDM Corp. v. Wilson, 186 So. 3d 574 (Fla. 1st DCA 2016), as holding a claimant’s subjective complaints of pain alone will not meet the requirements of F.S. §440.09(1), which requires proof that the work injury and its occupational cause are based on objective relevant medical findings within a reasonable degree of medical certainty.
The JCC also found the requested cervical MRI and physical therapy are not medically necessary, based upon the greater weight of the medical evidence which reflects that the EMG and NCV studies were normal and there was no evidence of cervical nerve root problems. The JCC accepted the opinion of the Employer/Carrier’s IME physician, Dr. Pagan, that a cervical MRI is not medically necessary and will not aid in diagnosing the cause of the claimant’s alleged neck complaints.
The JCC also found that claimant’s testimony regarding when she first complained of any neck symptoms related to the work accident is confusing and vague. The JCC found the medical records demonstrate the claimant did not complain of any neck conditions at her first visit to Concentra and it was not until three weeks later that she began to complain of neck problems.
David Gilbert-Brown v. U.S. Water Service Corporation/Continental Indemnity Company
JCC Rosen; St. Petersburg District; Order Date: July 22, 2016
OJCC Case: 15-015731SLR; D/A: 12/31/2014
Claimant’s Counsel: Joseph M. Rooth
Employer/Carrier’s Counsel: Barbara K. Case
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME – JCC Rosen denied the claim for temporary partial disability benefits and found the evidence is clear and uncontradicted that the claimant voluntarily limited his income by moving to North Carolina despite the Employer’s offer of modified work duties post-accident which would have kept the claimant working at full salary, including periodic overtime.
Summary: Based on Wyeth/Pharmer Field Sales v. Toscano, 447 So. 2d 972 (Fla. 1st DCA 1984), the JCC found that claimant failed to “show a causal connection between the loss of employment at pre-accident wages and the industrial accident.”
The JCC found the evidence is clear and uncontradicted that claimant voluntarily limited his income for the period of time that disability benefits are in dispute. The JCC found the claimant’s voluntary termination was the sole cause of changes to his wage earning capacity and that the Employer cooperated to accommodate the recuperating worker.
The JCC found the claimant presented no evidence that he was terminated from the Employer or would have been terminated from the Employer at any time for misconduct or inability to perform his modified job duties.
Donald Robinson v. Max-Pak, Inc./Amerisure Insurance
JCC Sojourner; Lakeland District; Order Date: July 22, 2016
OJCC Case: 12-013080MES; D/A: 11/4/2011
Claimant’s Counsel: Carl Feddeler
Former Counsel for Claimant: Laurie Thrower Miles
Employer/Carrier’s Counsel: Donald D. Kaelber
Briefly: ATTORNEY’S FEES – JCC Sojourner found that claimant’s former counsel, Laurie Thrower Miles, is entitled to $3,038.80 as a reasonable attorney’s fee, based upon an hourly rate of $275 and based upon 11.05 hours of reimbursable attorney time.
Amalia Rojas v. Exotic Blooms Corp. d/b/a Forever Blossoms, Exotic Blooms Corp., Exotic Blooms, Exotic Blossoms Company/Hartford Accident and Indemnity Company, Twin City Fire Insurance Company
JCC Almeyda; Miami District; Order Date: July 25, 2016
OJCC Case: 02-044997ERA; D/A: 11/30/2001
Claimant’s Counsel: Robert Krebs
Employer/Carrier’s Counsel: Kurt Wirsing
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Almeyda denied the claims for neurosurgical evaluation and MRIs of the neck and shoulder and accepted the opinion of Dr. Calvo, the authorized treating orthopedic physician, that the requests for MRIs of the shoulder and neck are not a consequence of the original wrist/hand injury. Further, the JCC found these tests had already been performed and the need to “rule out” the industrial injury as a major contributing cause of the current complaints is no longer applicable.
Summary: The JCC found that Dr. Calvo opined there was a lack of nexus between the shoulder/neck complaints and compensable wrist injury.
The JCC noted the case of Ruiz v. BellSouth Credit, 994 So. 2d 1220 (Fla. 1st DCA 2008), where the First DCA held that the major contributing cause doctrine does not apply to a test or evaluation used for the purpose of determining the etiology of a condition. However, the JCC found the Ruiz decision is not applicable to the present case, as the tests at issue had already been performed and the physician who recommended the tests opined that the results show no nexus to compensable accepted injuries.
The JCC found the claimant failed to prove the requested diagnostic tests were reasonably required by the nature of the workplace injury. The JCC also noted the claimant failed to appear at the final hearing and the JCC had no opportunity to observe her candor or demeanor.
Norman Woods, Jr. v. Charley Toppino & Sons, Inc./SeaBright Insurance
JCC Medina-Shore; Miami District; Order Date: July 25, 2016
OJCC Case: 15-023691MGK; D/A: 10/9/2006
Claimant’s Counsel: D. Robert “Bobby” Wells
Employer/Carrier’s Counsel: Robert B. Griffis
Briefly: MISREPRESENTATION DEFENSE – JCC Medina-Shore denied the claim for authorization of a primary care physician, and also denied the affirmative defenses of misrepresentation and statute of limitations. The JCC found the claimant failed to provide the necessary medical evidence to support his claim and found “case law has clarified that the mere appearance of a compensable injury does not guarantee an injured worker the right to receive medical care for life.”
Summary: The JCC found the compensable injury has healed and there is no need for any palliative care, including periodic visits or further evaluations to ensure the compensable injury is not worsening or in need of further evaluation or treatments.
The JCC found that pursuant to case law, including Echevarria v. Luxor Investments, 159 So. 3d 991 (Fla. 1st DCA 2015), there must be medical evidence supporting the claim for palliative care, notwithstanding the existence of a permanent injury.
The JCC found the medical evidence in the instant case does not support the award of any further palliative care for the claimant’s finger injury despite the 1% permanent impairment rating. The JCC noted that while the claimant was assigned a permanent impairment rating, the doctor was extensively questioned as to whether any palliative treatment was medically necessary and stated that in the absence of objective findings, there was no need for palliative care. The JCC noted that the only medical opinion in evidence was the opinion of Dr. Gilbert, the Employer/Carrier’s IME.
Beverly Heath v. Precisionaire of Florida, Inc./Gallagher Bassett Services, Inc.
JCC Sojourner; Lakeland District; Order Date: July 25, 2016
OJCC Case: 06-035775MES; D/A: 6/2/2006
Claimant’s Counsel: Bill McCabe & Pat T. DiCesare
Employer/Carrier’s Counsel: Claude M. Harden
Briefly: APPELLATE ATTORNEY’S FEES – JCC Sojourner awarded an appellate attorney’s fee to Mr. McCabe at an hourly rate of $350 and an appellate attorney’s fee to Mr. DiCesare at an hourly rate of $300. The JCC found that Mr. McCabe is an appellate specialist who has handled many workers’ compensation appeals and that his expertise is evident in the minimal number of hours claimed for preparation of a successful Answer Brief. The JCC found that Mr. McCabe spent 14.4 hours preparing the Answer Brief for the claimant and that Mr. DiCesare spent a total of 7.6 hours.
Pedro Leon v. CSB Services, Inc./North American Risk Services, Inc. and SeaBright Insurance
JCC Castiello; Miami District; Order Date: July 27, 2016
OJCC Case: 00-027634GCC; D/A: 12/19/2000
Claimant’s Counsel: William Souza
Employer/Carrier’s Counsel: Robert B. Griffis
Briefly: MEDICAL NECESSITY; AUTHORIZED TREATMENT OUT OF COUNTRY – JCC Castiello denied the claim for authorization of an orthopedic physician in Lima, Peru, and found the claimant failed to meet his burden of proof with the presentation of medical evidence of the medical necessity of the requested care. Further, the JCC found the claimant did not demonstrate he lives in Peru full-time and, instead, voluntarily admitted to coming to the United States for medical treatment under Medicaid on a regular basis.
Summary: The JCC acknowledged the claimant suffered a compensable accident in Florida, but is currently living in Peru. The JCC cited the case of AMS Staff Leasing v. Arreola, 976 So. 2d 612 (Fla. 1st DCA 2008) for the holding that an injured worker must typically be provided authorized medical care for his compensable injury in the country where he resides. However, the JCC noted the claimant reported being a “dual national”, holding both Peruvian and American citizenships, but living in Peru, while nevertheless being treated in the United States on a regular basis under Medicaid. The JCC found it was inconsistent for the claimant to request authorized care in Peru, while voluntarily admitting coming to the U.S. for medical treatment under Medicaid on a regular basis. The JCC found the claimant did not demonstrate why the same treatment pattern he utilizes for his medical care under Medicaid would be insufficient for treatment received through workers’ compensation.
Additionally, the JCC found the claimant failed to meet his burden of proof with the presentation of medical evidence of medical necessity for the care at issue. The JCC found the claimant presented no medical evidence, and failed to present lay testimony that the medical necessity of the treatment sought is apparent.
The JCC also found the claimant’s credibility to be compromised and noted the positions advocated by the claimant under the current JCC proceedings contradict those taken in JCC proceedings just one year prior.
Thomas Greg Steverson v. City of Tallahassee/City of Tallahassee
JCC Lazzara; Tallahassee District; Order Date: July 27, 2016
OJCC Case: 15-027235JJL D/A: 4/16/2007
Claimant’s Counsel: Maureen C. Proctor
Employer/Carrier’s Counsel: Christopher J. Dubois
Briefly: MMI; TEMPORARY PARTIAL DISABILITY BENEFITS – JCC Lazzara found the claimant was not at overall MMI and awarded temporary partial disability benefits from October 14, 2015, through the date of hearing. The JCC found the claimant met his burden of establishing a prima facie showing of a causal connection between his compensable injuries and a subsequent loss of income, and that the Employer/Carrier failed to show the claimant refused to work and voluntarily limited his income.
Summary: The JCC found the claimant was not at overall MMI and was receiving pain management, including a series of epidural steroid injections, in order to improve his ability to function. The pain management physician admitted that although the injections are primarily palliative, the injections can also be reviewed as remedial as there are times where there is lasting improvement in functionality.
The JCC determined the claimant is eligible for at least temporary partial disability benefits as his physical and psychiatric conditions related to the compensable injury have impacted his ability to earn pre-injury wages, and noted the physicians have either released the claimant to work with restrictions, or never returned the claimant to work.
The JCC cited the case of Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795 (Fla. 1st DCA 2010), and found the claimant met his burden of establishing a prima facie showing of a causal connection between his compensable injuries and the loss of income and that the Employer/Carrier failed to meet its burden to show the claim refused to work or voluntarily limited his income.