FL Case Law Summaries – 8/8/16
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1ST DCA ORDERS
John O’Connor v. Indian River County Fire Rescue/Johns Eastern Company, Inc.
Appeal of the Order from JCC Robert Dietz
DCA Order Date: August 2, 2016
Case: 1D15-4986; D/A: 1/10/2015
Appellant’s Counsel: Michael J. Winer & Geoffrey Bichler
Appellee’s Counsel: William H. Rogner
Briefly: APPELLATE SANCTIONS – On Motion for Rehearing and Rehearing En Banc, the 1st DCA withdrew their prior opinion of May 20, 2016, which sanctioned Appellant’s counsel for their lack of candor and required them to pay fees incurred by Appellees, and substituted an opinion admonishing Appellant’s counsel, but withdrawing the sanction to pay fees.
Summary: The 1st DCA found that Appellant’s counsel attempted to use a cost order appeal in order to obtain a second presentation of an argument concerning a fee order and at every opportunity Appellant’s counsel had prior to filing the initial brief, they failed to make it clear to the DCA that the appeal solely involved the fee order.
The DCA explained that the improper use of an appeal as a second chance to obtain review of a fee order is troublesome, and more concerning was counsel’s failure to adequately apprise the Court that the Appellant had two pending proceedings before the DCA, both challenging the same order, despite having multiple opportunities to do so.
In the DCA’s original opinion, they sanctioned Appellant’s counsel for lack of candor by requiring them to pay fees incurred by the Appellees. On reconsideration, the DCA determined that their admonishment in the contents of the opinion was a sufficient sanction and withdrew their order requiring Appellant’s counsel to pay fees incurred by the appellees.
JCC ORDERS
Tomas Cardinal v. Spartan Masonry/Chartis Insurance
JCC Kerr; Miami District; Order Date: July 28, 2016
OJCC Case: 06-005245MGK; D/A: 1/24/2005
Claimant’s Counsel: Deirdre DiBiaggio
Employer/Carrier’s Counsel: James Price
Briefly: 20% PENALTY ON SETTLEMENT – JCC Kerr denied the claim for penalties and found the claimant’s contention that a 14-day deadline was negotiated by the parties for the payment of settlement funds and that the parties intended a penalty clause was without support.
Summary: The JCC found that although there could be a number of reasons why one party may need payment of settlement funds within a certain timeframe, this fact alone, does not imply an agreement to payment of a penalty if the payment is not timely made. The JCC noted that where the parties are represented by counsel, they have the ability, in an arms’ length negotiation, to agree to specific terms of settlement.
In the present case, the JCC found there was no ambiguity in the settlement release and no evidence of any actual negotiations regarding a penalty clause between the parties for failure to timely pay the settlement funds.
The JCC found that a review of the emails between counsels shows the initial offer was for payment within 30 days. Claimant responded that he wished to be paid in 14 days, and the Employer/Carrier thereafter agreed. The JCC found no reason was given as to why claimant wished to be paid in 14 days and no consequences for late payment were negotiated. The JCC found the settlement release simply had no penalty clause.
Maria Oxford v. Oasis Outsourcing, Inc./ESIS WC Claims
JCC Rosen; West Palm Beach District; Order Date: July 28, 2016
OJCC Case: 14-000765TMB, 14-000771TMB D/A: 9/19/2013
Claimant’s Counsel: Ala Alikhani
Employer/Carrier’s Counsel: Marie Tranakas
Briefly: ATTORNEY’S FEES – JCC Rosen ordered the Employer/Carrier to pay to the claimant’s prior attorney, Lyle B. Masnikoff, a reasonable fee based on the number of hours spent on the claim in light of the benefits secured. The JCC found that determination of the amount of the fee based on the statutory fee schedule is too difficult to determine because of ongoing medical care.
Summary: The JCC noted that the specific amount of the fee ultimately agreed to by the parties was $1,200 and that an hourly rate applied in this case. The JCC found that determination of the amount of the fee based on the statutory fee schedule is too difficult to determine because of ongoing medical care.
James E. Gray v. Department of Corrections/Division of Risk Management
JCC Humphries; Jacksonville District; Order Date: July 28, 2016
OJCC Case: 14-026822RJH; D/A: 2/14/2013
Claimant’s Counsel: Christopher R. Cumberland
Employer/Carrier’s Counsel: Barbara J. Glas
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Humphries granted the claim for authorization of treatment for the claimant’s right hip and found the claimant suffered a compensable injury and per the pretrial stipulations, the compensable body parts included the right hip. The JCC also found the carrier cannot contest whether or not the accident is the major contributing cause of the injury once compensability of the injury has been established.
Summary: The JCC rejected the defense raised by the Employer/Carrier premised upon the major contributing cause of the current need for treatment for the claimant’s hip, because the Employer/Carrier previously stipulated to the compensability of that condition, both in the joint stipulation and the pretrial stipulation. The JCC cited the case of Cespedes v. Yellow Transportation, Inc., 532 So. 2d 1236 (Fla. 1st DCA 2013), for authority on this issue.
However, the JCC also noted the Employer/Carrier can challenge whether there is a causal relationship between any requested treatment and the compensable injury, but found the Employer/Carrier failed in its burden to provide medical evidence that the causal connection between the claimant’s hip injury and the requested treatment has been broken.
The JCC noted the claimant has been unable to obtain authorization of any specific treatment and, therefore, he is unable to determine whether the need for further care is related to the workplace accident since no specific care has been recommended. The Judge of Compensation Claims ordered the Employer/Carrier to authorize a return visit for the claimant with the previously authorized physician so that the physician may address whether he refuses to treat the claimant and, if he does not refuse to treat the claimant, the physician shall make treatment recommendations for the compensable right hip injury.
Hazel White v. Walmart/Sedgwick CMS
JCC Lazzara; Tallahassee District; Order Date: July 29, 2016
OJCC Case: 14-007981JJL; D/A: 3/31/2014
Claimant’s Counsel: William A. Kempner
Employer/Carrier’s Counsel: James N. McConnaughhay
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME – JCC Lazzara denied the claim for TPD benefits from May 29, 2014, through April 21, 2015, and found the claimant failed to prove that the work injury contributed to her wage loss after her termination due to claimant’s decision not to look for any work in the labor market.
Summary: The JCC found the claimant was truthful in her responses to the questions and appeared candid in her testimony. Nevertheless, the JCC found the totality of evidence established the claimant returned to work following the date of accident and was terminated for reasons unrelated to her injury.
The JCC recognized that indemnity benefits are not necessarily barred after an injured worker is terminated for reasons unrelated to the work injury and that a job search is not a requirement to prove a causal connection between the work injury and resulting loss of injuries, but may be a pertinent factor in determining whether the claimant has satisfied the burden of proving the nexus between the work injury or disability and loss of earnings. The JCC cited the case of Barfield v. Universal Forest Products, 813 So. 2d 285 (Fla. 1st DCA 2002).
The JCC found the claimant decided not to look for any work in the labor market following her termination from working with the Employer, and denied TPD benefits for the period of time as requested as the credible evidence showed the claimant was able to earn and did in fact earn income with the Employer at her pre-injury wages prior to termination.
Additionally, the JCC found “although, claimant’s termination appears to this tribunal to have been unwarranted based upon the fact that it was not a pattern of conduct by the claimant, nevertheless, temporary indemnity benefits cannot be awarded as a punitive sanction for an unfair termination.”
Carol Pinkney v. Miami-Dade County School Board/Gallagher Bassett Services, Inc.
JCC Almeyda; Miami District; Order Date: July 29, 2016
OJCC Case: 03-002956ERA; D/A: 10/16/2002
Claimant’s Counsel: Robert Krebs
Employer/Carrier’s Counsel: Michael Hernandez
Briefly: WEIGHT LOSS PHYSICIAN; MEDICAL NECESSITY – JCC Almeyda denied the claim for a weight loss physician and found the claimant was previously furnished with the services of a registered dietician, but was non-compliant and missed multiple appointments, did not keep the food intake diary required for the program, and did not reveal her daily consumption of alcohol to the dietician.
Summary: The JCC denied the claim for a weight loss physician and found that notably absent in the evidence was an actual recommendation for a physician versus a dietician for a weight loss program at the time the subject Petition was filed. Further, the JCC rejected the opinions of the claimant’s expert physician, Dr. Schiff, for several reasons, including the fact that Dr. Schiff was not fully apprised of the severity of the claimant’s alcohol problem and past history of receiving care from a dietician. Additionally, the JCC noted that Dr. Schiff recommended admission into a weight loss program in which he has an invested financial interest, including dispensing of food/nutritional supplements which are marketed by him.
The JCC found the claimant willfully continued to abuse alcohol against the instructions of her authorized physician, and is now seeking a specialist for care similar to that previously offered, which failed because of her voluntary abuse of alcohol which she refused to discontinue against the medical advice of her physician.
Angela Spickney v. Double Envelope/Travelers Insurance
JCC Hill; Gainesville District; Order Date: July 29, 2016
OJCC Case: 14-028832MRH; D/A: 3/17/2011
Claimant’s Counsel: Matthew Carillo
Employer/Carrier’s Counsel: Thomas McDonald
Briefly: PERMANENT TOTAL DISABILITY – JCC Hill granted the claim for permanent total disability benefits and found the claimant established she has permanent work-related physical restrictions and performed an exhaustive, good faith, unsuccessful job search; and although her permanent work-related physical restrictions are not alone totally disabling, they preclude her from engaging in at least sedentary employment when combined with vocational factors.
Summary: The JCC awarded PTD benefits and noted the claimant is 51 years old with a 12th grade education and has employment history as a fast food worker, farm laborer, and machine operator. She sustained a compensable knee injury with a 6% permanent impairment rating and was assigned permanent work restrictions including occasional bending, occasional walking, no squatting, frequent alternating between sitting and standing, and lifting no more than 15 pounds.
The JCC also noted the claimant has not worked since 2011, and from 2012 through 2016 she consistently looked for work and made at least 1,325 job contacts without ever being offered work. The JCC found that both vocational experts agreed the claimant conducted an exhaustive job search and looked for jobs for which she has some experience. The Employer/Carrier did not offer the claimant job search assistance or retraining.
Further, the JCC found that both vocational experts agree the claimant has no keyboard skills, no email skills, no computer skills, and no transferable skills for sedentary work. The JCC found the claimant’s need to frequently change positions, her absence from the work place for five years, and her expected absences of 1-2 days a month due to her work-related injuries make it very difficult to place the claimant in a sedentary job.
Mario Valdes v. Doyle Electric Services, Inc./ESIS, ACE USA
JCC Hill; Miami District; Order Date: July 29, 2016
OJCC Case: 16-002350CMH; D/A: 10/8/2015
Claimant’s Counsel: Kevin R. Gallagher
Employer/Carrier’s Counsel: Isabel Alcocer
Briefly: ONE-TIME CHANGE – JCC Hill, by Summary Final Order, granted the claimant’s request to authorize Dr. Edward Suarez as claimant’s one-time change of physician and found there was no factual dispute that the carrier received a written request during the course of treatment for a one-time change and failed to authorize a change within five days after receipt. The JCC found the carrier forfeited its right of selection of a physician as a matter of law.
Summary: The JCC also found that a plain reading of the statute, F.S. §440.13(2)(f) reveals there is no verbiage in the subject statute requiring the claimant to select a physician within the same specialty as that of the current treating physician.
Phyllis M. Wendell v. Enterprise/York Risk Services Group
JCC Weiss; Ft. Myers District; Order Date: July 29, 2016
OJCC Case: 15-016954JAW; D/A: 6/2/2015
Claimant’s Counsel: Michael K. Horowitz
Employer/Carrier’s Counsel: Henry J. Roman
Briefly: COMPENSABILITY; IDIOPATHIC FALL – JCC Weiss denied the claim for compensability of injuries sustained in a fall at work and found the Employer/Carrier established a pre-existing cause for the claimant’s fall, which placed the burden on the claimant to prove that work was the major contributing cause of her fall. The JCC found the claimant failed to meet her burden of proof. Further, the JCC found there was no evidence the claimant struck any object during her fall.
Summary: The JCC noted the claimant is 85 years old and was walking in a parking lot at work and the next thing she remembers is someone standing over her asking if she was ok. The claimant suffered a closed head injury resulting in a scalp hematoma on her forehead and a subarachnoid hemorrhage on her left frontal brain by CT scan. The JCC found that prior to the 2015 fall at work, the claimant fell down stairs in 2012, and in 2013 she suffered a fall while playing ping pong with children. Further, the JCC noted that claimant admitted to being diagnosed with peripheral neuropathy and deep vein thrombosis on her lower extremity.
The JCC cited the cases of Caputo v. ABC Fine Wine & Spirits, 93 So. 3d 1097 (Fla. 1st DCA 2012) and Hernando County v. Dokoupil, 667 So. 2d 275 (Fla. 1st DCA 1995), and found that in the absence of an established competing cause of an employee’s accidental injuries, the employee satisfies the major contributing cause requirement of F.S. §440.09(1) and need not show an increased risk of falling associated with the employment to establish the requisite causal connection between the employment and the accident.
However, in this case, the JCC found the Employer/Carrier did demonstrate a competing cause for the accident and, accordingly, the major contributing cause burden remained on the claimant. The JCC found the Employer/Carrier proved the claimant has pre-existing gait disturbances, balance problems, peripheral neuropathy, and problems with walking based upon the testimony of various physicians. The JCC found that without any evidence from the claimant or the doctors that something incidental to her employment caused her to fall, the claimant was unable to meet her burden of proof that work was the major contributing cause of her fall.
Further, the claimant was unable to prove her employment posed an increased risk and found she did not strike any object during her fall. The JCC found the claimant did not show the parking lot was a risk different than necessarily encountered in non-employment life.
James Roberts v. General Electric Company/Electric Insurance Company
JCC Weiss; Ft. Meyers District; Order Date: July 29, 2016
OJCC Case: 15-028783JAW; D/A: 10/13/2015
Claimant’s Counsel: Steven Goddard
Employer/Carrier’s Counsel: Frank C. Wesighan
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME – JCC Weiss awarded temporary partial disability benefits from May 16, 2016, through the present and found there was no evidence of work restrictions prior to May 16, 2016, although the date of accident is October 13, 2015, as the claimant initially refused the Employer’s offer of treatment.
Summary: When denying TPD from the date of accident until May 16, 2016, the JCC found the claimant was essentially non-compliant with medical treatment following the accident as he refused the Employer’s offer of treatment. Accordingly, there is no authorized physician or medical evidence to establish any presence of work restrictions until the claimant saw his IME physician on May 16, 2016. The claimant testified he changed his mind and later requested medical treatment from the Employer.
When awarding TPD from May 16, 2016, to the present, the JCC rejected the Employer/Carrier’s defense that the claimant refused employment under F.S. §440.15(6) and found there is no evidence the Employer/Carrier offered the claimant work after the date of accident, or that claimant refused the offered employment. The Employer argued the claimant’s actions were tantamount to quitting his job as he requested his tools and paycheck and told the Employer he wanted to go home to see his doctor. The claimant testified he did not quit. The JCC found that what is not in dispute is that the Employer never offered the claimant work since the date of accident.
Gladys Schroeder v. Stein Mart/Travelers Insurance
JCC Holley; Jacksonville District; Order Date: August 2, 2016
OJCC Case: 15-025884WRH; D/A: 9/22/2015
Claimant’s Counsel: Michael O’Rourke
Employer/Carrier’s Counsel: Larry Wang
Briefly: TPD BENEFITS; VOLUNTARY LIMITATION OF INCOME – JCC Holley granted the claim for temporary partial disability benefits from October 15, 2015, the day claimant was terminated by the Employer, to the present and found the claimant sufficiently met her burden of showing the causal connection between the industrial accident and her displacement from her normal job.
Summary: The JCC found the facts demonstrate that claimant sustained an injury at work for which she received medical treatment and work restrictions were assigned. The JCC also found the claimant is not at maximum medical improvement. Accordingly, the JCC found the claimant met her burden of proof to establish a causal connection between the industrial accident and her injury and her loss of income.
The JCC also found that on October 5, 2015, the Employer offered the claimant work within her restrictions, but placed a condition on the employment whereby the claimant had to report to work by October 12, 2015. However, on that date the claimant was still in Costa Rica with a non-refundable return plane ticket for October 14, 2015. The JCC found the claimant’s inability to return back to her job in Jacksonville by October 12 was justifiable in light of the fact the Employer had previously been given the claimant’s flight itinerary. Thus, the JCC found the Employer no longer offered suitable work. The JCC found the elements of the defense of voluntary limitation of income were not proven from October 15, 2015, to the present.
Likewise, the JCC denied the defense of willful misconduct and found the defense was not timely raised on the uniform pretrial stipulation. The JCC also found the claimant’s conduct of not returning to work on October 12, 2015, was not sufficient to trigger a finding of willful misconduct. The JCC found the Employer/Carrier did not sufficiently show the claimant’s action of traveling to Costa Rica and not being able to return in time arose to the level of willful misconduct when considering the flight itinerary with the return date was previously provided to the Employer.
Barbara Sceals v. Habitat for Humanity/Gallagher Bassett Services, Inc.
JCC Hill; Gainesville District; Order Date: August 2, 2016
OJCC Case: 14-026146MRH; D/A: 9/22/2012
Claimant’s Counsel: Lance Avera & Jared Comstock
Employer/Carrier’s Counsel: Michael Arington
Briefly: PERMANENT TOTAL DISABILITY – JCC Hill granted the claim for PTD and inferred the only reason the Employer/Carrier administratively accepted the claimant as PTD less than 24 hours prior to the trial was to ensure it could unilaterally stop payments and continue seeking medical evidence to challenge claimant’s PTD evidence. The JCC concluded it was appropriate to exercise discretion to adjudicate claimant’s PTD status on the merits notwithstanding the Employer/Carrier’s argument that the JCC lacked jurisdiction to enter an order adjudicating the claimant as PTD because the Employer/Carrier administratively accepted the claimant as PTD prior to trial.
Summary: Although the Employer/Carrier administratively accepted the claimant as PTD prior to trial, the JCC required the parties to try the PTD issue. The JCC found that based upon the uncontested medical and vocational evidence, the claimant was at overall MMI and met each of the three methods of establishing entitlement to permanent total disability benefits under the case of Blake v. Merck & Company, 43 So. 3d 882 (Fla. 1st DCA 2010).
The JCC cited case law authority, including the case of Fair-Way Restaurant v. Fair, 425 So. 2d 115 (Fla. 1st DCA 1982), for the holding that the JCC has jurisdiction and discretion to adjudicate a claimant PTD following administrative acceptance by the Employer/Carrier.
The JCC noted that, when there is no adjudication of claimant’s entitlement to PTD benefits, an Employer/Carrier may unilaterally suspend PTD benefits without the heightened burden of proof necessary to obtain modification of a court order.
John Prim v. Southeastern Grocers, LLC/Sedgwick CMS
JCC Rosen; St. Petersburg District; Order Date: August 2, 2016
OJCC Case: 16-011022SLR; D/A: 3/5/2016
Claimant’s Counsel: Natalie Adams
Employer/Carrier’s Counsel: Morgan Indek
Briefly: ATTORNEY’S FEE ON ADVANCE – JCC Rosen denied the claim for an attorney’s fee from the Employer/Carrier for securing an advance.
Summary: The JCC found there is no statutory basis for awarding a fee for securing an advance and cited the case of City of Miami v. Mazur, 449 So. 2d 986 (Fla. 1st DCA 1984).
Further, the JCC found that in this case, the Employer/Carrier did not resist the Motion for Advance, but requested better documentation for the need for the amount of the requested advance and paid within an appropriate time frame thereafter.