FL Case Law Summaries – 9/16/16
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1ST DCA ORDERS
Great Cleaning Corporation/Ascendant etc. v. Carmen Bello
Appeal of the Order from JCC Almeyda
DCA Order Date: September 6, 2016
Case: 1D15-5776; D/A: 5/6/2015
Appellant’s Counsel: Kimberly J. Fernandes
Appellee’s Counsel: Ramon Malca & Jeffrey I. Jacobs
Briefly: AVERAGE WEEKLY WAGE – The 1st DCA reversed JCC Almeyda’s determination of the average weekly wage and found that although the claimant had been working full-time for the Employer/Carrier for three weeks prior to the accident, is it undisputed that she worked in one employment for the Employer/Carrier for substantially the whole of the 13 weeks prior to the accident. For that reason, the average weekly wage must be calculated using the method set forth in F.S. §440.14(1)(a), resulting in one-thirteenth of the total amount of the wages earned in such employment during the 13 weeks prior to the week of the date of accident.
Summary: Here, the claimant worked part-time for the E/C during the first 10 weeks of the 13 weeks prior to the accident. Three weeks prior to the accident, she began working full-time for the E/C. The JCC accepted the claimant’s argument that the AWW should be calculated using only the earnings from her full-time work for the E/C because prior to the 13 week period, the claimant established a pattern of full-time work.
The 1st DCA held the JCC erred and noted the statute was amended in 2003 and eliminated the reference to “full-time” hours of employment. Thus, in accordance with the change in law, and contrary to the JCC’s findings, the application of paragraph (a) is not dependent on the evidence of “full-time hours of employment.” Instead, the proper analysis begins with the determination of “the employment” in which the injured worker was working on the date of accident.
The DCA referred to the Supreme Court decision of Walmart Stores v. Campbell, 714 So. 2d 436 (Fla. 1998), holding that the plain language of the statute controls and that paragraph (a) applies “in all cases where a claimant has worked in one employment for substantially the whole of 13 weeks prior to an industrial accident but has worked in a concurrent employment for only a portion of the 13-week period.”
JCC ORDERS
Victoria O’Neal v. Motel 6/Liberty Mutual Insurance
JCC Pitts: Orlando District; Order Date: September 2, 2016
OJCC Case: 14-003734NPP; D/A: 1/19/2014
Claimant’s Counsel: Dennis Smejkel
Employer/Carrier’s Counsel: Walter G. Benjamin
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Pitts denied the claim for medical treatment and found that no further treatment is reasonable, medically necessary or causally related to the compensable accident.
Summary: The JCC accepted the opinions of the authorized provider, Dr. Broom, and the Employer/Carrier’s IME, Dr. Jeffrey B. Friedman, that claimant reached maximum medical improvement with a 0% permanent impairment rating and no permanent work restrictions causally related to the compensable injury. The JCC also accepted the opinions of Dr. Broom and Dr. Friedman that no further treatment is reasonable, medically necessary or causally related to the compensable accident.
The JCC rejected the opinion of Dr. James K. Shea, the claimant’s IME physician, because Dr. Shea’s opinions regarding causation were predicated upon a history that the claimant had no prior back problems or complaints. The JCC found the history given by the claimant to Dr. Shea was not supported by the evidence contained in the medical records which revealed prior low back complaints and problems.
The JCC noted F.S. §440.09(1) that a workers’ compensation injury must be established within a reasonable degree of medical certainty based on objective relevant medical findings and the accidental compensable injury must be the major contributing cause of any resulting injuries. The JCC found the burden of proof on this issue is on the claimant, and it is not an affirmative defense to be established by the Employer/Carrier.
Elicia Marshall v. Help at Home Homecare, LLC/Patriot Risk Services
JCC Beck; Sarasota District; Order Date: September 2, 2016
OJCC Case: 15-017641DBB; D/A: 6/20/2015
Claimant’s Counsel: Rosemary B. Eure
Employer/Carrier’s Counsel: Hermes Eraclides
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME; MISREPRESENTATION DEFENSE – JCC Beck accepted the claimant’s testimony over contrary evidence, and rejected the misrepresentation defense and the defense that the claimant voluntarily limited her income.
Summary: The JCC noted the claimant denied neck or back problems prior to her accident, but testified she was involved in a prior motor vehicle accident where she was rendered unconscious. The Employer/Carrier raised the misrepresentation defense and alleged the claimant had prior neck and back pain when she was treated at the emergency room following the motor vehicle accident and failed to disclose this prior neck and back pain on her post-hire medical questionnaire, at deposition, and to her authorized treating physicians.
The JCC reviewed the prior emergency records and recognized the claimant’s denial of prior neck or back problems is arguably false and misleading. However, the JCC accepted the claimant’s testimony that she did not recall reporting neck or back pain and found the claimant did not knowingly or intentionally make false or misleading statements.
The JCC found the Employer/Carrier did not establish a voluntary limitation of income defense because there was no evidence the Employer offered claimant any jobs during the period of time in dispute. The JCC accepted the claimant’s testimony that she was under the mistaken impression that the Employer would call her with available jobs. The JCC also found the claimant’s refusal of two jobs offered to her was justified as the work offered was outside her restrictions or would require her to work 12 hour shifts, which she was unable to do in order to care for her children. The JCC noted the claimant had never worked 12 hour shifts previously.
Leonardo Larios v. Corodo Corporation/North American Risk Services and Seabright Insurance Company
JCC Forte; Ft. Lauderdale District; Order Date: September 2, 2016
OJCC Case: 04-020060IF; D/A: 7/1/2002
Claimant’s Counsel: D. Robert “Bobby” Wells
Employer/Carrier’s Counsel: Robert B. Griffis
Briefly: ATTORNEY’S FEES – JCC Forte denied entitlement to attorney’s fees and costs and rejected the claimant’s position that he is entitled to a fee that relates back to a 2011 Petition for Benefits.
Summary: A Petition for Benefits was filed on October 10, 2011, requesting follow-up care with Dr. Curcione. The Employer/Carrier filed a response on October 19, 2011, indicating that Dr. Curcione remained authorized and that the last visit the claimant had was on October 4, 2011.
Claimant’s counsel argued he is entitled to a fee related to the 2011 Petition for Benefits because doctor appointments were eventually scheduled by the Employer/Carrier. The JCC rejected this argument and noted the date of the Employer/Carrier’s Response to the Petition.
Juan Alvarez v. Sun City Produce, Inc./Gallagher Bassett Services, Inc.
JCC Anderson; Panama City District; Order Date: September 2, 2016
OJCC Case: 10-026550WWA; D/A: 10/11/2010
Claimant’s Counsel: Mark A. Touby
Employer/Carrier’s Counsel: Jorge A. Pena
Briefly: ATTORNEY’S FEES – JCC Anderson entered an abbreviated final evidentiary order finding claimant’s counsel is entitled to a reasonable fee from the Employer/Carrier for $20,000 and taxable costs. The JCC found the fee amount includes time spent proving fee entitlement.
William Espino-Ramos v. P&G Pavers, Inc./Bridgefield Employers Insurance Company
JCC Dietz; Sebastian-Melbourne District; Order Date: September 2, 2016
OJCC Case: 15-025479RLD; D/A: 10/12/2015
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: K. Kay Dodd
Briefly: MISREPRESENTATION DEFENSE – JCC Dietz denied the claim for benefits and found the claimant violated F.S. §440.09(4)(a) and F.S. §440.105(4)(b) for making false oral or written statements in order to obtain workers’ compensation benefits.
Summary: The JCC found that after his accident, the claimant provided oral and written statements describing how the accident occurred and that he had never had prior surgery or prior lumbar problems. The JCC noted the claimant denied any previous history of low back pain to Dr. Kevin Chaitoff, pain management specialist, and did not report any prior lumbar treatment or injuries to Dr. Kenneth Jarolem, orthopedic surgeon, although he did admit to a prior motor vehicle accident and a cervical fusion. The JCC also found the claimant denied any history of cervical pain to Dr. Carlos Azaret, a neurologist.
The JCC found the claimant intentionally misrepresented his physical condition and described the claimant’s detailed prior medical history, including treatment for neck and back complaints, severe radiating symptoms, and persistent headaches. The JCC noted the claimant previously underwent cervical and lumbar MRIs which revealed bulging disks, disk desiccation, infringement on the thecal sac, as well as disc herniation and stenosis. The JCC also noted the claimant underwent prior cervical surgery.
Additionally, the JCC found that one of the two stories provided orally or in writing to medical providers describing the accident was a misrepresentation; either the claimant fell off a ladder, or slipped and fell while grabbing a hose.
Mauricio Mujica v. Catalina Hotel & Beach Club/Continental Indemnity Company
JCC McAliley; Port St. Lucie District; Order Date: September 2, 2016
OJCC Case: 13-017383RDM; D/A: 6/10/2013
Claimant’s Counsel: Monica de Feria Cooper
Former Claimant’s Counsel: Juan Lucas Alvarez
Employer/Carrier’s Counsel: Barbara K. Case
Briefly: ATTORNEY FEE LIEN – JCC McAliley found prior claimant’s counsel is entitled to a quantum meruit attorney fee based on one third of the guideline attorney’s fee from the settlement and found that prior claimant’s counsel’s representation did bear fruit in evaluation of the case once settlement discussions began during subsequent counsel’s representation.
Summary: The JCC found that prior claimant’s counsel was discharged without cause, and although prior claimant’s counsel did not feel a settlement was in claimant’s best interests at that time, the JCC found prior claimant’s counsel’s services resulted in a one third impact on the ultimate settlement value. The JCC noted that prior claimant’s counsel represented the claimant for over 13 months during which the claimant received over $100,000 in benefits.
Robert Nofal v. Tavern on the Bay, Inc./RetailFirst Insurance Company, Summit
JCC Humphries; Jacksonville District; Order Date: September 6, 2016
OJCC Case: 04-014864RJH & 04-016508RJH; D/A: 10/23/2002
Claimant’s Counsel: Keith Warnock
Employer/Carrier’s Counsel: Clay L. Meek
Briefly: EMA; SANCTIONS – JCC Humphries denied the Motion to Strike the EMA physician, but awarded sanctions and found counsel for the Employer/Carrier inappropriately sent a letter to the Expert Medical Advisor. The JCC found this letter amounted to ex parte communication with the EMA.
Summary: The JCC found counsel for the Employer/Carrier inappropriately sent a letter to the Expert Medical Advisor physician through the physician’s wife and office manager, informing the EMA physician of an upcoming status conference with the Court and suggesting the EMA physician “might wish to be present in support of the prepayment invoice charges….” The JCC found this letter amounted to ex parte communication with an Expert Medical Advisor and thwarts the process and independence of the EMA.
The JCC granted the Motion for Sanctions against the Employer/Carrier and found the EMA physician shall be allowed to keep the sum of $1,150 as a prepayment of his deposition at the expense of the Employer/Carrier and found the sanction is necessary to deter repetition of this conduct or comparable conduct by others similarly situated.
However, the JCC denied the claimant’s Motion to Strike the EMA provider and found the claimant failed to establish any prejudice, change in the opinions of Dr. Scott, or other adverse result flowing from the conduct about which he complains.
Aristides Marcos Rojas v. Los Temerarios International/Fireman’s Fund Insurance Company
JCC Medina-Shore; Miami District; Order Date: September 7, 2016
OJCC Case: 16-000705MSM; D/A: 10/5/2015
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Leticia Coleman
Briefly: JURISDICTIONS; WASHOUT SETTLEMENT – JCC Medina-Shore found she had jurisdiction to consider approval of the pro se washout based upon her finding that both the claimant and Employer were in Florida at the time they entered into the contract of employment. The JCC denied the washout without prejudice to consider a more detailed listing of future medical care.
Summary: The JCC noted the claimant’s accident occurred in Oklahoma, but the workers’ compensation claim was filed in Florida. The JCC found the contract of employment was entered into by the parties on a telephone call when the claimant agreed to his wages and schedule. The JCC accepted the claimant’s testimony that he was in a city in Florida at the time of this phone call, although he could not recall which city. The JCC also found the Employer was in Miami, Florida, at the time of the phone call. The JCC rejected the E/C’s argument that the contract of employment was made during an earlier phone call while the claimant was residing in Mexico.
The JCC cited F.S. §440.09 providing that an “injury occurring outside the State of Florida is compensable under Florida Workers’ Compensation Law if: (a) the contract of employment was made in Florida; (b) the Employer’s place of business or the Employee’s residence is in Florida; (c) the employment was not for services to be rendered exclusively outside of Florida.”
The JCC also noted the claimant suffered serious and complicated injuries as a result of the work accident when he was struck by a stray bullet through his left wrist, abdomen, and left leg. The bullet remains inside the claimant’s thoracic spine. The claimant also suffered a clot in his left leg and damage to the lumbar spine.
The claimant settled his case for $30,000 and understands he may be owed past indemnity and medical benefits but indicated his desire to settle. The JCC reviewed the 2006 U.S. Life Tables, and determined the claimant has a life expectancy of 33 years. The JCC found it is clear the claimant’s future medical treatment will far exceed the $25,000 in future medical care estimated by Dr. Escoto. The JCC denied the Joint Petition for Settlement without prejudice in order to examine a more detailed listing from Dr. Escoto of the medical care claimant will need in the future.
Rebecca R. Rose v. Geico/Broadspire
JCC Sojourner; Lakeland District; Order Date: September 7, 2016
OJCC Case: 10-003205MES; D/A: 2/1/2010
Claimant’s Counsel: Mark G. Capron
Employer/Carrier’s Counsel: Bryan A. Lowe
Briefly: ATTORNEY’S FEES – JCC Sojourner awarded claimant’s counsel a fee of $13,365.00 based on 48.6 hours of attorney time at an hourly rate of $275 and noted no response to the Verified Petition was filed by the Employer/Carrier.