FL Case Law Summaries – 9/21/16
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1ST DCA ORDERS
Law Offices of William F. Souza v. Truly Nolen, Inc./Crawford And Company and Milena Solidad
Appeal of the Order from JCC Castiello
DCA Order Date: September 9, 2016
Case: 1D16-118; D/A: 4/2/2003, 5/18/2003, 5/19/2003
Appellant’s Counsel: William F. Souza
Appellee’s Counsel: Janet M. Greene
Briefly: MOTION TO COMPEL VERIFIED PETITION FOR ATTORNEY’S FEES – The 1st DCA reversed JCC Castiello’s order compelling the claimant to file a Verified Motion for attorney’s fees and found the JCC had no authority to require the filing of a Verified Fee Motion because there is no pending Petition for Benefits and no reservation of jurisdiction or outstanding claim for fees.
Summary: Claimant’s counsel argued that the JCC had no authority to compel the filing of a Verified Motion for attorney’s fees in the absence of a pending Petition for Benefits. The DCA agreed and held that the dismissal of all Petitions divests the JCC of jurisdiction. The DCA found the JCC had no jurisdiction over any particular claim, including a claim for entitlement of attorney’s fees, because all Petitions were dismissed with no reservation of jurisdiction.
The DCA noted the history in this case wherein the JCC specifically found there were no outstanding claims and denied a prior Motion to Dismiss filed by the Employer/Carrier on those grounds.
JCC ORDERS
Patricia A. Ferriola v. Cort Furniture Rental/Hartford Casualty Insurance Company
JCC Pitts; Orlando District; Order Date: September 8, 2016
OJCC Case: 84-000017MPP; D/A: 1/6/1984
Claimant’s Counsel: Glen D. Wieland
Employer/Carrier’s Counsel: Larry Spencer
Briefly: MEDICAL NECESSITY; FIBROMYALGIA – JCC Pitts dismissed the Petition for medical treatment recommended by Dr. Salinas and related to fibromyalgia, including medical massage, IV infusion, vitamin B12 injections, and the pain medication Subsys as not reasonable nor medically necessary.
Summary: The JCC accepted the opinion of Dr. James Shea who was appointed as a disinterested doctor under F.S. §440.25(b) for this 1984 date of accident.
The JCC found the IV infusion and vitamin B12 injections are experimental and not reasonably or medically necessary. Further, the JCC found massage therapy is not reasonable nor medically necessary to treat fibromyalgia and that Subsys is not an accepted treatment for fibromyalgia, especially in the high doses recommended in this case.
Howard Smith v. Jacksonville Sheriff’s Office/City of Jacksonville Risk Management
JCC Humphries; Jacksonville District; Order Date: September 8, 2016
OJCC Case: 15-008767RJH; D/A: 11/18/2014
Claimant’s Counsel: John Rahaim
Employer/Carrier’s Counsel: Gregory Lower
Briefly: PRESUMPTION UNDER F.S. §112.18 HEART DISEASE/HYPERTENSION – JCC Humphries granted the claim for compensability of claimant’s heart disease and found the Employer/Carrier established only that the claimant had risk factors for developing coronary artery disease. The JCC denied compensability of claimant’s hypertension and found the claimant failed to establish disability related to the hypertension condition.
Summary: The JCC explained the presumption under F.S. §112.18 is dispositive and must be rebutted by medical evidence that claimant’s heart disease was caused by a specific, non-work related event, factor, or exposure. Here, the JCC found the Employer/Carrier failed to present competent, substantial evidence establishing that the claimant’s coronary artery disease was caused by a specific non-work condition or combination of causes. The JCC found the Employer/Carrier did not successfully rebut the presumption, but merely presented evidence that the claimant suffered from risk factors which could trigger the coronary artery disease.
With regard to the hypertension condition, the JCC found the claimant failed to prove he was disabled as a result of hypertension condition and, therefore, the presumption did not apply.
Ralph Burdeshaw v. State Attorney d/b/a 14th Judicial Circuit/Division of Risk Management
JCC Anderson; Panama City District; Order Date: September 9, 2016
OJCC Case: 09-012332WWA; D/A: 1/18/2008
Claimant’s Counsel: Kristine Callagy
Employer/Carrier’s Counsel: Frank Bozeman
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Anderson found the claimant did not meet the statutory standard for permanent total disability and found claimant failed to establish either of the alternative ways of proving permanent total disability under the case of Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010).
Summary: The JCC applied the three alternative Blake tests to the facts of this case and found the claimant did not prove a permanent medical incapacity to engage in at least sedentary employment within a fifty-mile radius of his residence because there is no medical evidence he is physically incapable of engaging in sedentary work. The JCC also found the claimant’s job search was neither lengthy nor exhaustive. The JCC found the claimant is currently receiving Social Security Disability and in-line-of-duty disability benefits and noted it may not be in the claimant’s best interests to return to work.
Further, the JCC found the claimant’s permanent physical restrictions do not preclude him from engaging in at least sedentary employment when combined with vocational factors. The JCC accepted the E/C’s vocational opinion that, even limiting claimant to sedentary work, the claimant is employable within a fifty-mile radius of his home.
Further, the JCC rejected the claimant’s argument that the Employer/Carrier is estopped from denying permanent total disability benefits because the claimant has been accepted for in-line-of-duty disability benefits based upon his heart disease and hypertension. The JCC cited the case of Mauldin v. State, Dept. of Admin., Div. of Ret., 468 So. 2d 332 (Fla. 1st DCA 1985) and found the Mauldin court was not a workers’ compensation case and that the definition of permanent total disability for purposes of state retirement system at issue in Mauldin differed from the definition of permanent total disability in Chapter 440.
Further, the JCC found there is no evidence the claimant is presumptively PTD based on a listed injury.
Kevin L. Mulligan v. Continental Airlines/Gallagher Bassett Services, Inc.
JCC Condry; Orlando District; Order Date: September 9, 2016
OJCC Case: 16-006071WJC; D/A: 4/12/2011
Claimant’s Counsel: Dixie Tisha Brady
Employer/Carrier’s Counsel: Patrick John McGinley
Briefly: STATUTE OF LIMITATIONS – JCC Condry found the statute of limitations period had not run in this case and that the Employer/Carrier is estopped from asserting the statute of limitations defense.
Summary: The JCC found the Employer/Carrier established a prima facie showing the subject Petition for Benefits was filed beyond the limitations period provided under F.S. §440.19. However, the JCC also found the claimant was not on notice of the appropriate statute of limitations and the Employer/Carrier is estopped from asserting the statute of limitations defense
The JCC accepted the claimant’s testimony at trial as credible and trustworthy that if he had received information setting forth the applicable statute of limitations, he would have signed or returned such information to the servicing agent as requested. The JCC accepted the claimant’s testimony that to his knowledge he was not placed on notice of the limitations.
The JCC specifically found that evidence of what was reportedly mailed to the claimant on April 12, 2011, is of suspect reliability due to a lack of consistency between certain documents attached to the deposition transcript of the Employer/Servicing Agent representatives and the documents that claimant testified he received or retained from the Employer/Servicing Agent. The JCC noted the confusion lies in how the claimant could receive a copy of the informational brochure sent in Spanish which on its face reflected a revision date that was almost three years after the date the materials were reportedly mailed to the claimant. The JCC found this confusing evidence was not explained by the Employer/Carrier representatives who were deposed.
Additionally, the JCC found the adjuster’s representation to the claimant that the statute of limitations had run on his case was a misrepresentation, albeit unintentional. The JCC found it was due to the erroneous representation that the claimant failed to obtain authorized medical care during the period of time sufficient to toll the statute of limitations. The JCC found the Employer/Carrier is estopped from asserting the statute of limitations defense in this case by falsely informing the claimant that the statute of limitations had run when it had not.
Jennifer Lynn Morgan v. Swift Transportation Company/Gallagher Bassett Services, Inc.
JCC Hill; Gainesville District; Order Date: September 9, 2016
OJCC Case: 14-003463MRH; D/A: 5/1/2013
Claimant’s Counsel: Lynne Shigo
Employer/Carrier’s Counsel: Jamey Rodgers
Briefly: TRAVEL EXPENSES; MEDICAL TREATMENT OUT OF STATE – JCC Hill granted the claim for authorization of travel to Denver, Colorado, as soon as possible to include airline, hotel, transportation, and medical providers, for evaluation and surgery to resolve complications in a right-sided amputation.
Summary: The claimant has traveled from Florida to Colorado regularly for follow-up treatment with an authorized medical physician. The Employer/Carrier authorized the treatment and paid travel expenses.
During the claimant’s March 2016 follow-up treatment in Colorado, it was recommended that claimant be evaluated by Dr. Schnur for possible surgery to excise a neuroma and prepare a new socket on claimant’s right-sided amputation. It is uncontested that it is medically necessary for the claimant to be evaluated to determine whether she needs surgery for neuroma and that Dr. Schnur remains authorized.
The JCC awarded the treatment for the claimant with Dr. Schnur in Colorado and noted the Employer/Carrier exercised its right to select claimant’s authorized treating physician and selected Dr. Schnur. The JCC found Dr. Schnur is authorized and has performed numerous successful surgeries on the claimant and the claimant has established a doctor-patient relationship with him and has deep trust in his skill.
Michel A. Hernandez v. Allied Building Products Corp./Liberty Mutual Insurance Company
JCC Hogan; Ft. Lauderdale District; Order Date: September 9, 2016
OJCC Case: 11-001936GBH; D/A: 7/6/2010
Claimant’s Counsel: Mark Touby
Employer/Carrier’s Counsel: Adam Levy
Briefly: ATTORNEY’S FEES – JCC Hogan awarded an attorney’s fee in the amount of $166,215.00 based upon 474.9 hours of attorney time at a rate of $350 per hour.
Summary: The JCC noted the parties agreed the value of the benefits secured equals $1,193,228.37, and that the statutory fee is $120,072.84. Further, the JCC found the statutory attorney’s fee in this case would result in an hourly rate of $252.84 which the JCC determined to be unreasonable.
The JCC found the fee customarily charged in the locality of similar legal services is between $250-$450 per hour and that a reasonable hourly rate in this case is $350. The JCC also found the claimant’s counsel is well known in the legal community and enjoys an outstanding reputation.
Maria Soto v. Polk County School Board/Johns Eastern Company, Inc.
JCC Sojourner; Lakeland District; Order Date: September 12, 2016
OJCC Case: 13-019199MES; D/A: 9/19/2011
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: Bettina Carrier
Briefly: STATUTE OF LIMITATIONS – JCC Sojourner found the statute of limitations has expired and all benefits are barred.
Summary: The adjuster testified that no indemnity had been paid to the claimant and that the last medical for which payment was made was for date of service January 31, 2013. All pending Petitions were dismissed by a final compensation order dated February 17, 2014, and, thereafter, the first Petition for Benefits filed was on September 10, 2015, which was more than one year after the last provision of medical or payment of indemnity.
The JCC noted correspondence from the adjuster to the claimant which contained a paragraph explaining the statute of limitations. There was no evidence offered that the claimant did not receive this letter. The letter was written in English, but the claimant testified she could ask her son to translate important papers for her.
Thus, the JCC found the statute had expired prior to the filing of the September 10, 2015, Petition.
Oscar Maldonado v. Waste Management, Inc./Gallagher Bassett Services, Inc.
JCC Weiss; Ft. Myers District; Order Date: September 12, 2016
OJCC Case: 15-003246JAW; D/A: 1/26/2015
Claimant’s Counsel: Salvatore J. Sicuso
Employer/Carrier’s Counsel: Sean L. Crosby
Briefly: ATTORNEY’S FEES – JCC Weiss awarded claimant’s counsel a reasonable fee of $53,025.00 based upon a total of 212.1 hours of attorney time at rate of $250 per hour.
Summary: The JCC noted that claimant’s counsel asserted the value of benefits secured was $16,076.57, the appropriate range was $350-415 per hour, and that a reasonable attorney’s fee in this circumstance was $90,387.00, based on 224.3 hours of attorney time. On the other hand, the Employer/Carrier asserted the value of benefits secured was $7,903.91, the appropriate rate was $250 per hour, and that a reasonable attorney’s fee in this circumstance was $27,000.00, based on 108 hours of attorney time.
The JCC also noted the Employer/Carrier conceded that the statutory fee does not result in a reasonable fee under these circumstances.
The JCC reviewed the evidence and accepted the testimony of the Employer/Carrier’s counsel that the appropriate hourly rate was $250 per hour. The JCC reduced the time affidavit of claimant’s counsel by 12.2 hours, leaving the total hours at 212.1 and awarded claimant’s counsel a reasonable fee of $53,025.00.