FL Case Law Summaries – 9/23/16
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JCC ORDERS
Glenn Thomas v. City of Jacksonville Sheriff’s Office/City of Jacksonville Risk Management
JCC Holley; Jacksonville District; Order Date: September 13, 2016
OJCC Case: 15-015234WRH; D/A: 8/6/1996
Claimant’s Counsel: Michael P. Clelland
Employer/Carrier’s Counsel: Michael J. Arington
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Holley denied the claim for compensability of coronary artery disease and found the claimant failed to meet his burden to prove he underwent and passed a pre-employment physical without any evidence of the condition claimed.
Summary: The JCC explained that in order to invoke the presumption of compensability under F.S. §112.18, four elements are required: 1. the claimant is a member of a protected class (firefighters, law enforcement, corrections officers); 2. the claimant suffers from a protected condition (hypertension, heart disease, or tuberculosis); 3. the claimant underwent and passed a pre-employment physical without any evidence of the condition claimed; and 4. the condition resulted in disability.
Here, the JCC found the claimant’s 1974 pre-employment physical examination results could not be located despite a diligent search by the Employer. Without the documented results, the JCC considered the claimant’s testimony, which was deemed to be credible, as to having undergone the pre-employment test, passing it, and being hired and accepted by the pension fund. However, the JCC also noted the claimant never actually saw his tests results, and was unable to testify as to what the actual test results did or did not show. Without this information, the JCC found he was compelled to find the claimant failed to meet his burden.
The claimant also alleged that an inference of a clean bill of health could be made by the fact that claimant was hired and admitted into the pension fund. However, the JCC found that employees were hired and admitted into the pension fund despite passing the pre-employment physical test.
Rolando Hernandez v. Sunniland Corporation/Summit
JCC Sojourner; Lakeland District; Order Date: September 13, 2016
OJCC Case: 16-003852MES; D/A: 12/31/2015
Claimant’s Counsel: Frank Clark
Employer/Carrier’s Counsel: David Roos
Briefly: MANAGED CARE – JCC Sojourner dismissed the claim for authorization and payment for medical evaluation and treatment and found the JCC lacks jurisdiction as the claimant failed to exhaust the grievance procedures at the time the Petition was filed as required by statute.
Summary: The Employer/Carrier argued the claimant did not file the proper grievance as he did not use the form sent to him as part of the initial managed care package. The claimant argued that he did send the proper grievance form and that the Employer/Carrier failed to timely respond, resulting in a waiver of the jurisdictional argument.
The JCC found the form utilized by the claimant is virtually identical to the form forwarded in the package to the claimant by the Employer/Carrier and, therefore, rejected the argument the claimant used an improper form. However, the JCC also found the claimant had not exhausted the grievance procedures at the time the Petition was filed. The JCC rejected the claimant’s arguments that the Employer/Carrier’s subsequent failure to respond to the grievance confers jurisdiction over the Petition.
Doiyon Parson v. Cheney Brothers, Inc./Travelers Insurance, Charter Oak Fire Insurance Co.
JCC D’Ambrosio; West Palm Beach District; Order Date: September 13, 2016
OJCC Case: 11-008387MAD, 11-019512MAD; D/A: 10/17/2010
Claimant’s Counsel: William L. Contole
Employer/Carrier’s Counsel: Kurt A. Wyland
Briefly: ATTORNEY’S FEES; E/C’S TIME AND BILLING RECORDS – JCC D’Ambrosio found that defense counsel’s time records and billing records are not relevant to the claimant’s Petition for Attorney’s Fees, are privileged, and are not subject to disclosure.
Summary: The JCC cited various case law and found that billing records of opposing counsel are to be treated as privileged work product and that the parties seeking production must establish that the requested materials are actually relevant to a disputed issue, that the records sought are needed to prepare for the attorney’s fee hearing, and that substantial equivalent material cannot be obtained from another source.
Here, the JCC found that claimant’s counsel did not make a sufficient showing of relevance and/or need of defense counsel’s billing records. The claimant argued that no additional special showing is needed to obtain non-privilege, relevant information, and cited the case of Patton v. Geico General Insurance Company, 190 So. 3d 1047 (Fla. 2016).
In response, the JCC noted that in Patton, the Court held that the hours expended by counsel for the defendant insurance company “in a contested claim for attorney’s fees is relevant to the issue of the reasonableness of time expended by counsel for the plaintiff.” In this case, the JCC found the Employer/Carrier was not contesting the reasonableness of time expended by claimant’s counsel, but instead was contesting whether the billed task was relevant to the particular benefit secured. The JCC found this to be a distinguishing factor from the holding in Patton. The JCC found the billing records of defense counsel were not relevant to the claimant’s Petition for Attorney’s Fees and are privileged and not subject to disclosure.
Theresa Cineus v. The Alfond Inn at Rollins College/Memic Indemnity Company
JCC Sculco; Orlando District; Order Date: September 13, 2016
OJCC Case: 15-004431TWS; D/A: 4/1/2014
Claimant’s Counsel: Monte Shoemaker
Employer/Carrier’s Counsel: Ya’Sheaka Campbell Williams & Wesley J. Heim
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME – JCC Sculco denied the claim for TPD benefits from March 15, 2015, through June 30, 2016, and found the claimant did not report to work and that some of her work search efforts appear unlikely to secure employment. However, the JCC awarded TPD from July 1, 2016, through the date of final hearing and found the evidence presented did not establish that any refusal of employment by the claimant extended past July 1, 2016, more than a year after her termination.
Summary: The JCC found the claimant did not return to work for the Employer after April 6, 2015, and was ultimately terminated. The JCC also noted the human resources manager for the Employer testified the claimant no-called/no-showed for work on various occasions until the date of termination.
The JCC found the claimant’s failure to show up for work prior to her termination could arguably be construed as a refusal of suitable employment, regardless of whether she called in or not. However, the JCC also noted the claimant testified that upon being informed of her termination, she “begged” for her job back and has been looking for work since that time.
The JCC agreed with the Employer/Carrier that some of the claimant’s work search efforts appear unlikely to secure employment, for example, applying to Uber without a car. However, the evidence presented did not establish that any refusal of employment by the claimant extended past July 1, 2016, more than a year after her termination.
Angela Suarez v. Doral Hospitality, Inc./PMA Insurance Company
JCC Weiss; Ft. Myers District; Order Date: September 14, 2016
OJCC Case: 11-023016JAW; D/A: 2/13/2011
Claimant’s Counsel: Monica de Feria Cooper
Employer/Carrier’s Counsel: Sal Richardson
Briefly: ATTORNEY’S FEE – JCC Weiss awarded an attorney’s fee of $2,800.00, and determined claimant’s counsel spent 11.2 hours of attorney time based on a rate of $250 per hour.
Summary: The JCC rejected the Employer/Carrier’s argument that $150 is reasonable and instead accepted claimant’s range of $250-$400 per hour. The JCC noted that some of the time was performed by an attorney with claimant’s counsel’s office who has only been a member of the Bar since 2014.
Rigoberto Solorzano v. Structural Formwork, Inc./Bridgefield Employers Insurance Company
JCC Castiello; Miami District; Order Date: September 14, 2016
OJCC Case: 15-001976GCC; D/A: 11/8/2014
Former Claimant’s Counsel: Michael D. Goldstein
Present Claimant’s Counsel: Paul R. Buechele
Employer/Carrier’s Counsel: Cristina Linares-Obeso
Briefly: ATTORNEY’S FEES; CHARGING LIEN – JCC Castiello ordered claimant’s present counsel to pay claimant’s prior counsel the sum of $1,675.00 in attorney’s fees owed pursuant to the charging lien imposed on the settlement proceeds, and the Employer/Carrier shall remain responsible for any sums not paid by the claimant or present claimant’s counsel. The JCC also determined that the reasonable hourly rate for the charging lien is $375 per hour.
Summary: The JCC found the parties failed to inform prior claimant’s counsel of the washout settlement and failed to protect his charging lien. Accordingly, claimant’s prior counsel sought to have all parties, the Employer/Carrier in particular, held responsible in quantum meruit for all time he has expended in litigation necessary.
Here, the JCC found the charging lien must be assessed against the claimant’s settlement recovery and that prior to being terminated, claimant’s prior counsel dedicated 4.6 hours in successful prosecution of the claimant’s case. The JCC found the $375 hourly rate sought by prior counsel is reasonable and appropriate.
Further, the JCC found that case law authority, including the case of Law Office of James E. Dusek, P.A., v. T.R. Enterprises, 644 So. 2d 509 (Fla. 1st DCA 1994), places responsibility on those who receive notice of a charging lien to pay prior claimant’s counsel – that being the claimant, his counsel, and the Employer/Carrier. The JCC also noted the mediation agreement in this case acknowledged the claimant’s obligation to satisfy the charging lien, but the agreement was only between the claimant and the Employer/Carrier. The JCC noted that claimant’s prior counsel was not a party to the mediation agreement and, therefore, was not bound by it. The JCC found that prior claimant’s counsel may seek recovery from any party who failed to protect his charging lien.
Accordingly, the JCC found the Employer/Carrier, claimant’s present counsel, and the claimant are jointly liable to claimant’s prior counsel for attorney’s fees and that claimant’s present counsel shall pay the sum of $1,675.00 to prior counsel in attorney’s fees owed for the charging lien and costs. The Employer/Carrier shall remain responsible for any sums not paid by the claimant or claimant’s present counsel.
Judith D. Wimbley v. Hillsborough County School Board/Broadspire
JCC Spangler; Tampa District; Order Date: September 14, 2016
OJCC Case: 05-027188EDS; D/A: 5/30/2003
Claimant’s Counsel: Joey O’Quist
Employer/Carrier’s Counsel: Katherine Stone
Briefly: MEDICAL NECESSITY – JCC Spangler ordered authorization of pain management and treatment including those specific recommendations from Dr. Joseph Rashkin for treatment of recurrent carpal tunnel condition.
Summary: The JCC noted that claimant’s carpal tunnel condition is compensable and authorized treatment has been provided by the Employer/Carrier. The JCC found the claimant’s present complaints may be rectified through completion of a successful revision of surgery to address the recurrent left carpal tunnel condition, but according to the authorized pain management physician, Dr. Rashkin, pain complaints may also be successfully treated non-invasively and now the claimant desires to take that approach.
The JCC noted the Employer/Carrier has not authorized the pain management approach, after the claimant cancelled the surgery due to personal issues, and has not authorized any treatment for the claimant’s increasing pain and functional issues in her left wrist. The JCC found this has become a “breakdown in the Employer’s statutory responsibilities” as defined in the statute and must be rectified.
The JCC rejected the opinion of Dr. Greene, the authorized physician who performed initial carpal tunnel surgery, in favor of Dr. Rashkin, the pain management physician’s opinion on the grounds that Dr. Greene clearly based his opinion on his “own theory” of why the carpal tunnel condition recurred, which the JCC found to be undocumented and pure opinion based on Dr. Greene’s own subjective experiences. The JCC found that, “merely saying something will not work, without documenting why it won’t work, does not prove it will not work.”
The JCC found the claimant established a prima facie case of medical necessity of the requested pain management treatment and ordered authorization of Dr. Rashkin’s non-invasive treatment.
Oscar Fernandez v. Swire Properties Limited/Brickell City Center (OCIP)/Nelson Gomez, Inc./ESIS WC Claims
JCC Spangler; Miami District; Order Date: September 14, 2016
OJCC Case: 16-003192EDS; D/A: 12/3/2015
Claimant’s Counsel: Steven Miller
Employer/Carrier’s Counsel: Isabel Alcocer
Briefly: ONE-TIME CHANGE IN PHYSICIAN – JCC Spangler ordered that Dr. Hodor is authorized as claimant’s one-time change in treating physicians even though Dr. Hodor practices in a different specialty from the initial authorized physician.
Summary: The Employer/Carrier objected to the claimant’s choice of an orthopedic physician as a one-time change because the previous physician was an occupational health specialist. The Employer/Carrier argued there must be a demonstration of a medical necessity for an orthopedist before the claimant’s selection of an orthopedist can be validated.
The JCC found the Employer/Carrier’s position is inconsistent with the statute and specifically determined that “medical necessity is not a relevant issue regarding the selection of a physician assuming care.”
James Hunt v. Health First HRMC/USIS
JCC Dietz; Sebastian-Melbourne District; Order Date: September 14, 2016
OJCC Case: 14-023714RLD; D/A: 6/20/2013
Claimant’s Counsel: Jason S. Robbins
Employer/Carrier’s Counsel: Gina M. Jacobs
Briefly: PERMANENT TOTAL DISABILITY BENEFITS – JCC Dietz denied the claim for permanent total disability benefits and found the claimant is not at maximum medical improvement.
Summary: The JCC noted that maximum medical improvement has always been a threshold issue in a permanent total disability case. The JCC cited case law authority for the premise that only if it is determined a claimant is at MMI does a JCC proceed with a determination of whether the claimant has one of the statutorily enumerated conditions that presumptively qualifies the claimant for PTD benefits.
The JCC noted that in this case, neither party indicated on the pretrial that the claimant was at MMI. The JCC found this would leave only statutory maximum medical improvement or subsequent deposition testimony as a basis for meeting the evidentiary threshold for the PTD claim. The JCC also found the First DCA made it clear that “statutory MMI has nothing to do with the employee’s ultimate medical condition or prognosis”, see Matrix Employee Leasing v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011).
The JCC found the medical evidence did not support that the claimant is at MMI and noted various physicians who opined they did not place the claimant at MMI. The JCC found that in the absence of MMI, the claim for PTD is premature.