FL Case Law Summaries – 9/26/16
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JCC ORDERS
Juanita McKeon v. Lee County School Board/Johns Eastern Company, Inc.
JCC Weiss; Ft. Myers District; Order Date: September 15, 2016
OJCC Case: 11-007145JAW; D/A: 7/28/2010
Claimant’s Counsel: Bill B. Berke
Employer/Carrier’s Counsel: Stefan V. Bunecky
Briefly: AVERAGE WEEKLY WAGE – JCC Weiss granted the claim for an increase in the average weekly wage and found that a bonus was earned during the 13 weeks prior to the industrial accident and the entirety of the bonus should be included in the average weekly wage.
Summary: The JCC found that a bonus of $352.30 should be included in the average weekly wage as the claimant received the bonus during the 13 weeks prior to the industrial accident.
The JCC found that, had the bonus been paid three weeks earlier, it would have been prior to the beginning of the 13 week period, in which case the bonus would not have been included in the average weekly wage. The JCC noted there was no merit or performance component to the bonus and the evidence showed the claimant did not actually earn any part of the bonus during the fiscal year, rather, the bonus was paid only if there was sufficient money set aside by the Employer as per the terms of the contract. Further, the JCC noted the Employer controlled when during the fiscal year the bonus would be paid and that all employees received a bonus if they were employed during the pay period in which the bonus was paid.
Tameika Hanson v. ARC Broward, Inc./York Risk Services Group
JCC Hogan; Ft. Lauderdale District; Order Date: September 16, 2016
OJCC Case: 15-023926GBH; D/A: 6/18/2015
Claimant’s Counsel: Kevin R. Gallagher
Employer/Carrier’s Counsel: Derrick E. Cox
Briefly: ONE-TIME CHANGE – JCC Hogan denied the claim for a one-time change in physician to Dr. Edward Suarez and found the adjuster timely responded to the request for a one-time change.
Summary: Claimant’s counsel argued that on October 13, 2015, he faxed the carrier a request for a one-time change of treating physician for the claimant. The JCC reviewed the evidence and rejected this argument and found no faxes were received by the Carrier from claimant’s counsel on October 13, 2015. The JCC accepted the testimony of the adjuster that she did not receive a written request for a one-time change of physicians until February 4, 2016, and responded to the request the very next day.
The JCC noted F.S. §440.13(2)(f) requires the claimant to first submit a written response and then allow the carrier five days to respond.
Here, the JCC found the Employer/Carrier responded to the request timely and, therefore, Dr. Suarez was not deemed the one-time change in physician and his opinion was not admissible. The JCC accepted the medical opinions of Dr. Feanny and found the requested medical treatment, including aquatic therapy, physical therapy, and pain management, is not medically necessary.
Sherman Adams v. Vision Quest National Ltd./Crum & Forester
JCC D’Ambrosio; West Palm Beach District; Order Date: September 16, 2016
OJCC Case: 16-002179MAD; D/A: 5/21/2015
Claimant’s Counsel: Alan Aronson
Employer/Carrier’s Counsel: Andrew Borah
Briefly: MISREPRESENTATION DEFENSE – JCC D’Ambrosio found the claimant made false, fraudulent or misleading statements in deposition in order to secure workers’ compensation benefits in direct violation of F.S. §440.09(4)(b) and F.S. §440.105(4).
Summary: The claimant was employed as a child care worker at a shelter for Department of Children & Families and had the responsibly of mentoring, counseling, providing life skills and monitoring children in their homes. The JCC reviewed the claimant’s testimony as well as the testimony of various witnesses testifying on behalf of the Employer/Carrier, and found the claimant’s testimony that he was never reprimanded for unprofessional behavior at work was false, fraudulent, or misleading, and was made in order to secure workers’ compensation benefits. The JCC found the claimant had received verbal reprimands from the Employer and had been told by the Employer not to engage in certain activities including yelling and calling children names.
The JCC noted the claimant argued that any statements in the claimant’s deposition regarding prior reprimands could not have been made for securing workers’ compensation benefits since, at that time, he was still receiving workers’ compensation benefits and the claim had not been denied. The JCC rejected this argument and found it was clear from the Record that the claimant had two Petitions for Benefits pending.
Dora Llontop v. Ralph Lauren/CNA Insurance, and Corvel Corporation
JCC Holley; Jacksonville District; Order Date: September 16, 2016
OJCC Case: 15-013978WRH; D/A: 6/14/2015
Claimant’s Counsel: Steven Wilson
Former Claimant’s Counsel: Rayo Moreno & Kevin Gallagher
Employer/Carrier’s Counsel: Thaddeus Harrell
Briefly: ATTORNEY’S FEES – JCC Holley awarded former counsel for the claimant an attorney’s fee via a quantum meruit theory in the amount of $1,171.43 to be paid out of the $8,200.00 statutory fee permitted from the settlement amount of $74,500.00.
Summary: The claimant’s current counsel argued the claimant did not sign a written contract for the instant date of accident with the claimant’s former counsel and, therefore, there was no valid attorney fee lien. However, current counsel also acknowledged that an attorney-client relationship can be created by implied communication and action.
The JCC found there was at least an implied contract entered into by the claimant and her former attorney for the relevant accident date. The JCC found the signed contract of representation between the claimant and former counsel for two other claims satisfied the requirement that there was at least an implied understanding that the payment of attorney’s fee was contingent upon recovery.
The JCC found that termination of the prior attorney’s services was not “for cause” and that former counsel performed services significant in reaching settlement of the claim.
The JCC utilized the length time of representation to determine a fair split of fees as no other method was easily determinable or argued. The JCC noted former counsel represented the claimant for almost one month and that the statutory fee of $8,200.00 divided by seven months of legal representation resulted in the amount of fee awarded $1,171.43.
Adalberto Guardado v. Suances Enterprises, Inc./Sedano’s/Gallagher Basset Services, Inc.
JCC Medina-Shore; Miami District; Order Date: September 19, 2016
OJCC Case: 16-005057SMS; D/A: 12/11/2015
Claimant’s Counsel: Steven L. Miller
Employer/Carrier’s Counsel: Christopher L. McClure
Briefly: ONE-TIME CHANGE IN PHYSICIAN – JCC Medina-Shore ordered the claimant is entitled to a one-time change in physicians to Dr. Hodor.
Summary: The parties disagreed as to the statutory deadline for the Employer/Carrier to timely complete authorization of the alternative orthopedic doctor. The claimant argued the Employer/Carrier had until the fifth day, a Sunday. The Employer/Carrier argued that since the fifth day fell on a Sunday, they had until Monday to file a timely response.
The JCC took into account Rule 60Q-6.109 and various case law authority and found the DCA has held in Hinzman v. Winter Haven Facility Operations, LLC, 109 So. 3d 256 (Fla. 1st DCA 2013), the five day language in F.S. §440.13(2)(f) refers to five consecutive or calendar days. Accordingly, the JCC found the Employer/Carrier failed to timely respond to the claimant’s request and responded one day late. The claimant is entitled to the right of selection to a one-time change in physician.
Olga Leon de Mesa v. Dollar Tree Stores, Inc./Sedgwick CMS
JCC Castiello; Miami District; Order Date: September 19, 2016
OJCC Case: 14-015941GCC; D/A: 3/14/2014
Claimant’s Counsel: William Haro, Kimberly Hill
Employer/Carrier’s Counsel: Warren Brown
Briefly: APPELLANT ATTORNEY FEES – JCC Castiello awarded the sum of $7,500 to appellate counsel, Kimberly Hill, following a global settlement wherein the parties requested a remand from the Florida Supreme Court.
Ralph Velez v. City of Zephyr Hills/Gallagher Bassett Services, Inc.
JCC Rosen; St. Petersburg District; Order Date: September 19, 2016
OJCC Case: 15-027769SLR; D/A: 9/11/2015
Claimant’s Counsel: Tonya A. Oliver & George B. Cappy
Employer/Carrier’s Counsel: Tim Jesaitis
Briefly: PRESUMPTION UNDER F.S. §112.18; INTENTIONAL INJURY F.S. §440.09(3) – In this presumption claim, JCC Rosen rejected the Employer/Carrier’s argument that the claimant “intentionally” injured himself by failing to take his medications as prescribed by the doctors.
Summary: The parties agree the presumption under F.S. §112.18 applies to this claim and the Employer/Carrier has not presented sufficient evidence to rebut the presumption. However, the Employer/Carrier asserted the claimant “intentionally” injured himself under F.S. §440.09(3), by failing to take the medications as prescribed by the doctors.
The JCC found the Employer/Carrier failed to present a preponderance of evidence to support this defense and noted the claimant testified there was a period of time before his heart attack where the prescribed medications had a negative effect. The JCC accepted the claimant’s testimony that he would stop taking his medications but kept in contact with this doctor who regularly adjusted the medications.
The JCC found that while it may appear the claimant was negligent in taking his medication, these actions did not rise to the level of intent to injure himself and, therefore, the defense of willful intent to injure under F.S. §440.09(3) is denied as it applies to this presumption claim.
Hercilia Ramos v. Miami-Dade County School Board/Gallagher Bassett Services, Inc.
JCC Almeyda; Miami District; Order Date: September 19, 2016
OJCC Case: 16-005893CMH; D/A: 12/18/2013
Claimant’s Counsel: Mark Touby
Employer/Carrier’s Counsel: Michael Hernandez
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Almeyda ordered the Employer/Carrier to authorize an evaluation by a dermatologist for skin complaints occurring at the time of injury/exposure.
Summary: The claimant was injured when she went into a classroom kitchen with several ovens which were being self-cleaned and noticed particles in the air and a strong chemical odor that irritated her so that she had to leave the classroom. An allergy specialist recommended a dermatological evaluation for the lesions on the claimant’s nose.
The JCC found it is clear the claimant’s skin condition was present from the onset of exposure at work and was treated and examined on the date of accident. In fact, the JCC found that in every medical contact, the claimant has made mention, if not complained of, a skin disorder on her nose, and to date the claimant has not had a physician specializing in dermatology evaluate the condition.
The JCC rejected the Employer/Carrier’s position that there is no objective medical evidence of the need for a dermatologist. The JCC found this defense totally overlooked the medical evidence from the hospital that the claimant’s condition at the time of the visits included “bumps” on her nose. The JCC found the medical evidence supports the need for a dermatological evaluation due to the accident/exposure.
Patrice Gutierrez v. The Health Center of Daytona Beach/Premier Group Insurance
JCC Anderson; Daytona Beach District; Order Date: September 19, 2016
OJCC Case: 16-006247WWA; D/A: 11/5/2015
Claimant’s Counsel: Matthew E. Romanik
Employer/Carrier’s Counsel: W. Rogers Turner, Jr.
Briefly: NOTICE OF INJURY – JCC Anderson concluded the claim is barred because the claimant did not provide timely notice of the injury within thirty days after the date of initial manifestation of the injury.
Summary: The JCC noted the claimant was an LPN who prevented a patient from falling and in doing so, alleged an accident.
The JCC found that although the claimant informed her supervisor there was an “incident” involving a patient shortly after it happened, the JCC accepted the evidence presented by the Employer/Carrier that at no time following the incident did the claimant tell her supervisor that she was injured in any way. The JCC found the testimony of the Employer witnesses, including the claimant’s supervisor and director of nursing, was straightforward, truthful, and credible.
Additionally, the JCC concluded the claimant was aware of the nature, seriousness, and probable compensable character of the injury when it allegedly occurred.