FL Case Law Summaries – 9/28/16
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JCC ORDERS
Jaime Reyes-Garcia v. P.M. Dunn Construction Company, Inc., Southeast Employee Leasing/Lion Insurance Company, and Packard Claims Administration
JCC Beck; Sarasota District; Order Date: September 20, 2016
OJCC Case: 14-014668DBB; D/A: 6/5/2014
Claimant’s Counsel: Martha D. Fornaris
Employer/Carrier’s Counsel: Anthony M. Amelio
Briefly: MEDICAL NECESSITY; EXPERT OPINION – JCC Beck awarded the claimant a rolling walker and gait belt and accepted the opinion of the physical therapist, supported by Dr. Palmerola, with regard to the medical necessity of the requested equipment.
Summary: The claimant suffered a spinal cord injury in a compensable accident rendering him a paraplegic. Dr. Dalal, a board-certified physical medicine/rehabilitation specialist with a subspecialty in spinal cord injury, has been treating the claimant and manages the claimant’s therapy, medication, and equipment needs. He testified the rolling walker and gait belt are neither medically necessary, nor recommended. Dr. Dalal explained that a rolling walker is a device used for people to sustain their weight through their arms if they have a weakness or imbalance in their gait or lower extremity. According to Dr. Dalal, the claimant will not be able to independently ambulate, even with a rolling walker or gait belt. He would not advise a patient who has no independent strength in the lower extremities to be using a rolling walker or a gait belt on their own.
On the other hand, Dr. Palmerola is a board-certified family medicine specialist and is the claimant’s authorized primary care physician. Dr. Palmerola testified that if the claimant’s physical therapist was recommending a rolling walker, gait belt, or other equipment, it would be in claimant’s best interests to have these things and to defer to the physical therapist as to the need for these items.
The physical therapist was accepted by the JCC as a “health care provider” under F.S. §440.13(5)(e). The JCC found the physical therapist meets the definition of authorized treating provider and therefore her opinions are admissible in workers’ compensation proceedings. The JCC noted a Daubert objection was raised and an objection that a physical therapist is not a physician. However, the JCC overruled these objections and found the physical therapist fulfilled the statutory requirement to give expert opinion testimony.
The JCC accepted the opinions of the physical therapist and Dr. Palmerola over those of Dr. Dalal and found it is medically necessary and reasonable the claimant receive a rolling walker and gait belt. The JCC found the physical therapist is in the best position to opine on the medical necessity of the equipment, as well as the claimant’s ability to safely use it, as she has been his physical therapist for more than a year.
Felicia James v. City of Jacksonville/City of Jacksonville Risk Management
JCC Humphries; Jacksonville District; Order Date: September 21, 2016
OJCC Case: 14-015687RJH & 15-009566RJH; D/A: 3/14/2014 & 4/5/2015
Claimant’s Counsel: John Rahaim
Employer/Carrier’s Counsel: Thomas G. Portuallo
Briefly: PRESUMPTION UNDER F.S. §112.18; PERMANENT IMPAIRMENT RATING – JCC Humphries denied the claim for an increase in the permanent impairment rating and corresponding payment of Impairment Benefits and accepted the opinion of Dr. Koren that claimant does not have left ventricular hypertrophy (LVH).
Summary: JCC Humphries accepted the position of the Employer/Carrier, as supported by the medical opinion of the authorized treating cardiologist, Dr. Koren, that the claimant does not have left ventricular hypertrophy (LVH), but does have concentric remodeling. According to the Florida Impairment Guides, Dr. Koren concluded the claimant’s impairment falls within the parameters of Class 1 and sustained a 10% permanent impairment rating.
The JCC rejected the opinion of the claimant’s IME cardiologist, Dr. Mathias, that the claimant sustained a 20% permanent impairment rating based upon a diagnosis of LVH.
The JCC found that, although both cardiologists were well qualified, Dr. Koren has superior knowledge on the extent of the injury sustained by the claimant, particularly on the specialized question presented in this case. The JCC found that Dr. Koren is a “hypertension specialist” and has engaged in years of research dealing with hypertension, published multiple papers on hypertension, and explained in detail his experience in the interpretation of echocardiograms and their use in determining the presence or absence of LVH.
Additionally, the JCC noted that Dr. Mathias’ opinion on the permanent impairment rating had changed during the course of the claim. Dr. Mathias initially found the claimant’s impairment rating was 10%, then concluded the appropriate rating was 35% based on a Class III rating, and then at deposition retreated from his prior opinion to conclude the appropriate rating was 20% for claimant’s hypertension. Also, the JCC noted that Dr. Koren is the claimant’s authorized treating physician and has seen the claimant on multiple occasions while Dr. Mathias has only seen the claimant once. The JCC noted that Dr. Mathias himself recognized this might be a factor since he deferred to the authorized treating physician who has seen the claimant multiple times on the question of the date of maximum medical improvement.
Michaela Stuckey v. Hillsborough Area Regional Transit/Commercial Risk Management, Inc.
JCC Spangler ; Tampa District; Order Date: September 21, 2016
OJCC Case: 13-027186EHL, 13-027188EHL, 14-001539EHL; D/A: 12/7/2009
Claimant’s Counsel: Manuel Franco
Employer/Carrier’s Counsel: Steven Hovsepian
Briefly: TPD; 104 WEEKS OF TEMPORARY BENEFITS – JCC Spangler denied the claim for temporary partial disability benefits and found that F.S. §440.15(4)(e) remains the applicable statutory law governing this matter and limits the payment of TPD benefits to a period of 104 weeks total.
Summary: The JCC took into account the Supreme Court opinion of Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016), as argued by the claimant in support of the claim for TPD benefits following the statutorily mandated 104 weeks of eligibility. The Employer/Carrier defended on the basis that the TPD statute, F.S. §440.15(4)(e), remained in effect and was not affected by the Westphal decision and the 104 week cap on receipt of TPD benefits was the law and no legal authority existed to justify the payment of TPD beyond the 104 week period.
The JCC distinguished the instant case from the facts in Westphal and noted that here, the claimant is not totally disabled, has an earning capacity, was working during the 104 week period she received TPD benefits, and reached overall maximum medical improvement within three months of the 104 week period. The JCC also found there is no current prospect the claimant will be eligible for PTD benefits.
The JCC found “There are notable differences in the implications of having a totally disabled person with no earning capacity being faced with no prospect of any income save an as yet to be fully developed right to PTD benefits which was the satiation at work in Westphal, and the circumstances being faced by the claimant here.”
Peter Portu v. City of Coral Gables/Johns Eastern, Inc./Corvel Corporation
JCC Kerr; Miami District; Order Date: September 22, 2016
OJCC Case: 16-001262MGK; D/A: 11/18/2009
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Luis Estrada & Leopoldo Garcia
Briefly: ATTORNEY’S FEES – JCC Kerr denied the claim for entitlement to an attorney’s fee paid by the Employer/Carrier where there was no basis for payment of the benefits within thirty days of the Petition and the benefits were paid within 14 days of first knowledge by the E/C.
Summary: The claimant argued he is entitled to an attorney’s fee for obtaining impairment benefits based upon a 4% rating from Dr. Perloff and due to the Employer/Carrier’s failure to pay benefits within 30 days of the Petition for Benefits.
The Employer/Carrier argued that Dr. Perloff’s report, which was the basis for the Petition for Benefits, was based on an erroneous opinion that the claimant had a Class 3 impairment of 35% and that Dr. Perloff later withdrew this opinion at deposition. Further, the E/C argued that the assignment of an MMI date without an impairment rating is a benefit of no value; therefore, no payment can be made and no attorney’s fees were owed.
The JCC accepted the E/C’s argument and found it was undisputed that the first knowledge of either party of a 4% impairment assigned by Dr. Perloff was at his deposition. The JCC found the Employer/Carrier had no way of calculating the impairment rating and paid the correct rating within 14 days of knowledge as required by F.S. §440.15(3)(a).
Jermaine Madison v. Comfort House/Amerisure Insurance
JCC Condry; Orlando District; Order Date: September 22, 2016
OJCC Case: 16-008498WJC; D/A: 3/30/2016
Claimant’s Counsel: David E. Mallen
Employer/Carrier’s Counsel: Daniel DeCiccio
Briefly: PETITIONS NOT SIGNED – JCC Condry dismissed the Petitions as they did not bear the claimant’s attorney’s signature as required by statute and procedural rule.
Summary: The claimant argued the deficiencies of the Petition should have been raised within 30 days of the carrier’s receipt of the Petition under F.S. §440.192(5). However, the JCC found that statutory provision only applies to challenges to the specificity of a Petition. The JCC found that the absence of an attorney’s name or signature is not a specificity question and did not give the carrier any better insight to the specific benefits being sought so that a proper investigation could be conducted. Rather, the lack of name and signature goes to the very heart of what is required in the finding of a valid pleading under Rule 60Q-6.103(1)(c).
The Judge cited F.S. §440.192(4) as providing that “the Petition must include a certification by the claimant or, if the claimant is represented by counsel, the claimant’s attorney….”
The JCC cited Rule 60Q-6.103(1)(c) as stating, “the signature or electronic signature filed electronically, of the party in interest or, if represented, the party’s attorney of record.”
Ula K. Peak v. Baycare Health System/Commercial Risk Management
JCC Rosen; St. Petersburg District; Order Date: September 22, 2016
OJCC Case: 10-015026SLR; D/A: 5/26/2010
Claimant’s Counsel: Bill Dickey
Employer/Carrier’s Counsel: Clara Arrington
Briefly: ATTORNEY’S FEES – JCC Rosen ordered the Employer/Carrier to pay $53,418.75 in attorney’s fees for the first Petition for Benefits and $500.00 for the second Petition for Benefits, and found the hourly rate of $275 is reasonable based upon 194.25 hours of attorney time spent.
Summary: The JCC noted this case was heavily litigated and the time spent included legal research, preparation and analysis of multiple pleadings, attendance at numerous evidentiary and non-evidentiary hearings, preparation for and attendance of no fewer than 15 depositions, two mediations, preparation, submission and analyses of trial memorandum, and attendance and prosecution of claims at a final hearing.