FL Case Law Summaries – 9/8/16
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JCC ORDERS
Roberto Oscar Sanchez v. Mainguy Landscape Services/Florists’ Mutual Insurance Company
JCC Hill; Miami District; Order Date: August 29, 2016
OJCC Case: 16-001245CMH; D/A: 11/2/2015
Claimant’s Counsel: Raul C. De La Heria
Employer/Carrier’s Counsel: Rex A. Hurley
Briefly: TTD/TPD; VOLUNTARY LIMITATION OF INCOME – JCC Hill granted the claim for TTD and TPD benefits and denied the defense of voluntary limitation of income. The JCC found the carrier failed to investigate the circumstances surrounding the compensable injuries and “dropped the ball, deserting any achievement of quick and efficient delivery of disability and medical benefits in this cause.”
Summary: The JCC noted the claimant sustained a compensable motor vehicle accident, suffered headaches and neck pain, required emergency room treatment, and immediately reported the injury to the Employer. The JCC found the Employer authorized no treatment to address the claimant’s initial complaints of pain and did not ask the claimant to complete an injury report. Further, the JCC found the Employer did not communicate with the claimant until the claimant traveled to the Employer’s office to determine his employment status and, upon entering the office, the Employer made it clear to the claimant that he was no longer welcome there and he should pick up his tools and leave. The JCC found that after obtaining legal assistance, the carrier authorized medical care and the first appointment took place approximately three months following the date of accident.
The JCC found there was no evidence the carrier notified the claimant of any of his rights under the Act and that the timeliness of the authorized medical care in this case was “delinquent.” Further, the JCC found no evidence that the claimant had abandoned his job, no evidence that an offer of employment was made to the claimant, and the claimant’s employment was terminated by the Employer without any opportunity of reemployment. The JCC found the claimant was justified in concluding he had been fired from his position as a shop manager and was not welcome to return.
The JCC found the claimant’s job as shop manager required heavy lifting, in excess of 50 pounds, and that his physical restrictions preclude returning to work with the Employer as a shop manager.
The JCC found the claimant sufficiently demonstrated a loss of income directly attributed to his industrial injury and there was no intervening or superseding cause shown by the Employer/Carrier to explain the loss of wage earning capacity during the time disability benefits are in dispute.
Ramiro Martinez v. JJ Road Feeder/Normandy Insurance Company
JCC Almeyda; Miami District; Order Date: August 30, 2016
OJCC Case: 15-013912ERA; D/A: 6/4/2015
Claimant’s Counsel: Michael Goldstein
Employer/Carrier’s Counsel: Kurt Wirsing
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Almeyda denied the claims for compensability of the alleged right knee injury and treatment for the neck, back, wrist, and ankle conditions which were previously accepted as compensable. The JCC found the claimant was not credible and rejected his testimony with regard to sustaining a knee injury and rejected his testimony regarding his complaints of pain in other body parts.
Summary: The JCC found the claimant had no neurological deficits in his low back or neck and that the ankle, knee, and wrist examinations were essentially normal. The JCC accepted the opinions of the initial physicians, Dr. Grau, Dr. Ramirez, and Dr. Keyes, that the claimant is negative for ongoing pathology and at maximum medical improvement from the effects of the industrial accident.
The JCC rejected the claimant’s complaints of pain as incredible and found the opinion of the claimant’s IME physician, Dr. Aparicio, was predicated on the claimant’s complaints without any clear objective findings.
The JCC found the claimant did not injure his right knee as claimed and found the claimant’s testimony and reference to knee complaints were totally refuted by contrary evidence. The JCC found that logic and reason would indicate that if the knee injury occurred, the pain would have manifested itself at the time of the hospital visit and most certainly during the period of time he was treated by Dr. Grau. The JCC noted Dr. Grau saw the claimant on a number of occasions and indicated no right knee complaints, similar to Dr. Ramirez, an authorized provider who made no mention of a right knee injury.
Nathaniel Garner v. Miami Dolphins Limited/Great Divide Insurance Company
JCC Lewis; Ft. Lauderdale District; Order Date: August 30, 2016
OJCC Case: 15-026641DAL; D/A: 8/24/2012
Claimant’s Counsel: Neal Falk and Richard Wagenheim
Employer/Carrier’s Counsel: Sylvia Krainin
Briefly: STATUTE OF LIMITATIONS; HEARSAY – JCC Lewis denied the statute of limitations defense and found that since the workers’ compensation informational brochure was not admitted into evidence, he was unable to make a determination as to whether the language in the informational brochure was sufficient to put the claimant on notice of the rights and limitations period pursuant to the statutory requirements.
Summary: The JCC found the Employer/Carrier is estopped from asserting the statute of limitations defense and was unable to find the claimant received proper notice of his rights, benefits, procedures for obtaining benefits, and obligations under the law, including information as to the applicable statute of limitations. The JCC found the claimant established he was unaware, from any source, of the statutory requirements, including the requirement that he must file his Petition for Benefits within two years of the date of accident or within one year of the last date he was furnished with remedial treatment.
The JCC sustained the hearsay objection to the workers’ compensation informational brochure raised by the claimant, finding the Florida Evidence Code applies in workers’ compensation proceedings and that authentication of evidence is required as a precedent to the admissibility of evidence. The JCC found the informational brochure is self-authenticating under F.S. §90.902(5), however, the brochure is also hearsay since it was being offered for the truth of the matter asserted. That is, it was offered to show the claimant was sufficiently and properly informed of his rights and obligations under the Florida Workers’ Compensation Law, including the applicable limitations.
The JCC also noted the Employer/Carrier did not establish the information brochure was admissible under any exception to hearsay, nor did the Employer/Carrier request judicial notice be taken.
Abraham Lugo v. Performance Foods Group/Gallagher Bassett Services, Inc.
JCC Sculco; Orlando District; Order Date: August 30, 2016
OJCC Case: 16-000148TWS; D/A: 6/8/2015
Claimant’s Counsel: Michael J. MacDonald
Employer/Carrier’s Counsel: Pamela L. Foels
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME – JCC Sculco granted the claim for temporary partial disability benefits, denied the voluntary limitation of income defense, and found the claimant’s termination of employment was connected to his compensable injury and therefore did not break the causal link between the injury and his loss of wages following termination.
Summary: The JCC found the claimant’s complaints about excessive walking in the warehouse position were ultimately validated by the authorized physician’s change in restrictions to prohibit climbing or prolonged walking for more than twenty minutes per hour. The JCC found the claimant’s injury was a contributing cause to his difficulties, complaints, and ultimately, his termination, and that the claimant is entitled to temporary partial disability benefits.
The JCC also found the Employer/Carrier failed to establish that the claimant refused suitable employment to support a voluntary limitation of income defense. The JCC rejected the Employer/Carrier’s argument that the claimant’s previous absences and his expressed dissatisfaction with his position established a “refusal” of suitable employment.
The JCC also found the claimant’s post-termination efforts to find work were sufficient to re-establish a connection between his compensable injury and lost wages. The JCC found after being fired from his job with the Employer, the claimant looked for work and was able to secure a part-time job as a mechanic within a few months of his termination, which has now turned into full-time work.
Marie Hatcher v. City of Orlando/Employers Mutual Inc.
JCC Pitts; Orlando District; Order Date: August 31, 2016
OJCC Case: 16-000055NPP; D/A: 11/25/2001
Claimant’s Counsel: Adam Littman
Employer/Carrier’s Counsel: Gina Jacobs
Briefly: STATUTE OF LIMITATIONS – JCC Pitts denied the statute of limitations defense and found the statute was tolled because the Employer continued to provide remedial treatment based upon the claimant’s continuous use of a prescribed medical device, including internal fixation hardware placed by the authorized treating physician during surgery, which continues to serve the function of mitigating the effects of the claimant’s compensable injury.
Summary: The JCC noted the claimant suffered a compensable left foot injury and the Employer/Carrier provided authorized medical care including surgery. The JCC found internal fixation hardware was placed into the claimant’s left lower extremity by the authorized treating physician to correct misalignment of the claimant’s ankle, and that cortical screws remain in the claimant’s left lower extremity at the present time and are still in use. The JCC found the two cortical screws qualify as either a medical apparatus and/or as an arthoses used to mitigate the effects of the claimant’s injury. The JCC emphasized the physician’s testimony that the screws serve the special purpose of stabilizing the fracture fragment and that they still provide structural support and stability to the ankle by preventing fracture.
The JCC accepted the testimony of the authorized treating physicians that these screws will remain implanted in the claimant, unless and until they become painful necessitating their removal. The JCC also noted that one of these screws has migrated and needs to be carefully observed. Under these circumstances, the JCC concluded the Employer/Carrier has a duty to maintain the medical apparatus and provide for the removal should migration occur to the point where the ankle becomes painful.
The JCC also found the Employer and the Carrier are aware the internal fixation hardware has continuously remained in the claimant’s left lower extremity from the time it was implanted.
Tommy Lay v. KBB/ESIS WC Claims
JCC Dietz; Sebastian-Melbourne District; Order Date: August 31, 2016
OJCC Case: 13-014638RLD; D/A: 3/16/2013
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Gary Schloss
Briefly: MODIFICATION OF FINAL ORDER; F.S. §440.28 – JCC Dietz denied the Petition for Modification and found the issue of maximum medical improvement was decided in a JCC’s prior final order and there has been no change in condition or mistake in determination of fact to support modification of that final order.
Summary: The JCC stated that modification is not intended to afford a workers’ compensation claimant or an Employer an opportunity to re-litigate an issue that was previously determined solely because of an “increase in the quantum and probative force of evidence in support of conclusion contrary to that reached in the prior determination.”
However, the JCC noted that modification of a prior order based upon a mistake in the determination of fact may be brought when material evidence that adds something new becomes available after the entry of the order, which could not have been discovered at the time of the original proceeding.
In this case, the JCC found the issue of maximum medical improvement was decided in a prior final order by the JCC who accepted Dr. Seltzer’s opinion and that no change in condition or mistake in determination of fact has been shown to meet the requirement of F.S. §440.28.