FL Case Law Summaries


Thomas G. Portuallo


Jose Rivera v. Caterpillar/Liberty Mutual Insurance

JCC Spangler; Miami District; Order Date: February 3, 2016 

OJCC Case: 12-027793EDS; D/A: 7/27/2011

Claimant’s Counsel: Mario Trespalacios & Mark Touby

Employer/Carrier’s Counsel: Vanessa Lipsky & Matthew Colon

Briefly: TEMPORARY PARTIAL DISABILITY; AWW – JCC Spangler denied temporary partial disability benefits and found the claimant’s inability to earn wages was not established to be directly related to the compensable injuries.  The JCC also denied the claim to increase the AWW and found only those bonuses actually earned during the 13 week period should be included, as opposed to bonuses simply paid during the 13 weeks.  

Summary: The JCC denied the claim for temporary partial disability benefits and found the claimant failed to show his physical capabilities and restrictions prevented him in some fashion from continuing to receive commissions from his present real estate business. 

The JCC cited the case of Williams, II v. Archer Western Contractors, 43 So. 3d 789 (Fla. 1st DCA 2010), as holding that a claimant who was not at maximum medical improvement, had not refused modified work nor was offered modified work; had not been terminated from his work for misconduct; and had not commenced employment elsewhere, followed by termination by misconduct or economic reasons was eligible for temporary partial disability benefits without showing a nexus between compensable injuries and the present loss of earnings. 

In this case, the claimant was terminated from the Employer for reasons not related to the compensable injury, and, thereafter, applied for and received unemployment compensation.  The claimant is now self-employed as a real estate broker and has not looked for any other work.  The JCC found there is no Record evidence from the claimant that he is unable to fully perform his duties as a self-employed realtor due to any physical restrictions he may have been subjected to as a result of the compensable accident or injury.  Further, there is no Record evidence from Dr. Basadre, the treating physician, that the claimant would be prohibited or inhibited from self-employment as a realtor because of any restrictions that have been posed on the claimant.

On the AWW issue, the Judge agreed with the Employer/Carrier’s calculation, ruling that only the bonuses actually earned during the 13 week period should be included, as opposed to bonuses simply paid during the 13 weeks.  

Jesus Rossy v. American Airlines & American Airlines Workers’ Compensation Dept./Sedgwick CMS

JCC Almeyda; Miami District; Order Date: February 3, 2016

OJCC Case: 15-004573ERA; D/A: 12/3/2014

Claimant’s Counsel: Tony Villaverde

Employer/Carrier’s Counsel: Michael Hernandez

Briefly: MOTION TO DISMISS DUE TO NO GOOD FAITH EFFORT TO RESOLVE ISSUES – JCC Almeyda dismissed without prejudice the Petition for Benefits and found the Employer/Carrier satisfied their initial burden of coming forward with evidence that no good faith effort was made to resolve the issues and that the claimant failed to present evidence to the contrary.

Summary: The JCC found that the Employer/Carrier presented un-contradicted testimony that no effort by the claimant or claimant’s counsel was made in contacting the Employer/Carrier nor counsel for the Employer/Carrier prior to filing a Petition for Benefits pursuant to the requirements of F.S. §440.192(4). 

The JCC found that, in response, the claimant has the burden of presenting evidence to the contrary but failed to rebut the accepted testimony that the statutory requisite of making a good faith effort to resolve the dispute was never made.

Tony Bono v. City of Hialeah/Sedgwick CMS

JCC Castiello; Miami District; Order Date: February 3, 2016 

OJCC Case: 14-004166GCC; D/A: 12/2/2013

Claimant’s Counsel: Frank A. Cerino

Employer/Carrier’s Counsel: David Goehl

Briefly: MISREPRESENTATION – JCC Castiello found the Employer/Carrier succeeded in accomplishing a degree of impeachment of the claimant, but nevertheless denied the defense of misrepresentation and found no reason why the surgery should not be authorized for the compensable shoulder injury.

Summary: The JCC emphasized that the MRI taken just weeks after the date of accident clearly documented tears of the tendons in the right shoulder.  Although the JCC noted there were inconsistencies in the claimant’s testimony, the JCC found the Employer/Carrier did not establish fraud or misrepresentation.  The JCC also noted the surveillance evidence did not impress the treating physician’s belief that the claimant required surgery to repair his injuries.

Dionne S. Blackmon v. Arlene Williams Bar B Que, Inc.

JCC Winn; Pensacola District; Order Date: February 3, 2016 

OJCC Case: 15-015107NSW; D/A: 6/25/2015

Claimant’s Counsel: Ryan Barnett

Employer’s Counsel: William Mitchell

Briefly: ACCIDENT; COMPENSABILITY – JCC Winn found the claimant sustained an accident as defined by F.S. §440.02(1) when she was standing on the tips of her toes on her left foot with her right leg off the floor, while reaching for items on the shelf above her head, and felt two pops in her left knee and immediate pain.  However, the JCC did not decide whether this accident resulted in an injury.  The JCC reserved jurisdiction to determine compensability for the alleged injury.

Summary: The JCC noted that an order bifurcating issues stated the sole issue to be tried was compensability.  The JCC noted that to establish compensability, the claimant would need to prove that not only there was an accident, an unexpected or unusual event or result that happened suddenly, but also that such accident resulted in an injury which arose out of work performed in the course and scope of employment and that such accident was the major contributing cause of the injury.  It was clear to the JCC at the conclusion of the hearing that both parties tried the matter on the premises that the sole issue to be tried was simply whether the claimant was involved in an “accident’ and not whether such accident resulted in injuries which were also compensable.  The JCC agreed to limit the issues based upon the parties’ belief.

Jose Acevedo v. C & JR Services, Inc./Retail First Insurance Company

JCC Lewis; Ft. Lauderdale District; Order Date: February 3, 2016     

OJCC Case: 14-024859DAL; D/A: 9/17/2014

Claimant’s Counsel: Ivan Morales

Employer’s Counsel: Ana Frexes

Carrier’s Counsel: Maria Valdes

Briefly: ATTORNEY’S FEE – JCC Lewis awarded an hourly rate in the amount of $300 per hour and found a reasonable attorney’s fee for taking depositions with no claim filed was $1,500, for five hours of work.

Summary: The JCC found claimant’s counsel was entitled to the attorney’s fee sought for attending depositions scheduled by the Employer where no claim or Petition was filed.  The JCC found that five hours of attorney time was reasonably required to attend these depositions and that the fees customarily charged in the locale for similar services would be in the amount of $300 per hour.

Joseph Coppola v. Palm Beach School Board/FARA, A York Risk Services Company

JCC Basquill; West Palm Beach District; Order Date: February 2, 2016         

OJCC Case: 14-024834PMB; D/A: 9/5/2014

Claimant’s Counsel: Jeffrey Friedman

Employer/Carrier’s Counsel: Scott Andrew Silver

Briefly: MAJOR CONTRIBUTING CAUSE – JCC Basquill found that the claimant’s aggravation of the right hip condition was compensable based upon the opinion of the Expert Medical Advisor physician, Dr. Raul Aparicio. 

Summary: A conflict of opinions existed between Dr. Chalal, an authorized physician, and Dr. Robert Simon, another authorized physician.  At the request of the Employer/Carrier, an Expert Medical Advisor was granted and Dr. Aparicio testified that the work accident caused the previously asymptomatic osteoarthritic condition to become symptomatic, thus requiring the need for treatment of the claimant’s hip.  The JCC found that Dr. Aparicio was clear that the osteoarthritis was not caused by the work accident but was aggravated by the work accident, causing the claimant’s hip to become permanently symptomatic.

Gary D. Gilbert v. Miami Dade School Board/Gallagher Bassett Services, Inc.

JCC Almeyda; Miami District; Order Date: February 2, 2016

OJCC Case: 15-013196SMS; D/A: 9/11/2014

Claimant’s Counsel: Mark Touby

Employer/Carrier’s Counsel: Michael Hernandez

Briefly: MAJOR CONTRIBUTING CAUSE; MEDICAL NECESSITY – JCC Almeyda found that the recommendation for lumbar fusion was medically necessary and casually related to the industrial injury by way of major contributing cause.

Summary: The JCC accepted as credible the claimant’s testimony and found the claimant suffered two low back injuries, work-related, over two decades ago which resulted in multiple surgeries.  The JCC found that claimant commenced heavy work as a plumber for the employer over 21 years ago and during that time suffered back injuries at work. 

Dr. Raj, a treating physician, placed the claimant at maximum medical improvement and opined that the degenerative process was not abnormal for someone of the claimant’s age and the subject accident was nothing more than a temporary exacerbation of the existing condition.  The JCC rejected the opinion of Dr. Raj on the grounds that Dr. Raj did not have a prior MRI from 2007, only the 2014 MRI.  The JCC found that Dr. Lang, the claimant’s IME, had a more comprehensive background upon which he could render an opinion as to the need for surgery, the nature of surgery and its causation.  As such, the JCC accepted the opinion of Dr. Lang that the claimant’s pre-existing condition did not result in the need for any type of treatment before the accident, but eventually became symptomatic as a result of the subject accident resulting in the need for lumbar surgery.

Ramona Matthews v. Convergys/Gallagher Bassett Services, Inc.

JCC Lorenzen; Tampa District; Order Date: February 2, 2016           

OJCC Case: 15-015167EHL; D/A: 10/14/2014

Claimant’s Counsel: John Sharpless

Employer/Carrier’s Counsel: Don Allen

Briefly: COMPENSABILITY – Claimant alleged she was newly hired by the Employer and was attending a training class when her supervisor kicked her in the back as they were leaving the classroom to go on break.  Surveillance video showed the claimant’s supervisor run up to the claimant from behind and put both her hands on claimant’s shoulders and lift herself on her tip-toes, but did not show the claimant being kicked. 

Summary:  The JCC found the claimant sustained cervical and lumbar strains in the accident and that the accident was the major contributing cause of the claimant’s cervical pain and need for continuing medical care. 

The JCC found it highly likely that the supervisor’s torso came into contact with claimant’s torso, which claimant may well have interpreted as being kneed.  However, the JCC also found it hard to conceive the supervisor could have lifted herself on her tip-toes with her hands on the claimant’s shoulders without putting some weight on claimant’s shoulders.  The JCC found that as a sudden event that was unexpected or unusual enough to necessitate an investigation, and that pursuant to F.S. §440.01(1), the claimant had an accident in the course and scope of her employment.

The JCC noted that Dr. Sachs, the claimant’s IME, recommended treatment for traumatic pain in the claimant’s neck.  While Dr. Goldsmith, the Employer/Carrier’s IME, testified the claimant no longer had any objective signs of injury but had sustained soft tissue injuries to her neck and back in the accident.  The JCC found the claimant sustained cervical and lumbar strains based upon the totality of the medical evidence.

Mario Rodriguez v. Oxigard – Progressive Employer Management Co./Guarantee Insurance Company

JCC Rosen; St. Petersburg District; Order Date: February 2, 2016     

OJCC Case: 15-017974SLR; D/A: 6/25/2014

Claimant’s Counsel: Ivan D. Voronec

Employer/Carrier’s Counsel: Ya’Sheaka Campbell Williams

Briefly: TEMPORARY PARTIAL DISABILITY; VOLUNTARY LIMITATION OF INCOME – JCC Rosen found the claimant was entitled to temporary partial disability benefits and rejected the defense that the claimant voluntarily limited his income and that claimant had attained maximum medical improvement.

Summary: The claimant is Spanish speaking and does not speak English.  The JCC found that the Employer/Carrier accepted injuries to the claimant’s left ankle and left knee as compensable.  The JCC accepted the testimony of Dr. Vlahos, the claimant’s IME physician, that claimant is not at maximum medical improvement for his left ankle or left knee and found the claimant was entitled to temporary partial disability benefits.

Dr. Reddy, the claimant’s authorized orthopedic surgeon, placed the claimant at maximum medical improvement with a 0% permanent impairment rating for both the left ankle and surgically repaired left knee. However, the JCC accepted the claimant’s testimony over that of Dr. Reddy and found the claimant did complain of his entire leg on the various visits with Dr. Reddy notwithstanding the fact that Dr. Reddy limited the complaints down to the left knee.  The JCC noted that Dr. Reddy testified the claimant would either bring his son to interpret or use staff members to interpret the appointments.  The interpreter testified at the final hearing that there was a definite difference in dialects of Spanish, and, in fact, there was some difficulty in interpreting the claimant’s testimony. 

The JCC accepted Dr. Vlahos’ opinion on the grounds that Dr. Vlahos speaks Spanish and had no difficulty communicating with the claimant in the single appointment for the Independent Medical Examination.

Donald Jackson v. City of Pompano Beach/Corvel Corporation

JCC Hill; Gainesville District; Order Date: February 2, 2016   

OJCC Case: 14-020882MRH; D/A: 8/7/2013

Claimant’s Counsel: Ricardo Morales

Employer/Carrier’s Counsel: Darrel King

Briefly: REIMBURSEMENT OF SICK TIME – JCC Hill dismissed the claim for reimbursement of sick time used by the claimant and donated by other employees for lack of jurisdiction.

Summary: JCC Hill found she lacked jurisdiction to grant the relief requested in the form of reimbursement to the sick bank of time donated by other employees and used by the claimant during the time the Employer/Carrier denied compensability.  The JCC found that this is not a “benefit” to which a claimant is entitled under Chapter 440. 

The JCC found the claimant did not establish that reimbursement of time to the sick bank is a benefit that is ripe, due, or owing.  The JCC also found that any assertion the claimant may need sick bank time in the future is speculative.