FL Daily Case Law Summaries – 4/11/16
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JCC ORDERS
Ivis Ruiz v. Sketchers/Charter Oak Fire Insurance Company
JCC Hill; Miami District; Order Date: April 6, 2016
OJCC Case: 10-021524CMH; D/A: 7/24/2010
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Robert J. Rodriguez
Briefly: LACK OF PROSECUTION – JCC Hill dismissed without prejudice the claims for recovery of Employer/Carrier paid attorney’s fees and costs for lack of prosecution.
Summary: The Employer/Carrier invoked F.S. §440.25(4)(i), lack of prosecution, to support the dismissal of pending claims for attorney’s fees and costs contained in prior Petitions for Benefits. The Motion to Dismiss was filed on August 31, 2015. The JCC reviewed the docket and found there has been no filing of a Petition for Benefits, Response, Motion, Order, Request for Hearing, or Notice of Deposition during the twelve-month period prior to August 31, 2015, and that no good cause has been shown to excuse the failure. The JCC found the claims for Employer/Carrier-paid fees and costs are thus subject to dismissal for lack of prosecution.
Nevertheless, the JCC ruled that the claimant’s prior attorneys may maintain a charging lien against the claimant for the quantum meruit value of services rendered to the claimant and that an equitable lien can be levied against any prospective claimant settlement proceeds, a source of funds upon which the lien could then attach.
Ricardo Torres v. Cargo Force/Federal Insurance Company, and Gallagher Bassett Services, Inc.
JCC Weiss; Ft. Myers District; Order Date: April 6, 2016
OJCC Case: 15-015174JAW; D/A: 6/18/2013
Claimant’s Counsel: Albert Marroquin
Employer/Carrier’s Counsel: Kip O. Lassner
Briefly: STATUTE OF LIMITATIONS – JCC Weiss denied the claim for medical treatment and found the statute of limitations had run.
Summary: The JCC noted the accident date was June 18, 2013. It is undisputed that the claimant did not file a Petition for Benefits until greater than two years after this date. The burden shifted to the claimant to prove the statute has been tolled, the expired claim has been revived, or that the Employer/Carrier is estopped from asserting the statute of limitations.
The claimant argued the Employer/Carrier is estopped from raising the statute of limitations because the carrier never notified the claimant of the statute of limitations and that the claimant did not have actual knowledge of the statute of limitations until after the time period had already run.
The Employer/Carrier presented the testimony of the workers’ compensation adjuster who satisfied the Employer/Carrier’s burden of proof that the carrier mailed the State of Florida brochure, with the statute of limitations language in both English and Spanish, to the claimant at the address provided by the Employer.
Although the claimant testified he was no longer living at the address where the Carrier mailed the informational brochure, the JCC rejected the claimant’s testimony regarding his change of address and noted the claimant offered no documentary proof of his residence in June 2013, or at any relevant time period. The JCC explained the claimant did not provide a tax return, rent check, electric bill, or anything else to support his testimony. Further, the JCC noted the adjuster testified that she mailed the claimant a TPD check to the same address where the informational brochure was sent and it is undisputed that the claimant received and cashed the benefits check. The JCC noted the claimant did not recall receiving a check in the mail.
Dorothy Scott v. Fresenius Medical Care Holdings, Inc./CNA Insurance
JCC Dietz; Sebastian-Melbourne District; Order Date: April 6, 2016
OJCC Case: 15-003176RLD; D/A: 11/5/2011
Claimant’s Counsel: J. Michael Brennan
Employer/Carrier’s Counsel: Walter Benjamin
Briefly: CAUSAL RELATIONSHIP; MAJOR CONTRIBUTING CAUSE – JCC Dietz denied the claim for compensability of the claimant’s cervical condition and found the claimant did not carry her burden of proof of establishing a causal relationship to the industrial accident.
Summary: The claimant sustained a compensable workers’ compensation accident and injury to his low back on November 5, 2011. The JCC examined various medical reports and depositions since the low back injury and found a lack of recorded complaints or history from the claimant establishing neck pain related to the accident.
The JCC agreed with the Employer/Carrier that the cervical spine is not a compensable body part and found the claimant did not mention it to any physician until approximately two years after the accident and never mentioned it to the Employer or to the adjuster. The JCC found that any cervical complaints the claimant may have are not causally related to the compensable claim for lumbar injury.
Further, the JCC found that both IME doctors testified that a cervical MRI two years after the trauma will not prove causation beyond a reasonable degree of medical certainty.
Maureen M. Norbury v. J. P. Morgan Chase/Broadspire
JCC Massey; Tampa District; Order Date: April 8, 2016
OJCC Case: 14-027627MAM; D/A: 2/20/2014
Claimant’s Counsel: T. Lee Bodie
Employer/Carrier’s Counsel: Debra M. Metzler
Briefly: TPD; VOLUNTARY LIMITATION OF INCOME; MAJOR CONTRIBUTING CAUSE – JCC Massey denied the claim for compensability of the cervical spine and the claim for temporary total disability/temporary partial disability and accepted the opinions of Dr. Galloway and Dr. Raterman that the claimant’s neck problems are not related to the work accident. The JCC also found that, although there is evidence that claimant was under work restrictions during at least some of the time since her accident, such restrictions did not prevent her from performing her regular, pre-accident job duties or from earning pre-accident wages.
Summary: The Employer/Carrier accepted as compensable the claimant’s low back and shoulder injuries related to the industrial accident. However, the Employer/Carrier disputed the compensability of the neck claim. The JCC accepted the opinions of Dr. Galloway and Dr. Raterman that the claimant’s neck problems are not related to the work accident and rejected any contrary opinions including the opinion of Dr. Vlahos. The JCC found there was no question that the diffuse, multilevel findings on the cervical MRI are pre-existing and degenerative in nature. The JCC found the sequence of events was more consistent with the degenerative condition becoming gradually symptomatic over time, and not the result of any sudden trauma.
The JCC rejected the claimant’s testimony that her symptoms appeared immediately following the accident and found the claimant’s story on this issue changed considerably over time and during the course of litigation. The JCC noted the claimant specifically denied trauma when she first reported the symptoms post-accident and, even then, the symptoms appeared to be a continuation of, or at least remarkably similar to, the symptoms she had reported regularly for years prior to the industrial accident.
Additionally, the JCC found the claimant did not carry her burden of proving a loss of earnings or loss of earning capacity as the result of her work-related injury. The JCC found that the 20 pound lifting restriction initially imposed on her did not prevent the claimant from performing her sedentary desk job which required no lifting. The JCC found that any missed time from work was either the result of one or more non-work related conditions, or the claimant voluntarily removed herself from the work force for personal reasons.
Melissa Hudson-Culberth v. Hillsborough County/Gallagher Bassett Services, Inc.
JCC Spangler; Tampa District; Order Date: April 8, 2016
OJCC Case: 15-009395EDS; D/A: 2/27/2015
Claimant’s Counsel: Michael Winer
Employer/Carrier’s Counsel: Timothy Wolf
Briefly: TPD; AUTHORIZATION OF SURGERY – JCC Spangler awarded temporary partial disability benefits for various periods of time and found the claimant was on restrictive duty until it was determined she had reached maximum medical improvement. The JCC also denied the claim for laminectomy surgery and found that, based upon the opinions of Dr. Trujillo, Dr. Schulak, Dr. Cronen, and the opinion of the Expert Medical Advisor, Dr. Williams, the claimant sustained a lumbar sprain and the findings on the L4-5 region of the MRI were chronic in nature and not caused by the accident.
Summary: The JCC found the claimant was initially declared to be at maximum medical improvement on March 11, 2015, and returned to work with no restrictions. However, on March 13, 2015, the claimant alleged excruciating pain and was evaluated by Dr. Trujillo on March 18, 2015, and placed on restrictive duty and remained on restrictive duty until she reached maximum medical improvement on April 8, 2015. The JCC awarded temporary partial disability benefits during the March 13, 2015 – April 8, 2015, period. The JCC found that on December 30, 2015, the claimant was, once again, placed on restricted duty by Dr. Cronen and remained off work with those restrictions until January 8, 2016. Therefore, the JCC awarded temporary partial disability benefits for the period of time December 31, 2015, through January 7, 2016.
After reviewing various physicians’ opinions regarding the MRI, the JCC found the claimant sustained a lumbar sprain as a result of the industrial accident and the other findings on the L4-5 region of the spine were chronic in nature and not caused by the accident. As such, the JCC rejected the claim for laminectomy surgery.
Marlene Altemar v. Lifespace Communities and Lifespace Communities, Inc., d/b/a Abbey Delray South/Sentry Claims Services, Sentry Casualty Company
JCC Basquill; West Palm Beach District; Order Date: April 8, 2016
OJCC Case: 14-002568TMB, 15-006823TMB; D/A: 12/26/2011, 7/12/2013
Claimant’s Counsel: Robert Rampil
Employer/Carrier’s Counsel: Sean Crosby
Briefly: MEDICAL NECESSITY; CASUAL RELATIONSHIP – JCC Basquill granted the claim for authorization of various medical treatments, including psychiatric care and orthopedic care for the compensable left shoulder condition, but denied the claims for compensability of the right shoulder condition.
Summary: The JCC accepted the EMA opinion of Dr. Lichtblau and awarded psychiatric care and orthopedic care related to the compensable left shoulder condition.
However, the JCC found that random payments by the Employer/Carrier for treatment to the right shoulder, which were miscoded as physical therapy, did not constitute authorized medical treatment for the claimant’s right shoulder condition.
Further, the JCC found the claimant’s right shoulder condition is not causally related to the compensable injury pursuant to the EMA opinion. The JCC found there is no clear and convincing evidence that would overcome the EMA opinion.
The JCC noted that Dr. Lichtblau, the EMA, opined the claimant has motivational problems that are related to the accident. The JCC agreed and found the claimant wholly lacking in credibility. The JCC found her appearance at the final hearing was that of a total invalid, with both arms locked to the side with no apparent ability to lift either arm above the elbow, forward, or out to the side. The JCC found this lack of range of motion was belied by a demonstration of her ability to brush her teeth and when she used tissues to wipe away her tears during her weepy testimony. The JCC found that when the claimant was distracted, she exhibited a significantly greater range of motion in both arms/shoulders, which was consistent with physicians who observed guarding with shoulder range of motion, and non-functional limitation of range of motion and excessive pain behaviors.
Jonathan Ira Kahn v. City of Miami Springs/Florida League of Cities
JCC Almeyda; Miami District; Order Date: April 4, 2016
OJCC Case: 15-008009ERA; D/A: 3/24/2015
Claimant’s Counsel: Kristine Callagy
Employer/Carrier’s Counsel: Damien Albert
Briefly: PRESUMPTION UNDER F.S. §112.18 – JCC Almeyda granted the claim for compensability of the claimant’s hypertension and found the claimant met the four prongs necessary to establish compensability of his hypertensive disease. The JCC rejected the Employer/Carrier’s argument that the claimant’s blood pressure reading on the pre-employment physical examination of 140/78 is evidence of hypertension. The JCC also rejected the Employer/Carrier’s witnesses who testified the claimant sustained no disability.
Summary: With regard to the pre-employment physical exam, although the claimant showed a blood pressure reading of 140/78, the JCC rejected the Employer/Carrier’s argument that this single reading of blood pressure, without proof that it was done correctly, proves the existence of hypertension.
The JCC also found the claimant was told by a physician not to work for three days due to elevated blood pressure and that the claimant’s IME physician, Dr. Pianko, agreed. The JCC rejected the contrary opinions of Drs. Perloff and Vadillo on the grounds that these physicians were not then treating the claimant as a patient, with the appurtenant duties and responsibilities of the treating physician. The JCC stated “It is very convenient to hind sight such a recommendation in a vacuum, such as was done here, but this does not obviate the established fact that the claimant was out of work for three days following medical advice due to the claimed condition”.