FL Daily Case Law Summaries – 4/4/16
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1ST DCA ORDERS
Diane D. Howell v. Juice Bowl/Liberty Mutual Insurance
Appeal of the Order from JCC Margaret Sojourner
DCA Order Date: March 30, 2016
Case: 1D15-3940; D/A: 7/22/1988
Appellant’s Counsel: Joshua C. Nelson
Appellee’s Counsel: Russell H. Young & Ya’Sheaka Campbell Williams
Briefly: RES JUDICATA; MILEAGE – The 1st DCA per curiam affirmed a final order from JCC Sojourner denying the claim for mileage as barred by the doctrine of res judicata. The DCA agreed that the issue of mileage incurred prior to the final hearing of December 18, 2013, was ripe at the time of that hearing and is now barred by the doctrine of res judicata.
Summary: The claimant sought payment of medical mileage from September 7, 1990, through February 14, 2014. The Employer/Carrier paid mileage incurred after December 18, 2013, but denied the remainder as barred by res judicata. A final hearing was previously held in this claim on December 18, 2013. The DCA and JCC agreed with the Employer/Carrier that any mileage incurred prior to that date was ripe, due, and owing, and the claimant’s failure to raise the issue at that time bars her from doing so now.
The JCC cited the case of M. D. Transport v. Paschen, 996 So. 2d 902 (Fla. 1st DCA 2008) and Green Thumb Corp. v. Britten, 393 So. 2d 613 (Fla. 1st DCA 1981). The JCC found the claimant became entitled to reimbursement of mileage at the time the travel occurred, and that to allow the claimant to accrue the mileage claim for many years does not serve the intent of the statute which is to create an efficient, self-executing system of benefits which is not an economic or administrative burden. Section §440.015, Florida Statutes (2014).
The JCC found “As the attorney for the Employer/Carrier noted at the merits hearing, over an eleven year period, memories fade, documents get lost, adjusters change… and litigants change law firms.” The JCC found that the passage of time can make it difficult to determine what mileage was incurred due to the compensable condition.
JCC ORDERS
Timothy Treacy v. Memorial Healthcare Systems/PGCS Claims Services
JCC Lewis; Ft. Lauderdale District; Order Date: March 31, 2016
OJCC Case: 13-026992DAL; D/A: 9/30/2012
Claimant’s Counsel: Michael Celeste
Employer/Carrier’s Counsel: Michael Riedhammer
Briefly: MAJOR CONTRIBUTING CAUSE – JCC Lewis denied the claim for authorization and payment of further medical care and accepted medical evidence that established the need for further medical treatment to claimant’s lower back, including surgery, is not the result of the work accident, but that claimant’s pre-existing degenerative condition has progressed to the point where it independently requires surgery.
Summary: The JCC cited the case of City of Fort Pierce v. Spence, 155 So. 3d 1197 (Fla. 1st DCA 2014), and found that in the present case, as in Spence, there is medical evidence that the claimant’s pre-existing degeneration is the cause, or the major contributing cause, of his current need for spine surgery. The JCC accepted the opinions of the EMA and several other physicians that the claimant sustained a minor strain or sprain type injury as the result of the September 30, 2012, accident, which resolved with no permanency or restrictions.
Linda Ross v. Saks Fifth Avenue/Broadspire
JCC D’Ambrosio; West Palm Beach District; Order Date: March 31, 2016
OJCC Case: 14-027497MAD; D/A: 9/8/2014
Claimant’s Counsel: Victor Malca
Employer/Carrier’s Counsel: Michael Kiner
Briefly: MAJOR CONTRIBUTING CAUSE; IDIOPATHIC CONDITION – JCC D’Ambrosio granted the claim for authorization of cervical surgery and found the injury accepted as compensable was an aggravation of a pre-existing cervical stenosis with subsequent development of myelopathy and hyperreflexia. The JCC found there was a lack of medical and factual evidence that the claimant had suffered from any cervical or upper extremity pain prior to the date of accident.
Summary: The JCC found the opinions of Dr. Robert Simon, the authorized treating surgeon, and Dr. Alexander Leonard, the subsequent authorized orthopedic surgeon, made it clear that the claimant suffered an immediate onset of symptoms following the slip and fall accident at work and initial diagnosis of cervical stenosis and cervical radiculopathy, a diagnosis which never changed throughout her care and treatment. The JCC noted the recommendation for surgery came within months of the date of accident and has continued throughout the claimant’s care and treatment.
The JCC acknowledged that Dr. Leonard testified he was unable to identify, within a reasonable degree of medical certainty, the major contributing cause of the need for surgery. However, the JCC found that Dr. Leonard’s opinions taken as a whole led her to believe the claimant’s surgery is due to the slip and fall accident at work. The JCC found that claimant met her burden of proof to show major contributing cause through the testimony of Dr. Leonard, even though Dr. Leonard never actually said the magic words “major contributing cause” or “more than 51 percent”. Instead, his testimony taken in its entirety convinced the JCC that the major contributing cause of the need for surgery is the aggravation injury and its sequela including myelopathy and hyperreflexia.
Shaneita Jackson v. Stryker Sustainability Solutions/Sedgwick CMS
JCC Sojourner; Lakeland District; Order Date: March 31, 2016
OJCC Case: 15-007745MES; D/A: 2/6/2013
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Daniel Jaffe
Briefly: STATUTE OF LIMITATIONS – JCC Sojourner denied the claim for medical care and treatment on the grounds the statute of limitations expired.
Summary: The JCC found the Employer/Carrier provided the claimant with the required informational brochure regarding the statute of limitations. The JCC noted that the payout ledger filed by the Employer/Carrier established the last payment of any type was made for the date of service of April 3, 2013. The adjuster testified there was no contact made by claimant to obtain additional medical care and treatment until the Petition for Benefits was filed on April 8, 2015.