FL Daily Case Law Updates – 3/31/16
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JCC ORDERS
Kimberlee Heussner v. Lumpy’s Golf Pro, Inc./State Farm Fire & Casualty Company
JCC Weiss; Ft. Myers District; Order Date: March 29, 2016
OJCC Case: 15-017047JAW; D/A: 3/10/2010 & 12/28/2011
Claimant’s Counsel: Brian O. Sutter
Employer/Carrier’s Counsel: Bruno DeZayas
Briefly: AUTHORIZATION OF PHYSICIAN – JCC Weiss granted the claim for authorization of continued treatment with Dr. Kandel and found that Dr. Kandel was previously authorized to treat the claimant when he was with Neuroscience And Spine Associates (NASA), and that, even though Dr. Kandel left NASA, the doctor is willing to continue to treat the claimant under workers’ compensation at his new office location nearby. The JCC also found the claimant had established a satisfactory doctor-patient relationship with Dr. Kandel.
Summary: The JCC explained there is no statutory or case law supporting the proposition that a physician becomes de-authorized merely by moving to a new professional practice. The JCC found it makes no difference that the Employer/Carrier paid NASA, and not Dr. Kandel, as he was a partner until he left that office to open his own practice. The JCC stated the Employer/Carrier did not cite any case law to support their argument that it is the practice group, not the specific physician within that practice group, which is the authorized provider.
The JCC found the claimant established a satisfactory physician-patient relationship with Dr. Kandel and that once an injured worker establishes a satisfactory physician-patient relationship, the Employer/Carrier may not de-authorize the physician absent the claimant’s prior agreement or approval from the JCC. Here, the JCC noted there has been no prior approval from the claimant and the Employer/Carrier has not asked the JCC to de-authorize Dr. Kendel.
Eliseo Trujillo v. Nationwide Argosy Solutions/Travelers Insurance
JCC Sturgis; Ft. Myers District; Order Date: March 28, 2016
OJCC Case: 15-001111KAS; D/A: 3/7/2014
Claimant’s Counsel: Mark Zientz
Employer/Carrier’s Counsel: Patricia Perez
Briefly: MEDICAL NECESSITY – JCC Sturgis denied the claim for authorization for a heart and lung transplant surgery as not ripe as the claimant is not on the heart and lung transplant list.
Summary: The JCC found the claimant is not presently on a heart and lung transplant list. The only medical evidence regarding a heart and lung transplant is from Dr. Herrera, the authorized orthopedic surgeon. Dr. Herrera did not opine that the heart and lung transplant needed to be performed before he performed the arthroscopic shoulder surgery, but testified the only impediment to proceeding with the shoulder surgery is medical clearance from a cardiologist or pulmonologist. Although Dr. Herrera is not a transplant physician, his is the only medical testimony or evidence on this issue and he discussed the difficulty of someone of the claimant’s age getting on the transplant list.
Beatriz Munoz v. City of Miami Beach/Corvel Corporations, Johns Eastern, Inc.
JCC Almeyda; Miami District; Order Date: March 28, 2016
OJCC Case: 05-024215ERA & 06-003535ERA; D/A: 7/14/2005
Claimant’s Counsel: William Souza
Employer/Carrier’s Counsel: Luis Estrada
Briefly: MEDICAL TREATMENT – JCC Almeyda reviewed various claims for medical treatment and granted the claims for pain management treatment and a neuropsychiatric evaluation, but denied the claims for neuropsychological and cognitive remediation, cognitive behavioral therapy, and the claim for medications recommended by Dr. Nedd.
Summary: The JCC noted an Expert Medical Advisor was appointed in this case, Dr. Nedd, at the time of the prior proceeding in 2015. Dr. Nedd recommended several types of muscle relaxers and neuro-pharmacological agents. The JCC denied these recommendations on the grounds that they are impossible to implement by pharmaceutical dispensers as there is no specific prescription with dosage amounts. The JCC explained that to award these prescriptions would be an exercise in futility and said award would be impossible to be fulfilled. The JCC found the denial of these claims is limited to the actual claim as specifically presented, and is not to be considered binding if later prescribed by a proper medical provider.
The JCC awarded the pain management program and noted the Employer/Carrier offered no medical testimony to refute this recommendation.
Additionally, the JCC ordered that the Employer/Carrier shall authorize a neuropsychiatrist to evaluate the claimant and determine if further testing is needed and whether any treatment such as the requested remediation therapy is appropriate.
Aaron Peelar, Sr. v. Pierce Manufacture/Travelers Insurance
JCC Beck; Sarasota District; Order Date: March 28, 2016
OJCC Case: 15-019348DBB; D/A: 1/29/2015
Claimant’s Counsel: Manuel Franco
Employer/Carrier’s Counsel: Michael Casto
Briefly: EMERGENCY TREATMENT (CERVICAL SURGERY) – JCC Beck granted the claimant’s Motion for Emergency Authorization of Cervical Surgery under F.S. §440.25(4)(5) and accepted the testimony and opinion of the authorized provider, Dr. Tolli, that the accident is the major contributing cause of the claimant’s cervical condition and need for treatment, and that a bona fide emergency involving claimant’s health, safety, or welfare exists.
Summary: The JCC found the claimant may suffer permanent neurological damage which could lead to paralysis or death if he does not have timely surgical surgery to remove pressure on his spinal cord. The JCC stated she appreciated the Employer/Carrier’s position that they have not completed their defense but noted the final hearing was originally scheduled for the date of the emergency hearing and that pretrials were completed by the parties in January 2016 and that Dr. Tolli was deposed on February 8, 2016.
The Employer/Carrier argued that an IME was performed with Dr. Goldsmith, but they have not yet received a report or discussed the results of the IME with Dr. Goldsmith. Dr. Goldsmith’s deposition is scheduled for May 31, 2016, which is subsequent to the date of the pending final hearing. The Employer/Carrier also argued that the claimant is probably on Medicare and possibly private insurance could be used to pay for his surgery, pending the decision on compensability.
The JCC rejected the Employer/Carrier’s argument and found that an emergency condition exists under F.S. §440.25(4)(f).
Allen Morosohk v. Sysco/Gallagher Bassett Services, Inc.
JCC D’Ambrosio; West Palm Beach District; Order Date: March 28, 2016
OJCC Case: 15-021349MAD; D/A: 1/12/2015
Claimant’s Counsel: Neal Falk
Employer/Carrier’s Counsel: Kip O. Lassner
Briefly: MOTION FOR PROTECTIVE ORDER – JCC D’Ambrosio denied the claimant’s Motion for Protective Order to prevent the Employer/Carrier’s IME from going forward.
Summary: The JCC found the claimant’s argument that the Employer/Carrier’s IME may cause irreparable harm is seriously questioned by the claimant’s actions in attending his own IME in the last month.