FL Law Summaries – 2/1/16
BY:
JCC ORDERS
Josue Charlot v. Southeast Personnel Leasing/Packard Claims Administration
JCC Kerr; Miami District; Order Date: January 27, 2016
OJCC Case: 14-012503MGK; D/A: 5/21/2014
Claimant’s Counsel: Martha Fornaris
Former Claimant’s Counsel: Robert Anselmo
Former Claimant’s Counsel: Mark Tudino
Employer/Carrier’s Counsel: Darien McMillan
Briefly: CLAIMANT-PAID QUANTUM MERIT FEE – JCC Kerr denied the claim for a quantum merit claimant-paid attorney’s fee and found that, although the relationship between the claimant and former counsel was contentious, insufficient evidence showed an ethical dilemma such that counsel was forced to terminate his representation.
Summary: The JCC cited the Supreme Court decision of Faro v. Romani, 641 So. 2d 69 (Fla. 1994), which held that in general, when an attorney voluntarily withdraws from representation, he forfeits his lien right unless “the client’s conduct makes the attorney’s continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating the Florida Bar.”
The JCC found that the relationship between the claimant and former counsel was contentious to the point where counsel informed the claimant that, as an officer of the court, he would not pursue the legal basis as insisted by the claimant and withdrew from the case. The JCC found that, pursuant to the test outlined in Faro, prior counsel has the burden of showing claimant’s conduct either: (a) made continued representation legally impossible, or (b) would cause of a violation of ethical Rules Regulating the Florida Bar. Although there was a disagreement between the claimant and the attorney, the JCC found the disagreement was insufficient to create an ethical dilemma under either prong of the Faro test. As such, former counsel was not entitled to an award of a quantum merit attorney’s fee paid by the claimant.
David L. Willis v. Advanced Coatings, Inc./Safeco Insurance Company
JCC Rosen; St. Petersburg District; Order Date: January 27, 2016
OJCC Case: 78-000067SLR; D/A: 8/22/1978
Claimant’s Counsel: Pro se
Employer/Carrier’s Counsel: Robert Osburn
Briefly: EMERGENCY MOTION REGARDING PRESCRIPTIONS – JCC Rosen denied the emergency motion and found the claimant received his medications and that the Employer/Carrier agreed to timely provide prescriptions.
Summary: The JCC noted the accident occurred in 1978 and the claimant has been taking pain medication prescribed by various physicians for over 35 years. The JCC explained that effective January 1, 1994, the Florida Legislature amended F.S. §440.13(3) to include (j), which allows a sick or injured employee to be entitled to free, full, and absolute choice in the selection of a pharmacy or pharmacist dispensing and filling prescription medications required under the Chapter. Prior to that date, the Employer/Carrier could use any pharmacy or pharmacist that it chose to provide prescription medications to an injured worker.
The JCC found that the amendment to F.S. §440.13(3)(j) is clearly a substantive right, conferred upon the injured worker, and only applies to accidents occurring after the effective date of the amendment. Therefore, the Employer/Carrier met its burden of providing prescriptions to the claimant through any pharmacy or facility that it chose. The JCC noted that, while delays in receiving the medication are unfortunate, there are no penalties that may be assessed against the Employer/Carrier in the form of costs or attorney’s fees as the claimant is unrepresented by counsel.
Jeanette Hummel v. Genesis Health Care aka Sun Health Care /Broadspire
JCC McAliley; Port St. Lucie District; Order Date: January 28, 2016
OJCC Case: 13-026577RDM; D/A: 9/16/2013
Claimant’s Counsel: J. Michael Brennan
Employer/Carrier’s Counsel: Kristen L. Johannessen
Briefly: ATTORNEY’S FEE – JCC McAliley awarded an attorney’s fee to claimant’s counsel in the amount of $2,150.00 for preparing for and attending claimant’s deposition when no Petition for Benefits was pending.
Summary: The JCC found that 8.3 hours was reasonably spent by counsel for the claimant in preparing for attending his client’s deposition when there was no Petition for Benefits pending. The JCC awarded the attorney’s fee at the agreed-upon rate of $250 per hour.
The JCC noted that the most significant dispute regarding the time reported by claimant’s counsel involved reviewing and discussing claimant’s business records. The JCC accepted that counsel met with his client the day before the deposition to comprehensively review and discuss the claimant’s workers’ compensation case, including business records which were listed in the Request to Produce.
James E. Oldaker v. Vista Properties, Inc./Zenith Insurance Company
JCC Dietz; Sebastian-Melbourne District; Order Date: January 28, 2016
OJCC Case: 15-015236RLD; D/A: 6/4/2015
Claimant’s Counsel: Olivia Devonmille
Employer/Carrier’s Counsel: Brendan M. McGettigan
Briefly: MOTION TO EXCLUDE BLOOD EVIDENCE – JCC Dietz granted the Motion for Limine to exclude blood evidence and found the Employer did not have a drug-free workplace and that the test on the blood samples was not in compliance with the Florida Administrative Code.
Summary: The parties stipulated that the Employer did not have a drug-free workplace as defined by Section 440. In the absence of a drug-free workplace, the JCC found that the presumption of F.S. §440.09(7) is not automatically applicable and that the Employer/Carrier must establish that the blood test of samples taken for medical purposes comply with the requirements of the Florida Administrative Code.
The JCC found that the Employer/Carrier could not establish that the Florida Administrative Code Requirements were satisfied and, therefore, testimony and documentary evidence regarding the samples were excluded from evidence.