FL Law Summaries – 3/23/16
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JCC ORDERS
Melida Winger v. Sears Holdings Corporation /Sedgwick CMS
JCC Basquill; West Palm Beach District; Order Date: March 21, 2016
OJCC Case: 90-000215TMB; D/A: 1/17/1990
Claimant’s Counsel: Douglas Glicken
Employer/Carrier’s Counsel: Amy Siegel
Briefly: ATTORNEY’S FEES – For this 1990 date of accident, JCC Basquill granted the claim for entitlement to attorney’s fees for medical claims only on the grounds the Employer/Carrier did not timely respond to the initial letter/claim/prescription under Allen v. Tyrone Square Six AMC Theatres, 731 So, 2d 699 (Fla. 1st DCA 1999). The JCC awarded counsel an hourly rate of $225 and determined the total attorney’s fee amount was $25,492.50. The JCC stated he found nothing novel or difficult about this case.
Robert Howard v. Cal Maine Foods/ACE USA/Broadspire
JCC Hill; Gainesville District; Order Date: March 21, 2016
OJCC Case: 15-003543MRH; D/A: 11/2/2014
Claimant’s Counsel: Bradley Smith
Employer/Carrier’s Counsel: Jennifer Killen
Briefly: MISREPRESENTATION DEFENSE – JCC Hill rejected the Employer/Carrier’s misrepresentation defense and found the work accident was compensable. The JCC rejected each of the grounds of fraud alleged by the Employer/Carrier and found the claimant’s misrepresentation to medical providers was not made for the purpose of obtaining workers’ compensation benefits.
Summary: The Employer/Carrier alleged four specific misrepresentations. The JCC rejected each ground and found that the claimant did not misrepresent his prior back problem; that the claimant’s misrepresentation to Shands Hospital regarding the cause of his sinus condition was not made for the purpose of obtaining workers’ compensation benefits; that the claimant did not intentionally misrepresent his medical history to Dr. Delgado as the claimant told Dr. Delgado he had memory problems; and that the claimant did not misrepresent his criminal history.
The JCC also rejected the defenses regarding notice of accident, medical causation, break in the causation chain, “misconduct”, and voluntary limitation of income.
Nina Hicks v. Emeritus at Oakbridge/Corvel Corporation
JCC Massey; Tampa District; Order Date: March 21, 2016
OJCC Case: 13-011701MAM; D/A: 1/30/2013
Claimant’s Counsel: Pat P. DiCesare
Employer/Carrier’s Counsel: Bettina Carrier
Briefly: ATTORNEY’S FEES AND COSTS – JCC Massey awarded a statutory guideline fee on the benefits secured in the amount of $979.78. Claimant’s counsel renewed his request to postpone determination of the fee until after the Florida Supreme Court issues a ruling in the Castellanos case. That request was denied. However, claimant’s counsel was afforded the opportunity to present evidence and argument as to the amount of a “reasonable” fee based upon the Lee Engineering factors. The JCC made various rulings on the Lee Engineering factors, but stated he was constrained to award a guideline fee.
Ralph Chavis v. A. J. Stewart, Jr., Inc./Castlepoint Florida
JCC Beck; Sarasota District; Order Date: March 18, 2016
OJCC Case: 14-018007DBB; D/A: 6/19/2014
Claimant’s Counsel: Christopher L. Petruccelli
Employer/Carrier’s Counsel: Russell H. Young
Briefly: MISREPRESENTATION DEFENSE – JCC Beck denied the Employer/Carrier’s misrepresentation defense despite numerous allegations of specific violations of the statute, surveillance evidence, medical records, and prior felony convictions. The JCC found the claimant’s alleged misrepresentations were not intended for the purpose of obtaining benefits or were made by the claimant’s wife, not the claimant himself. The JCC accepted the claimant’s testimony over the doctor’s testimony and history contained in the medical reports.
Summary: The JCC found the claimant was credible and accepted his testimony that his memory was affected by various medications and that he only completed the 9th grade and does not understand medical terminology. The JCC found that, although the claimant failed to mention his prior workers’ compensation claim at deposition, it was reasonable for him to overlook the prior claim since the claim settled in 2003, was not preceded by litigation, and the claimant was not represented by counsel at the time.
Additional allegations of misrepresentations included when the claimant reported to the adjuster that he had no prior back problems, when he reported he had never seen a doctor for pain before the date of accident, and when he reported he had never been diagnosed with arthritis or vascular necrosis. The JCC found the claimant to be a credible witness and accepted claimant’s testimony over the testimony of Dr. Lacson regarding the history contained in Dr. Lacson’s records.
Although the JCC did find the claimant’s deposition statements that he does not drive or walk without a walker to be misleading based upon surveillance evidence depicting the claimant driving and briefly walking without a walker, the JCC accepted the claimant’s testimony that he was in bad shape and that he had had a “nervous breakdown” at the first deposition as supported by the deposition testimony itself, in which the claimant complained about how he felt, asked for breaks, and where it was noted by the court reporter that he was in a lot of pain. The JCC found it was logical and reasonable that the claimant could forget about the last time he drove at the deposition.
Further, the JCC found that, even if knowing misrepresentations had been made, they were not made in support of claimant’s claims or that he intended them for the purpose of obtaining benefits. The JCC explained that when the claimant‘s deposition was taken, there were no Petition for Benefits pending and no requests outstanding for benefits that were not being provided.
The JCC also accepted the claimant’s and his wife’s testimony that the wife is the one who calculated the mileage on the forms for the claimant. The JCC found the claimant to be unsophisticated and uneducated, and he relies on his wife to fill out forms. The JCC found that any misrepresentation that was made on the mileage form was made by the claimant’s wife.