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Thank you to our Law Firm Service Partners for providing this week's Case Law Update! 

  
Winter Park
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Winter Park, FL 32789
TEL: (407) 571-7400
FAX: (407) 571-7401
www.hrmcw.com

This Update contains summaries of all relevant Appellate decisions usually for the preceding week, with comments on how a particular decision affects you. In addition, we review daily the Merit Orders posted on the DOAH website. This Update contains summaries and links to relevant JCC decisions for the past week or so.

Please feel free to contact Rogers Turner (rturner@hrmcw.com) with questions or comments on any of the listed cases.

Congratulations to our associate, Brian Ricotta. Brian passed the bar and was sworn in this week as the newest attorney in the Winter Park office!

 

HRMCW Cases

 JCC Owens (Port St. Lucie) - (W. Rogers Turner, Jr.) Granted E/C Motion to Enforce Settlement Agreement. The parties reached a settlement at state mediation.  The claimant was not thereafter available to sign the mediation agreement but gave the claimant attorney authority to sign on her behalf. After the mediator filed the report, the claimant refused to sign the accompanying settlement documents resulting in the hearing. The claimant testified she was present at the three hour mediation, agreed to the terms and gave her attorney full authority to communicate her acceptance of the settlement and sign the mediation report. The JCC found that although the claimant later decided she did not want to settle (alleging more should be paid for "pain and suffering"), per the terms of the mediation agreement, the settlement was binding and enforceable as of the date of the mediation.   Click here to view Order

 

JCC Merit Orders

Compensability

JCC Holley (Jacksonville) – Denied compensability, indemnity, PCP, podiatrist; abbreviated Order.  The claimant could not testify regarding his exact date of accident, and had no medical evidence of injury.  The claimant provided medical records on the date of hearing, but as they were not from an authorized doctor, IME, or EMA, the JCC sustained the E/C’s objection based on authentication. The claim failed for lack of evidence.   Click here to view Order

JCC Stephenson (West Palm Beach) – Denied all benefits based on misrepresentation. The claimant had a compensable left hand injury with resulting finger amputation in  2015.  Subsequently, he complained of sadness about his amputation, and denied a history of depression, psychiatric medication, and alcohol and drug abuse to the PCP.  The PCP diagnosed him with PTSD and referred him to a psychiatrist.  His plastic surgeon also referred him to a psychiatrist, but none was granted.  The E/C showed that the claimant previously treated with a PCP in 2015 before the accident.  The claimant testified he treated with this doctor for chemical dependency, and he was anxious about weaning from opioids, which he had been using since he was a child.  He was still treating with that doctor when he denied a history of psychiatric medication, and attempted suicide by overdose (although he denied to his doctors it was a suicide attempt).  The claimant did not tell any of his WC doctors about the overdose.  The claimant overdosed two additional times in 2016, none of which were disclosed to his treating WC doctors.  The claimant received a referral for opioid treatment, but did not attend as he did not feel he was addicted, but took opioids for fun.  The claimant denied in deposition feeling depression or anxiety prior to his accident.  The JCC found that the claimant was not a credible witness, because he remembered other hospitalizations, but not his three hospitalizations for overdose.  He did not tell the truth to his doctors about past suicide attempts, and denied that he was a drug abuser.  The JCC found that it was difficult to tell when the claimant was telling the truth or not wanting to remember.  She found the claimant intentionally misrepresented his psychiatric history.  The JCC also accepted the E/C IME that the major contributing cause of the claimant’s anxiety and depression was not the industrial accident.    Click here to view Order

JCC Winn (Pensacola)  Denied compensability.   Claimant alleged a low back injury on 7/21/2014 when he helped lift a heavy sign.  He e-mailed his supervisor on 7/28/14 about the accident and then had a conversation but never filed a formal accident notice for fear the owner may terminate him.  He continued to work and did not seek medical care until 3/31/2016 when he saw a chiropractor for low back and cervical pain.   The notes from that visit did not mention a work related accident.  On 5/16/2017 the chiro's records note in a phone conversation the claimant told him he was injured at work at the 3/31/2016 appointment but he was told he would either need a referral from the E/C or could self-pay, which he did.  The claimant had no additional medical care.  Following the 6/8/2016 PFB he was examined by his IME as well as the E/C's.   Neither IME was able to testify within a reasonable degree of medical certainty that his low back pain was a result of the 7/21/2014 accident.  The JCC ruled that the claimant failed to meet his burden to proof, the time periods between accident and treatment were problematic, and that the chiro records were not credible evidence.       

Click here to view Order

Medical Benefits

JCC Dietz (Sebastian/Melbourne) – Denied pool exercise equipment, authorization of custom assistive swimming device/prosthetic, refinishing of claimant’s pool.  The claimant sustained a compensable severe hand injury resulting in the loss of 70% of his palm and three fingers.  Following the accident, the E/C provided a variety of tools and home and vehicle modifications, as well as various prostheses.  The E/C provided a robotic pool vacuum and over the counter glove which could be used for swimming.  The JCC found that the claimant did not show the pool equipment and prosthetic were medically necessary, and in fact, aquatic therapy was contraindicated as the claimant’s ortho thought it might cause infection.  The claimant tried to rely on the opinions of the aquatic therapist, but the JCC found they were not a health care provider and therefore could not opine on medical necessity.  The claimant’s pain management doctor also testified that he recommended them only on the request of the claimant, and that the prosthetic was reasonable but not medically necessary.  The JCC also found that there was no evidence that the claimant having access to his own pool is medically necessary, and that the need for refinishing is just due to the age of the pool, and unrelated to the compensable accident.  He found that an agreement to provide a pool vacuum did not mean the E/C was responsible for everything to do with the pool.   Click here to view Order

JCC Johnsen (West Palm Beach) – Granted choice of one time change in physician to treat the neck and back, determined  MMI, denied claim for medical treatment for the neck and back as the E/C had provided appropriate care. – The claimant treated for his `93 right shoulder, neck and back claims with Dr. Musso until 2003, when the practice closed.  A 2003 PFB requested an alternate ortho as Dr. Musso no longer accepted WC.  The E/C authorized Dr. Weiss until he left the practice in 2007.  A 2007 PFB requested an alternate ortho as Dr. Weiss was no longer practicing in the area.  The claimant then treated with Dr. Rush until 2008 when he relocated his practice.  A 2008 PFB requested a new ortho as Dr. Rush’s office no longer existed (the new office was 53 miles away).  The E/C authorized Dr. Waeltz, and such letter did not specify he was a one-time change in physician.  The E/C argued that the change from Dr. Rush to Dr. Waeltz was the claimant’s one time change.  The JCC rejected this argument, and found that the claimant was entitled to his choice of one-time change physician.  Dr. Waeltz saw and treated the claimant on 68 occasions from 2008 to present, and maintained him at MMI at all times.  The claimant’s IME (Roush) recommended surgeries and indicated the claimant was not at MMI.  The JCC held that the claimant had not filed a PFB for surgeries or any specific remedial care, and therefore he did not have jurisdiction to consider same.  The JCC found that the claimant reached MMI in 1998 per Dr. Musso, and as previously stipulated to by the parties in 2001.  Finally, he found that the claimant had continuous care for the compensable body parts (including medication, physical therapy, and a recent referral to pain management) since the accident.    Click here to view Order  

JCC Beck (Sarasota) – Denied transportation to and from authorized medical appointments. – The claimant had a compensable injury for which she treated physically and for PTSD.  The E/C provided transportation for approximately six months, before her ortho opined she could drive.  The E/C denied transportation on the basis that the claimant had access to three functioning vehicles and her authorized treating provider opined no limitations that would impact her ability to operate a motor vehicle.  They agreed to pay mileage.  The JCC found that while the claimant need not show provision of transportation is medically necessary, she did have to provide some basis as to why the E/C should provide transportation rather than reimburse travel costs.  The claimant had a license, insurance, access to three vehicles, friends and family willing to transport her, and no restrictions on driving.  Her subjective fears of driving were insufficient to justify overriding the E/C’s right to determine the method of transportation vs. reimbursement.   Click here to view Order

JCC Holley (Jacksonville) – Granted 24 hour per day attendant care, reimbursement of past attendant care.  The claimant had a compensable 1989 accident.  From 2003-2016, the claimant was hospitalized or had visits to the hospital on at least 43 occasions.  The claimant’s 18 year old daughter testified that she provides at least 12 hours per day of attendant care, but was leaving for college and had concerns about leaving her mother.  She testified her mother was getting worse and injured herself regularly.  The claimant’s doctor (Holthaus) testified the claimant had a traumatic brain injury, memory issues, and was a fall risk.  He initially requested 4 hours a day of attendant care, but when later deposed and reviewing an in-home assessment, felt she was getting worse and recommended 24 hours of attendant care, to be performed by a CNA or RN as a home health aide was not sufficient.  The E/C authorized an evaluation with a doctor (Weiss) who indicated that the claimant had a histrionic and dependent type personality and did not require home attendant care.  He felt that the claimant could use a one week ADL assessment to determine what she needed (the JCC denied this as, like an FCE, the claimant cannot be forced to submit to medical care).  Dr. Weiss later indicated that he needed the ADL assessment to complete his opinion on attendant care.  The JCC accepted the opinion of Dr. Holthaus, and awarded payment of 4 hours per day from October 2016-February 2017, 12 hours per day from Feb 2017-August 2017.  He also awarded 24 hours per day going forward.    Click here to view Order

 

Please note that the DCA Opinions and Merit Orders contained in this newsletter are non-final until 30 days after their rendition. Until that time, they are subject to amendment, vacation, or other action which may remove or alter some or all of the decision. Please contact any HRMCWW attorney if you have a question as to the finality and applicability of an opinion or Order. We endeavor to include any amendments or alterations to Opinions or Orders that may occur at a later date.

 

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Click on the following links for printable versions of our weekly updates:

07-07-17- Hurley Rogner case law update
07-14-17- Hurley Rogner case law update
07-21-17- Hurley Rogner case law update

08-02-17- Hurley Rogner case law update

08-25-17- Hurley Rogner case law update
09-06-17- Hurley Rogner case law update
09-08-17- Hurley Rogner case law update
09-22-17- Hurley Rogner case law update

 

 

 



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The following is our latest edition of our Florida Workers’ Compensation Digest:

  
 In McNeela v. Brinks/Liberty, 15-6561, d/a 11/1/14, Judge Hill denied hearing aids based on MCC.  E/C accepted the accident and resulting tinnitus as compensable, but denied hearing loss.  Dr. Hall recommended hearing aids, but opined that they were related to a preexisting condition.  “Where an accident is accepted as compensable, the claimant still bears the burden over the course of the proceedings to prove continued entitlement to workers’ compensation benefits.  See e.g., Fitzgerald v. Osceola County Sch. Bd., [1st DCA] ... Consequently, here, although the E/C accepted compensability of the work accident, Claimant is still required to prove the work accident is the [MCC] of his current hearing loss and need for hearing aids. / Even if an injury is accepted as compensable, a carrier may absolve itself from responsibility for medical treatment by demonstrating ‘a break in the causation chain, such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the injury....’ Jackson v. Merit Elec., [1st DCA] ... / Here, Claimant cannot prevail under either standard.  Based on Dr. Hall’s testimony, which is the only medical evidence presented, the work accident is not the [MCC] of Claimant’s hearing loss and need for hearing aids. The [MCC] is his preexisting long term noise exposure and age. Dr. Hall’s opinion is based on the results of his objective testing. Thus, using the first standard, Claimant cannot establish the work accident is the [MCC] of his current hearing loss and need for hearing aids. / As for the second standard, there is no evidence that the E/C accepted Claimant’s hearing loss as compensable. However, even if it had, the E/C has shown a break in the causation chain by establishing Claimant’s current hearing loss and need for hearing aids was due to a condition unrelated to the work accident.”  Comment: Be precise in responses to petitions, as well as on the pretrial, as to what is “compensable.”

    In Korolenko v. ADP Total Source/Helmsman Mngt Servs., 14-26906, d/a 7/25/11, Judge Hogan denied E/C’s Daubert objection to claimant’s IME.  “Sufficient facts or data: Dr. Suarez performed a physical examination of the Claimant. He had medical records that included prior MRIs from 2007 of the lumbar and cervical spine. He also reviewed the MRI report dated November 9, 2013 of the cervical spine. Dr. Suarez reviewed medical records of Dr. Szeinfeld, a physician that provides treatment to the Claimant through his personal health insurance provider. / ... The testimony is the product of reliable principles and methods: When asked if there was any particular principle or method used to relate the Claimant’s complaints to the industrial accident, Dr. Suarez testified, that ‘… all I can do is ask him what happened and get the history’. He also testified that he relies on his years of experience as a physiatrist in determining if something is ‘causedly’ related [to an industrial accident]. In addition to obtaining a history from the Claimant, Dr. Suarez reviewed the medical reports of the treating physician, reviewed diagnostic reports of MRIs taken prior to the alleged date of accident, and conducted a physical examination of the Claimant. / ... I find that obtaining a history of a patient, reviewing medical reports of the treating physician, reviewing diagnostic reports and conducting a physical examination, absent conflicting medical literature and expert testimony, are reliable principles and methods a physician can rely on to render an opinion regarding causation. / .... The witness has applied the principles and methods reliably to the facts of the case: Counsel for E/C asked Dr. Suarez, ‘… is there any particular … methodology that you can point a physician to in this case that would make them come to the exact same determination you did as to continued cause and relatedness?’ Dr. Suarez stated, ‘No. We’re talking about a human being…’” JCC held: “I do not believe sec. 90.702 Fla. Stat. requires a physician to apply a method of evaluating a patient in such a manner that another physician will come to the exact same determination regarding causation.” Comment: Under 440.09, the “causal relationship [MCC] between a compensable accident” and not readily observable injuries “must be by medical evidence only.”  Medical evidence is demonstrated by physical exam or diagnostic testing, under 440.09. Injuries that are not readily observable would include 1) back and leg pain (Crest v. Louise, 1st DCA), and knee pain (Estevez v. Vquest/CNA, Judge Lorenzen).     Lay testimony cannot be used to show the connection within a reasonable degree of medical certainty as to conditions that are not readily observable pursuant to Arand v. Dyer, 1st DCA. When a doctor merely adopts the connection between a work accident and the injuries based upon lay testimony (for example, from the claimant), would this also be lay testimony? Therefore, even if Daubert is satisfied, is 440.09?

    In Raboteau v. Publix, 14-10492, d/a 7/16/12, Judge Holley denied E/C’s motion for summary final order on a late reporting defense.  At claimant’s deposition, he testified that he only reported he was not feeling well, and not a work accident.  At the motion hearing, claimant testified that he told his supervisor he was hurt at work.  Summary final order was improper where there was a conflict in the evidence.  Comment: The order did not address Ellison v Anderson, Fla. Sup. Ct., which held that“a party when met by a Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.”

    In Velazquez v. Direct Airline Servs./Normandy, 14-27618, d/a 11/1/14, Judge Weiss denied a late reporting defense, and found that 12/1/14 was timely notice of the accident.  E/C received notice of the accident on 12/1/14.  Section 440.185(1) provides 30 days for timely notice; 60Q-6.109 provides that “the day of the act or event from which the designated period of time begins to run shall not be included.”  Under Hinzman v Winter Haven, 1st DCA, the five days rule for one-time change requests ignored 60Q-6.109.  E/C argued that Hinzman should apply to the 30 day rule, that 11/1/14 should be counted, and that 12/1/14 is 31 days away and untimely.  JCC refused to extend Hinzman to the 30 days notice requirement. Therefore, 12/1/14 was exactly 30 days from 11/1/14, and timely.

   

We hope this information has been helpful.  Let us know if you have any questions, or would like to discuss further by contacting ALevy@LevyandLevyLaw.com, or calling (813) 259-5389.