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

  
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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.

 

HRMCW Cases

 

 JCC Weiss (Ft. Myers)(Scott Miller) -  Denied all claims with prejudice.   The claimant allegedly contracted lung disease due to exposure to cement dust and sought medical benefits as well as PTD.  The E/C’s IME related the lung issues to rheumatoid arthritis, while the claimant’s IME testified the claimant had chronic bronchitis and interstitial lung disease due to his work in the cement industry.  The JCC denied the claimant’s multiple objections to the E/C’s toxicology and industrial hygiene experts.  The JCC denied claimant’s request for an appointment of an EMA as untimely, and subsequently ruled that the claimant failed to prove by clear and convincing evidence both sufficient exposure and causation.  The claimant failed to show he had been exposed to a harmful substance, the identity of the substance, or sufficient exposure to the substance in order to meet the burden of proof.  Even assuming the sufficient causation had been proven, claimant’s own IME testified the claimant was not at MMI, precluding the PTD claim as well.    Click here to view Order

 

District Court of Appeal Cases

 

Hunt v. Lightfoot, ___ So.3d ___ (Fla. 1st DCA 2/9/2018)

Discovery/Compelling Production of Surveillance

The DCA quashed the Circuit Court’s Order compelling the production of surveillance video the Defendant did not intend to use at trial.  The Defendant responded to a discovery request producing 2014 video they intended to use at trial, but not video from 2016 which they did not intend to use.  The trial court required the defendant to produce the ID of the person that took the 2016 film, when it was taken and where. After providing this information, the court then granted a motion to compel the entire 2016 video without a hearing. In quashing that order, the DCA found that while the existence of all video must be produced, the contents are only discoverable if intended to be used at trial, or if extraordinary circumstances dictate compelling the content. The DCA rejected the plaintiff’s argument that the 2016 video was necessary to show the 2014 video was only for a specific time, calling this proposition “self-evident”.   While there may be circumstances where fairness and completeness require production (ie. a continuous period of surveillance needing to show continuity), taking the argument to its logical end, all attorney work product could be discoverable if any evidence on that subject were presented at trial.    Click here to view Opinion

 

JCC Merit Orders

 

Compensability/SOL

JCC Kerr (Miami)  - Denied compensability of hernia.  The E/C raised a Notice defense.  The JCC determined the claimant suffered a hernia in the course and scope of employment while lifting boxes at work in March of 2016.  It was further determined that the claimant learned he had a hernia on 4/19/2016.  The JCC determined the injury required a medical opinion and should have been  be reported within 30 days of the medical opinion connecting the injury to work (4/19/2016).   The JCC rejected the repetitive trauma allegation and determined the first report occurred on 6/17/16 when claimant’s daughter called the employer; thus the claim was not reported timely.   Click here to view Order

JCC Winn  (Pensacola) - Denied compensability.  The pro se claimant reported an exposure to fumes caused her to become woozy, confused, and short of breath.  She then took  BP medicine, notified her supervisor, and was sent home.  She testified she saw her doctor the following day and was “Baker Acted” with psychiatric conditions she attributed to the exposure.   The JCC ruled that the claimant failed to show clear and convincing evidence of exposure to a harmful substance, the identity of the substance, or sufficient exposure to the substance via expert testimony.    Click here to view Order

JCC Beck (Sarasota) - Denied continued compensability.   Work forms pre-accident showed low back problems and radiculopathy.  MRIs showed degenerative disc disease.  The E/C denied further treatment contending the MCC for ongoing care was no longer the IA.  The treating ortho (Lonstein) testified that the forms showed the claimant had pre-existing  degenerative stenosis and that the accident was an exacerbation of those conditions which had resolved and the IA was no longer the MCC for the need for treatment.   A referred neurologist (Kassicieh) also placed the claimant at MMI with 0% PIR and opined the lumbar radiculopathy was pre-existing.  The Claimant’s IME said the claimant did not report a history of preexisting symptoms which was not accurate.  The JCC noted claimant had not reported his previous history accurately and accepted the opinions of Drs. Lonstein and Kassicieh over Dr. Fishman.    Click here to view Order

JCC Owens (Port St. Lucie) - Denied compensability of the accident and injury.  A plumbing crew from Tampa was working on a project in Port St. Lucie.  During a work day the highest ranking member of the crew learned the company van had been involved in an accident.  The claimant took a company van from a worksite without permission and without clocking out, to bail out his brother (also a crew member) who was arrested while driving the company van the previous night.  During the approximately 66 mile trip to the bail bondsman and jail the claimant was in an MVA and taken by helicopter to the hospital.  The claimant contended theories of a traveling employee, a special errand, and dual purpose to benefit the employer, and that his brother (a supervisor on the crew) instructed him to come bail him out.   The E/C alleged the trip was a purely personal mission.  The judge completed an extensive analysis in a 37 page order of the going and coming rule, special errand, travelling employee, dual purpose, deviation, and personal comfort rules.  The JCC found the claimant lacked credibility as he had several differing accounts of what occurred.  The JCC determined the claimant was on a personal mission and had deviated from employment by taking the company van without permission or signing out of the job on the sign in sheet and therefore the accident did not occur in the course and scope of employment.  Click here to view Order   

Indemnity Benefits

JCC Walker (Panama City) - Awarded TPD.  The claimant was placed on a five pound restriction.  She reported her job duties remained the same but her manager said to just “do what she can.”  She called in saying she could not work due to pain and two different managers responded “okay”.  She showed up several days later and was told they could not work around her injury.  Management reported increased absences and late arrivals for which she was counseled prior to the termination.  The employer later discovered she gave customers unauthorized discounts.   The employer notified law enforcement and reviewed videos purporting to show theft. The E/C asserted voluntary limitation of income, job abandonment, deemed earnings and theft of merchandise.  The JCC found that upon the claimant meeting her burden of entitlement to TPD the burden shifts to E/C to prove misconduct or termination for cause.  The JCC determined since the termination occurred prior to the discovery of the alleged theft, the claimant could not have been terminated for cause on that basis.  The JCC found the claimant worked for the employer for five months post-accident, her work injury caused her absences and the late arrivals did not rise to the level of misconduct.   Click here to view Order

JCC Rosen (St. Petersburg) - Awarded TPD but  required claimant to provide DWC-19s  within 15 days; over the E/C’s objection the JCC  also “severed” the E/C defense of misconduct, but noted the defense was not waived.  The claimant, an environmental chemistry professor fell down the stairs and incurred multiple injuries.  The E/C accepted the injuries as compensable and provided treatment.  She worked until being terminated three months later. At the time of the hearing, the termination was still in litigation, with the parties agreeing to binding arbitration per a collective bargaining agreement.   While initially not restricted from work, seven months post DOA the authorized  surgeon, Dr. Armaghani, placed her on sedentary restrictions.   The E/C paid no indemnity, alleging misconduct as a bar to such benefits since the date of termination.   The JCC opined that generally the misconduct should relate to the industrial accident or safety violations, and determined the reasons for her firing were unrelated to the IA. The JCC noted that as her alleged misconduct was being litigated in “tribunals if competent jurisdiction”, the E/C’s defense would not be considered, but would apparently be examined after the arbitration.    Click here to view Order    

Medical Benefits

JCC Forte (Fort Lauderdale) - Denied authorization of PT and payment of TPD for various dates.   The employer assigned temporary alternate managerial duty based upon work restrictions.  The claimant reported that she was performing physical work outside her restrictions because the workers in her department were not able to perform.   Other managers testified the store has 400 employees whom she could have asked for help.  They also noted that she declined to move several 2 pound signs they were outside her restrictions. The JCC determined the claimant failed to show any evidence that she was out of work for medical reasons during the requested periods.  The JCC also said he did not believe she would work outside her restrictions without speaking up as evidenced by not moving the signs.  Click here to view Order 

JCC  Sculco (Orlando) - Authorized PRP injections in an abbreviated order.    The JCC found claimant established the PRP injections recommended by the doctor were reasonable and medically necessary and that the accident was the MCC of the need for the injections.   Click here to view Order

Attorney Fees                                                                                                                           

JCC Humphries (Jacksonville) - Awarded $3,004.65 in taxable costs following dismissal of  pending PFBs. The claimant argued E/C was not the prevailing party, the motion must be filed within 30 days of the service of the voluntary dismissal per Rule 1.525, and  that such an award was unconstitutional.  The JCC determined there was no 30 day time limit, but excluded EMA costs as non-taxable.   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:

01-19-2018 Hurley Rogner case law update
01-26-2018 Hurley Rogner case law update
02-02-2018 Hurley Rogner case law update

02-09-2018 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.