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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 Dietz (Sebastian/Melbourne)(Mark Hill) – Denied authorization of compensability and ongoing medical for left knee condition.  JCC relied on the opinion of the EMA, Dr. Reiter, and found claimant’s left knee condition was no longer related to the industrial accident.  The acute condition was treated and future care is due to the pre-existing condition.   Click here to view Order

 

District Court of Appeal Cases

 

Edward Paradis v. Neptune Fish Market/RetailFirst Insurance Co. ___ So.3d ___, (Fla. 1st DCA 2/23/18)

120 Day Rule/Reasonable Investigation

The JCC denied compensability based on the claimant’s failure of proof, and intoxication defense.  The claimant injured himself at work in August 2015, breaking his hip.  He went to the VA for care and suffered complications there, including MRSA.  The carrier was unaware of the injury and complications until May 2016 and elected to pay and investigate under the 120-day rule found in F.S. s. 440.20(4), which ran through September 22, 2016. The Carrier did not file their denial until December 14, 2016.  Throughout the months leading to the denial, the Carrier attempted to get the records from the VA through subpoena, and tried to depose the claimant.  The VA only produced some of the records because the claimant would not allow the VA to release a full set.  The Carrier even filed a motion to compel the VA to produce the records.  However, the JCC denied the motion compelling the claimant to sign a full release.  The Carrier also tried to depose the claimant on several occasions, but the claimant resisted.  However, the Carrier did not contact witnesses, did not try to compel the claimant’s deposition at the VA when he was hospitalized, and did not set the records custodian deposition for the VA. The DCA found no competent substantial evidence that the E/C demonstrated facts which they could not have discovered through reasonable investigation under 120-day pay and investigate period. Thus, the DCA found the E/C waived their right to deny compensability of the workplace injury because they did not do so within the 120-day period as required by 440.20(4).   Click here to view Opinion

 

Ring Power Corporation v. Murphy, ___ So. 3d ___ (Fla. 1st DCA 2/23/18)

Statute of Limitations/Purpose of implanted device

The claimant underwent spinal fusion following a work accident of 2006.  The doctors used rods and screws to stabilize the spine.  After a year, the fusion had grown solid and medical testimony stated that the rods and screws were no longer performing any function.  The last time the carrier provided benefits was 2013.  In 2016, claimant filed a PFB for more treatment.  However, the E/C asserted an SOL defense.  The JCC agreed with the claimant’s argument that the statute was tolled because the rods and screws which remained inside his body provided “remedial treatment” continuously, and the SOL never ran.  However, DCA disagreed with the JCC and found that because the pins and screws no longer served any purpose, they did not fall within the tolling provision’s reach.  The DCA distinguished this situation from a knee replacement that effectively substitutes the function of the replaced body part. The E/C was not “furnishing remedial treatment” and therefore the DCA found the statute was tolled.   Click here to view Opinion

 

 JCC Merit Orders

 

Compensability/SOL

JCC Winn (Pensacola) – Granted compensability and medical treatment of right ankle injury.  Claimant’s seizure disorder was previously found compensable.  The JCC found Claimant and his wife credible and accepted their testimony that he had a seizure, blacked out and woke at the bottom of the stairs with a broken ankle.  The fall down the stairs was the MCC of the broken ankle.   Click here to view Order

Indemnity Benefits

JCC Humphries (Jacksonville) – Denied TPD.  The JCC found the claimant’s refusal of modified duty by the employer was unjustified.  The JCC accepted the testimony of the employer over that of the claimant.  The employer consistently made the claimant aware that work was available within his restrictions and claimant consistently and persistently failed and refused to return to work within those restrictions.   Click here to view Order

JCC Johnsen (West Palm Beach) – Granted increase in AWW to include bonuses, denied claim for TTD and granted a portion of the requested period of TPD.  The claimant failed to admit into evidence her placement on a no work status.  The JCC found that it was reasonable for the Claimant to limit the number of hours she worked based upon her post-surgical pain and was not found to have voluntarily limited her income.   Click here to view Order

Medical Benefits

JCC Anderson (Daytona) – JCC accepted the opinion of the claimant’s IME, Dr. Kugler, over the treating physician, Dr. Bonenberger, regarding major contributing cause of a hip condition.  At the initial visit, Dr. Bonenberger completed a DWC-25 indicating that the condition was work-related.  Several weeks later he completed another DWC-25 and indicated it was not related.  He had no explanation for the change and the JCC found Dr. Kugler’s opinion to be more persuasive.   Click here to view Order

JCC Havers (Miami) – Awarded evaluation of lumbar spine and treatment if necessary.  The JCC found the E/C accepted compensability of the accident and injuries, including a "low back" injury.   The E/C treated the Claimant's pre- existing lumbar condition for more than a decade and stipulated to compensability of the "low back" in the pre-trial stipulation without limiting compensability to the exacerbation of the pre-existing condition. The E/C was estopped from challenging industrial causation of the lumbar spine injury as there was no evidence of a break in the chain of causation.   Click here to view Order

JCC Lorenzen (Tampa) – Denied claim for payment of past medical bills.  Claimant failed to prove that any of the unauthorized medical care was emergent in nature.    Click here to view Order

JCC Massey (Tampa) – Denied authorization of a trial of acute and preventative medication, neuropsychological evaluation, audiology evaluation and physical therapy.  Also denied compensability and payment/reimbursement of the neurological and audiological evaluations.  The JCC relied on the opinion of the EMA, Dr. Reddy, and the treating physicians and found the opinions of the claimant’s IME, Dr. Tobon, difficult to reconcile or accept as credible.   Click here to view Order

Attorney Fees

JCC Anderson (Daytona) - Awarded the E/C $743.70 in costs.  Claimant voluntarily dismissed two PFBs after being deposed.  Click here to view Order

Motion Hearings                                                                                                                      

JCC Beck (Sarasota) – Granted claimant’s Motion to Enforce Mediation Agreement for Attorney’s Fees and Costs.  The E/C agreed at mediation to authorize 5 hours of attendant care per day, for 3 days per week.  The E/C reduced the attendant care to 3 hours per day.  The E/C failed to file a motion for relief or to withdraw from its stipulation made at the mediation conference that it was providing five hours of attendant care three days a week.  Click here to view Order

JCC Beck (Sarasota) – Granted E/C’s Motion to Enforce Settlement.  JCC ordered the Claimant to resign, not return to work for the Employer and sign the proposed settlement documents, including the previously agreed resignation and release.  The claimant gave her attorney unequivocal authority to settle her workers' compensation case and agreed to the terms offered by E/C after informed consultation with her attorney.  While the JCC conceded she does not have authority to decide non-workers' compensation causes of action or to compel specific performance, she can include in the Order that Claimant is required to sign the resignation and release she previously agreed to sign.   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
02-23-2018 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.