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This Update contains summaries of all relevant Appellate decisions 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.

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

District Court of Appeal Cases

AT&T Communications/Sedgwick v. Rosso, ___ So. 3d ___ (Fla. 1st DCA 5/2/2017)

Medical Benefits/Home Renovation/Sufficient Evidence to Support Medical Necessity

The DCA affirmed the JCC’s awards of lawn care, attendant care up to 4 hours per day, a brace and evaluation and treatment with a podiatrist to include a shoe evaluation. However, the DCA held the JCC erred in the award of home renovations for the claimant. Claimant’s accident occurred in 1989.  Aged 73 at the time of hearing, the claimant developed foot drop following spinal fusion surgery in 2014, leading to the claimed benefits.  The DCA found the JCC properly awarded lawn care as it would improve her compensable depression and anxiety. They also affirmed the remaining benefits listed above as the E/C waived the right to argue medical necessity by failing to timely respond to the requests. However, in relation to the home renovations, the DCA found no CSE (competent substantial evidence) existed that would support the award. The claimant hired a Rehab Nurse to conduct a home assessment and make renovations.  Analyzing the renovations under the “medical apparatus’ line of cases, the DCA noted the JCC pointed to testimony of the claimant’s authorized psychologist and pain management doctor, in addition to an unauthorized orthopedic surgeon to award the nurse’s home recommendations. However, the psychologist only indicated he agreed “per the home study”, with no mention of medical necessity. The orthopedist indicated he agreed with some of the recommendations, but never indicated which.  Finally, the pain management doctor deferred to the Rehab Nurse, which was insufficient as the nurse’s opinion or testimony alone cannot support medical necessity.  The opinion notes the JCC originally denied the home renovations, but reversed herself on rehearing, accepting the claimant’s argument that the claimant’s date of accident warranted a “liberal construction” of the statute in the claimant’s favor. Although they discussed whether the amendment to the statute in 1990 should be retroactive , they ultimately held they did not need to reach that decision as the E/C did not urge that position in their brief, and the award could not stand regardless based on the failure of medical necessity testimony.  Click here to view Opinion

 

Leon v. CSB Svcs., Inc./NARS, ___ So. 3d ____ (Fla. 1st DCA 5/5/2017)

Authorized Physicians/Medical Necessity

The DCA reversed and remanded the JCC’s Order denying a replacement orthopedist. Claimant was placed at MMI in 2002 for his 2000 WC injury. Thereafter, he moved to Lima, Peru, and the E/C authorized Dr. Linares.  The JCC denied a 2014 PFB seeking authorization of Dr. Linares, as the E/C stipulated he was authorized. However, thereafter (although the E/C was unable to depose the doctor) it appeared the doctor was resistant to cooperate with the Florida WC system or carrier. The JCC’s prior Order found that he was actually refusing payment from the E/C and being paid via Peru’s “socialized medicine scheme”.  By the summer of 2015, the claimant felt the doctor was refusing to treat and filed a PFB seeking authorization of an orthopedist to replace the doctor. The E/C thought he was still treating the claimant and responded there was no need for a replacement. They did not argue either in their response or in the Pre-Trial that such treatment was not medically necessary. After a Merit Hearing, however, the JCC ruled the claimant failed to prove the requested benefit was medically necessary.  The DCA held this was error, as the E/C never pled the medical necessity defense. Additionally, by stipulating to Dr. Linares’ authorized status, the DCA found this removed the need for the claimant to prove that element.   Click here to view Opinion

 

NCCI et al. v. Fee, ___ So. 3d ___ (Fla. 1st DCA May 9, 2017)

Workers Compensation Insurance Rates/Sunshine Laws

In response to the ruling in Castellanos, NCCI announced a 14.5% rate increase, which increased to 19.6% after Westphal. Attorney James Fee requested documents from NCCI, the ratemaking agency, and ultimately filed suit in circuit court in Leon County alleging that (1) the increases violated Sunshine law by failing to allow participation in meetings, (2) other Sunshine Law violations voided the increase on its face, (3) NCCI violated state law by denying Fee certain records and (4) NCCI violated the Public Records Act by failing to respond to his requests.  After a public hearing on the rates but before the rate went into effect, the circuit court held a hearing, and ultimately determined the increase was void based on Fee’s arguments. NCCI and OIR (the Office of Insurance Regulation) appealed.  The DCA, in a highly detailed 19 page Opinion,  reversed the Circuit Court’s ruling in its entirety, finding that the Judge erred in finding Sunshine and Public Records Violation.  The DCA ordered reinstatement of OIR’s final order approving the 14.5% rate hike. The following day, the DCA issued an Order stating the following: “Appellee’s attorneys are directed to show cause, within ten (10) days of the date of this order, why reasonable attorneys’ fees and costs should not be granted in accordance with NCCIs motion seeking an award of attorneys’ fees pursuant to section 57.105(5), Florida Statutes (2016). See Boca Burger, Inc. v. Forum, 912 So. 2d 561, 569 (Fla. 2005). NCCI need not reply, but may do so within ten (10) days of the response.”   Click here to view Opinion

 

JCC Merit Orders

 Compensability

JCC Almeyda (Miami) – Determined claimant was an employee vs.  independent contractor.  The sole defense was that the Claimant was an independent contractor and not an employee. Factors considered in determining the claimant to be an employee were that the Claimant did not have a separate business, was not paid by the job, was paid steadily on a weekly basis the same amount, the Employer provided tools, materials, gave orders as to the work to be performed, and controlled the worksite. In addition, the Claimant was picked up for work in an Employer-owned van and the Employer continued to pay the claimant a salary post-accident even though he had not returned to work. Medical treatment and past bills awarded but TTD denied because the medical records in evidence did not support any period of incapacity.  Click here to view Order

JCC Massey (Tampa) – Denied all benefits based on finding of misrepresentation.  Claimant was a Corrections Officer with an initially compensable right knee injury.  He denied any prior right knee injuries in deposition and to treating and IME physicians. This was in stark  contrast to medical records which documented extensive and longstanding knee complaints spanning several years, with the last treatment being two weeks prior to the industrial accident.  The JCC rejected the Claimant’s argument that he had no incentive to misrepresent since he had better non-WC options including health insurance and veteran’s benefits, finding that when a claimant makes objectively false, incomplete or misleading statements regarding his past medical history in deposition and to his physicians, it is difficult to conceive of any reason for doing so other than in pursuit of WC benefits.  Click here to view Order

JCC Dietz (Sebastian/Melbourne) – Granted compensability of heart disease and authorization of a cardiologist.   The claimant, a full-time firefighter, suffered an atrial flutter (a type of arrhythmia) while working in a light duty position in the Facilities Department due to a non-work-related cervical condition.  The E/C argued the claimant was not a covered employee under F.S. 112.18(1) at the time of the cardiac event.  The JCC disagreed and concluded the claimant was a covered employee because, at that time, he was still an employee of the City, on the payroll, had not turned in his uniform or badge, was on short term disability combined with accrued sick leave and was waiting for a full duty release from his doctor.  The JCC also concluded that the atrial flutter is a covered heart condition and the resulting hospitalization and cardiac ablation procedure was sufficient evidence of incapacitation/disability.  As there were no abnormalities found on the pre-employment physical, the JCC ruled that the claimant met the legal presumption under 112.18, which the E/C failed to rebut.  The JCC also denied the E/C notice defense under F.S. 440.185 because the claimant notified his District Chief the day after being hospitalized and again after the ablation procedure.  Even though the Claimant did not report the incident as work-related and the District Chief did not draw such a conclusion, the JCC held that the Employer had sufficient notice of an injury to satisfy the knowledge exception to the thirty-day rule.  The JCC appointed EMA to address conflicting medical testimony regarding the claimant’s impairment rating.   Click here to view Order

Indemnity Benefits

JCC Walker  via VTC (Panama City) - Awarded partial TPD; denied one time change. Rejected MCC and misrepresentation defense. The E/C asserted the claimant misrepresented his prior condition, although much of the E/C’s position was obscured by apparent confusion and communication issues in the claimant’s deposition, even with an interpreter. Ultimately the JCC found the E/C did not sustain their burden to prove an intentional misrepresentation.  The JCC also rejected claimant’s Daubert objections to E/C medical testimony.    Click here to view Order

JCC Hogan (Ft. Lauderdale) – Granted TTD, penalties and interest, and denied TPD and E/C offsets for prior payments and Social Security benefits.  Based on the testimony of the authorized orthopedic surgeon, the Claimant was on a no work status from the date of his initial exam.  In addition, he never released the Claimant to return to work and never placed her at MMI.  Although another authorized orthopedic surgeon opined that the Claimant was capable of working, he acknowledged that he was missing some of the medical records.  In addition, none of the other authorized providers provided an opinion regarding MMI.  Consequently, the JCC awarded TTD benefits not to exceed 260 weeks.  In addition, the JCC denied a retroactive offset for payment of past TTD benefits paid and past Social Security benefits paid, citing to the 1st DCA’s holding in Horton v. Martin Memorial Hospital, 610 So. 2d 1352 (Fla. 1st DCA 1992) that offsets for Social Security benefits can only be applied prospectively.   Click here to view Order

Medical Benefits

JCC Lorenzen (Tampa) – Awarded surgery, partial period of TPD, denied  other periods, rejected misrepresentation defense based on one prior hospital record where the claimant complained of knee pain but had denied any prior left knee treatment in deposition.  Compensable knee injury. Dr. Gasser (ATP) recommended surgery and opined (in conference) that the ACL tear was old and not related.  The E/C never disputed the causal relationship of the need for the meniscal surgery and argued that, but for the misrepresentation defense, they would have authorized the meniscal surgery if Dr. Gasser had agreed to perform only that surgery.  He would not do so and the E/C argued that it was not responsible for the surgery because the industrial accident was not the major contributing cause of the need for the ACL reconstruction.  Dr. Gasser waffled in deposition, testifying ultimately that he had no opinion on whether the accident was the MCC of the need for the ACL reconstruction. There was no evidence of a prior ACL tear and the small amount of pre-existing osteoarthritis was in a different area of the knee and there was no evidence of prior treatment for the arthritis.  The JCC found that there was no evidence to support a pre-existing arthritic condition, let alone progression to the point that it became the major contributing cause of the need for surgery.   On the indemnity issue, the testimony was consistent on both sides that the employer failed to report the accident to the carrier, thereby delaying medical treatment.  Once authorized a few months after the accident, the PCP assigned work restrictions, thereby entitling the claimant to TPD from the date of accident until the claimant refused a light duty job within her restrictions.  Her basis for refusing was that she wanted to wait for the results of an MRI. The claimant later accepted the light duty position but stopped working due to pain. The JCC denied TPD during the period of the refusal of light duty and found that the claimant was unwilling to work light duty even though the job complied with Dr. Gasser’s restrictions and denied TPD for those periods.   Click here to view Order

JCC Medina-Shore (Miami) - Denied one time change based on SOL.  The original accident occurred on 8/23/11 and involved a compensable back injury. The claimant had another compensable back injury on 5/6/16. The claimant reached overall MMI for the 2011 accident in 2013. The Claimant admitted not seeking treatment in 2014 or 2015 for the 2011 date of accident and testified that his back was okay and managed with aspirin. Indemnity was last paid on the 2011 claim in 2012 and medical was last paid in 2013 with the exception of one prescription paid  in 2017,  which the adjuster testified was made in error and was related to the 2016 accident. The Claimant filed a PFB on 10/13/16 seeking an alternate doctor to treat the 2011 back injury.    Click here to view Order

JCC Medina-Shore (Miami) - Denied one-time change.  Claimant requested a one-time change from Dr. Brown.  The E/C denied the request, asserting that the claimant already exhausted his one-time change from Dr. Hyde to Dr. Brown. The claimant denied ever personally requesting an alternate physician but later admitted he asked his son to call the adjuster to voice his dissatisfaction with Dr. Hyde and to request another doctor. The son followed up the phone call with an email requesting a one-time change. The JCC rejected the claimant’s testimony that his son requested a one-time change on his own and not at the direction of the claimant, particularly since only about an hour had passed between the claimant’s phone call to the adjuster complaining about Dr. Hyde and being advised of his right to a one time change and the son’s email requesting a one-time change on the claimant’s behalf.     Click here to view Order

JCC Rosen (St. Petersburg) - Denied automatic backup generator for Claimant’s home. The Claimant is a quadriplegic who lives in a trailer with a window AC unit and receives 24 hour per day attendant care.    As a quadriplegic, he is subject to overheating after about two hours without air conditioning since he is unable to perspire. The E/C has provided a gas powered generator for power outages.  There was no evidence the generator did not perform as intended. The claimant testified that he is unable to start the generator (pulley start like a lawnmower), nor fill it with gas and must rely on his attendants to do so.  The Claimant requested a propane powered generator on the outside of the house with an automatic starter which would start up on its own in the event of a power outage.  The E/C argued that an automatic backup generator was not medically necessary and the appropriate course of action would be to move the claimant to an assisted living facility. Claimant’s authorized physician, Dr. Creed, waivered on the medical necessity but ultimately opined that the current generator is medically sufficient as long as there is someone present to operate it other than the claimant, and the claimant’s caregivers are trained in its operation.  While there was no question an outside home automatic generator was safer and more convenient, the JCC ultimately (reluctantly) held that the E/C met its burden of providing a gas powered generator and the request for the automatic generator was denied.  Click here to view Order

JCC Winn (Pensacola) – Awarded continuing low back treatment; denied surgery.   Dr. Elzawahry (neuro) had been treating the claimant since 2000 for the 1989 low back injury. In 2015, the E/C authorized Dr. Rohan for surgical consult arising from radicular complaints. He  opined that surgery was medically necessary but not related to the industrial accident. He testified that the original injury was a soft tissue injury and the diagnostic studies over the years show the progression of degenerative disc disease, which was the sole cause of the need for surgery. Dr. Rohan further opined that the claimant required no medical treatment related to the industrial accident. Dr. Elzawahry agreed that the need for the surgery was not the industrial accident, however, he disagreed that the claimant required no related medical treatment.  E/C’s IME Dr. Lurate concurred with Dr. Rohan but JCC Winn found Dr. Lurate’s testimony inconsistent. On one hand, Dr. Lurate testified that the claimant had age-appropriate degenerative disc disease but on the other hand, cited several minor subsequent incidents that could have accelerated the claimant’s degenerative condition. JCC Winn accepted the opinion of Dr. Rohan that the need for surgery was unrelated to and unaffected by the 1989 accident, which contributed “not even a scintilla” toward the need for the surgery.  JCC Winn accepted Dr. Elzawahry’s opinion that ongoing care short of surgery was related and medically necessary, as Dr. Elzawahry was a long term, authorized treating physician.  Click here to view Order

JCC Johnsen (WPB) - Denied authorization of an alternate ortho (one-time change exhausted);  denied  IME; MCC defense rejected.  Contrary to the claimant’s argument, there was no record evidence that Dr. Matarazzo (ATP) refused to see the claimant after placing him at MMI and releasing him from care.  The Claimant underwent an IME of his choice and was not entitled to another one.  The JCC rejected Dr. Matarazzo’s opinion that the industrial accident was no longer the MCC of the need for treatment, as the E/C presented evidence of two subsequent MVAs but failed to show any resulting injuries from the MVAs to demonstrate a break in the chain of causation.    Click here to view Order

Attorney Fees

JCC Spangler (Tampa) - Awarded Attorney fee of $57,275 (226.5 hours @ $250 per hour/ 22 hours (paralegal) @ $75 per hour).   Entitlement not contested. Active litigation for four years, denied claim, multiple merit hearings, procedural hearings, and appellate proceedings. The claimant sought 311.50 attorney hours at a range of $300 to $500 per hour, 42.6 paralegal hours (no hourly rate proposed), and over $6,000 in taxable costs.  The E/C argued that a guideline fee should be awarded, which would have resulted in a statutory fee of $8387.46 ($40.64/hr.), which the JCC rejected.  The E/C then urged 206.4 attorney hours should be awarded between $225 to $250 per hour.  The E/C argued that paralegal time should not be awarded since the Claimant failed to propose an hourly rate. The JCC awarded an hourly rate of $250 per hour, based in part on the claimant’s stipulation to that rate for appellate work on the case in 2012. The JCC awarded taxable costs, which were reduced by about $2,000 to remove charges for non-taxable items (fax, postage/delivery, printing, phone, and computer research charges) per Robbins v. McGrath, 999 So.2d 633 (Fla. 1st DCA 2007).     Click here to view Order

JCC Almeyda (Miami) - Amended Final Compensation Order – Nothing substantive changed, only amended to award attorney’s fees omitted from prior order finding that the claimant was an employee as opposed to an independent contractor and awarding medical benefits.    Click here to view Order

JCC Almeyda (Miami) – Awarded E/C paid attorney’s fee of $3,225.00 ($250 hourly rate).  The claimant’s attorney obtained $1,150.97 in benefits and claimed 15.8 hours, alleging an hourly rate in the range of $250.00 to $375.00.  The E/C objected to a majority of the hours claimed and argued a reasonable hourly rate was in the range of $200.00 to $250.00.  The JCC concluded a statutory fee yielding an hourly rate of $17.83 was clearly unreasonable and, in an abbreviated order, awarded $3,225.00 in fees, based on a reasonable hourly rate of $250.00 and 12.9 hours.   Click here to view Order

JCC Anderson (Daytona Beach) – Denied claimant-paid fee in excess of statutory fee.  As part of a settlement, the parties filed a motion for approval of attorney fees allocating 25% of the settlement amount as the fee.  The JCC concluded that an $8,750.00 fee was unreasonable in a case where no petitions for benefits were filed, where the case was not complex or exceptional in any way, and only 13.2 hours of the attorney’s time was spent (yielding an hourly rate of $662.87).  The JCC awarded a reasonable statutory fee of $4,250.00 instead.   Click here to view Order

JCC Medina-Shore (Miami) – Awarded E/C paid attorney fee of $36,270.00 ($300.00 hourly rate), plus costs of $2,157.31.  The parties stipulated to entitlement to E/C paid fees for securing one-time change, payment of past medical bills, MRI, neurological consult and pain management treatment.  The JCC agreed with the E/C that no such entitlement existed regarding authorization of the orthopedic surgeon.  The parties also stipulated to the monetary value of the benefits secured ($10,000.00).  Claimant’s counsel sought an upward deviation and claimed 161.2 hours and an hourly rate of $300.00 to $350.00.  The E/C argued a statutory guideline fee of $1,750.00 was appropriate and, in the alternative, 66.4 hours at an hourly rate of $200.00 to $250.00 was reasonable.  In an abbreviated Order, the JCC concluded that, based on the heavily litigated posture of the case, a reasonable hourly rate is $300.00 and a total of 120.9 hours were reasonably expended.   The JCC awarded the entire amount of costs claimed because the E/C failed to itemize which costs they objected to and the reason for said objection.   Click here to view Order

JCC Almeyda (Miami) – Awarded claimant paid attorney fees.  The claimant’s counsel sought $6,000.00 in ex parte fees from the claimant for securing benefits valued at $4,117.57 pursuant to Miles v. City of Edgewater Beach.  The JCC distinguished the facts in the case at bar from those in Mile and, instead, performed an analysis under Lee Engineering v. Fellows, 209 So.2d 454 (Fla. 1968).  In so doing, the JCC pointed out that the amount in controversy ($4,117.57) is substantially less than the requested and, ultimately, concluded that the $6,000.00 fee was unreasonable.  The JCC also concluded that a statutory guideline fee was unreasonable as well.  Instead, the JCC awarded a fee based on 40% of the benefits secured, in accordance with the personal injury fee schedule.   Click here to view Order

JCC Kerr (Miami) – Denied misrepresentation defense and awarded E/C paid fees and costs to claimant for defending affirmative defense.  The claimant, a 48 year old construction site supervisor, suffered a severe crush injury to the left leg when a crane operator dropped a large steel beam on him.  He received extensive medical treatment from various specialists, including 11 surgeries for recurrent infections and subsequent falls stemming from instability in the leg.  The claimant also developed low back pain from an altered gait and received authorized treatment with a neurosurgeon for his low back complaints.  At his initial deposition, the claimant admitted a prior motor vehicle accident (“MVA”) but denied any resulting injuries or treatment to the low back.  He also denied any other prior MVA’s.  It was later discovered that the claimant was involved in two prior MVA’s, both resulting in treatment for low back complaints.  At the trial, the claimant presented in an electric wheelchair, wearing permanent braces on his left leg to stabilize the left knee and a drop foot condition.  The JCC noted that he was in obvious pain and taking significant pain and psychiatric medicines.  The JCC cited to several 1st DCA cases describing the E/C’s burden of proof for a misrepresentation defense as requiring evidence that: 1. The Claimant made a false, fraudulent, or misleading statement, and 2. The statement was intended to be for the purpose of obtaining benefits.  In this case, the JCC concluded that the first burden was met because the claimant misrepresented his prior medical history by failing to disclose the prior treatment to his low back after both prior MVA’s.  However, the JCC held that the E/C failed to prove that his omission was intended for the purpose of securing workers’ compensation benefits.  The JCC explained that at the time of his deposition, the Claimant no longer had back complaints.  The JCC pointed out that the neurosurgeon placed him at MMI prior to the deposition and he had no further complaints of back pain, with the exception of a subsequent complaint that the JCC described as “temporary.”  The JCC found the Claimant to be credible and accepted his testimony that he forgot the details regarding the two prior MVA’s.  As a result, the JCC denied the E/C’s affirmative defense that the Claimant violated F.S. 440.09(4)(a) and awarded the Claimant fees and costs for defending the affirmative defense.   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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5-02-2017- 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.