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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 Arthur (Lakeland) (Paul Terlizzese) – Granted E/C’s Motion to Enforce Settlement.   Click here to view Order

 

JCC Merit Orders

Compensability/SOL

JCC Humphries (Jacksonville) – Denied statute of limitations defense, authorization of Dr. Ortega, Dr. White, and Dr. Gonzalez-Perez, claims for reimbursement of treatment from those physicians, and period of indemnity benefits.  Awarded TPD from 3/13/18-7/26/18, authorization of physician to treat claimant’s neck and shoulder conditions. The claimant sustained compensable accidents in March and May of 2015 to the back and right shoulder.  The claimant was last seen at Concentra in July 2015, when he was placed at MMI, 0%.  This was the last authorized care and indemnity paid.  The Judge rejected the claimant’s argument that he didn’t receive proper notice of the Statute of Limitations in Spanish, noting that is not a statutory requirement.  However, the Judge found that the E/C made misrepresentations to the claimant following the completion of his treatment that he relied upon to his detriment (that his condition was unrelated to his accident or injuries, that the request for further care was denied, and that his case was closed, causing the claimant to seek care with his personal physician Dr. Ortega), and was estopped from relying on a statute of limitations defense.  However, there was no evidence that the claimant asked for Dr. Ortega to be a one-time change, and therefore he was not authorized.  The claimant never requested the E/C provide the treatment or surgeries provided by Dr. White or Dr. Gonzalez-Perez, and therefore their care was also unauthorized.  The JCC did find that the MCC of the need for the treatment provided by those doctors was the industrial accident, and awarded TPD from the date the claimant saw his IME.  He denied other indemnity, because there was no competent evidence that established what the claimant’s work status would have been and for how long.   Click here to view Order

JCC Havers (Miami) – Denied all benefits. The claimant alleged exposure to concrete dust while setting up for Art Basel 11/24/17-12/4/17 which resulted in exacerbation of his COPD.  The E/C denied the accident.  The claimant testified while working that there was dust and debris in the air from workers milling concrete before he started work.  The claimant testified he used his inhaler multiple times on 12/4/17 but it wasn’t effective and he was coughing up “chunks of concrete.”  On December 5th, the claimant called 911, and provided a history of shortness of breath that gets worse when walking and intermittent chronic cough for 3 years.  The claimant provided a history of smoking 1-3 packs of cigarettes a day, and also stated that he worked in a dusty environment and wasn’t sure if his shortness of breath was due to possible allergens at work.  The claimant had seen his PCP on 11/15/17 and told him he was using his inhaler more frequently than usual and smoking heavily.  The claimant treated on his own with a pulmonologist, who he told that he had quit smoking, then obtained an IME.  The claimant’s IME (Rosenbaum) stated that the claimant’s COPD was pre-existing, that the claimant significantly underestimated his smoking history (he said ½ pack per day), and questioned whether the claimant stopped smoking because of the smell of tobacco on his clothes and inflammation from cigarette smoking, but nevertheless diagnosed the claimant with an exacerbation of underlying COPD.  He acknowledged that he did not feel the claimant was exposed to a very high level of concrete dust, and acknowledged many things could trigger a COPD exacerbation including stress and cold weather.  The E/C’s IME (McCluskey) opined that there was no evidence that the claimant’s complaints were a result of exposure to “dusty” conditions at the Art Basel project.  The JCC found that the claimant was unreliable in his testimony and had not met his burden of proof, and that the claimant did not sustain an accident in the course and scope of employment.    Click here to view Order  

JCC Johnsen (West Palm Beach) – Bifurcated hearing, denied claim that Employee/Employer relationship existed with Employer #1, Polcon, Inc. Claimant voluntarily dismissed with prejudice Employer #2, CAP Carpentry, Inc. the day before trial, as they had reached a settlement.   The claimant testified he worked for a man named Arturo Curreno, who paid him in cash, gave him rides to jobs, provided tools, and instructed him.  He believed Alfredo Hernandez gave the jobs to Arturo, who got jobs from Polcon.  The owner of Polcon testified that he subcontracted with CAP Carpentry, and that his contact was Alfredo Hernandez.  He advised that he received invoices from Alfredo Hernandez as a subcontractor, and paid him by checks made out to CAP Carpentry.  Arturo Hernandez testified that he did not work for Polcon, but for a man named Jose.  The Judge found that Jose worked for CAP Carpentry, and that the claimant was not an employee or statutory employee of Polcon.  He further found that the claimant did not meet any of the four elements of test from Saudi Arabian Airlines.     Click here to view Order

JCC Stanton (Gainesville) – Denied compensability of claimant’s heart disease condition, TT/TPD benefits, care with a cardiologist or other physician. Prior to being hired as a correctional officer in 2005, the claimant suffered from congenital heart disease which required implantation of a pacemaker and semi-annual visits with a cardiologist.  The claimant had a pre-employment physical which the E/C IME said showed heart disease (pacemaker rhythm on EKG) and which the claimant’s IME said did not show heart disease, although he admitted the EKG was abnormal.  The claimant also admitted in his pre-employment medical questionnaire that he had pre-existing cardiac disease and a pacemaker.  In November 2017 the claimant had shortness of breath and fatigue and was diagnosed with cardiomyopathy.  The JCC found that the abnormal EKG was evidence of pre-existing heart disease and the claimant was not entitled to the presumption.  The claimant also argued that cardiomyopathy is a different type of heart disease from his pre-existing congenital heart disease, and therefore the presumption should apply since he didn’t have evidence of cardiomyopathy in his pre-employment exam.  The JCC rejected this, stating that the plain language of the statute says that the exam must “have failed to reveal any evidence of… heart disease.”  Since both conditions were “heart disease” the presumption still did not apply.  Finally, the JCC found that even if the claimant were entitled to the presumption, that the E/C rebutted such presumption by their IME’s testimony that the cardiomyopathy was due to genetic causes.    Click here to view Order

JCC Arthur (Lakeland) – Denied compensability of hypertension, medical care with cardiologist, internal medicine, or PCP for hypertension and impairment benefits. The claimant was a police officer who was diagnosed with hypertension.  Her pre-employment physical was normal.  The claimant felt chest pressure/pain, headache, and vision issues while driving to and first arriving at work.  She went to a healthstat clinic provided to city employees and they referred her to an urgent care/ER, and assigned no restrictions.  The claimant went to urgent care where she had testing and was diagnosed with resolved chest pain, most likely secondary to elevated blood pressure.  No restrictions were assigned.  The JCC found that there was no evidence that the claimant’s chest pain/pressure was caused by her hypertension.  He also rejected the claimant’s IME’s (Mathias) position that the claimant would have been disabled as inconsistent with the opinions of the doctors who saw her contemporaneously, and found that the claimant missed work to undergo testing and not because of an inability to perform her job duties.  As the claimant did not have a disability, she was not entitled to the presumption, and compensability and care was denied.    Click here to view Order

Indemnity Benefits

JCC Clark (Ft. Myers) – Denied adjustment of the AWW and TT/TP benefits. The claimant was involved in a compensable accident and sustained injuries to her right wrist. Three 2-page DWC-25 forms were presented at final hearing. However, none of the forms were signed by the claimant’s authorized treating physician. Instead, they were signed by a physician’s assistant and simply had the authorized physician’s name listed in the Attestation Statement. The E/C raised a Hearsay objection as the records were never properly authenticated. The JCC sustained that objection. No other medical records or payroll records were proffered to prove the need for an adjustment to the AWW or entitlement to temporary disability benefits. The JCC found that solely the testimony of the claimant herself was not enough to prove an adjustment to the AWW or TT/TP for the requested time period.  Click here to view Order

JCC Lorenzen (Tampa) – Denied TTD; Awarded TPD; Awarded E/C paid attorney’s fees and taxable costs. The claimant alleged injuries to the left knee, left wrist, right elbow, cervical, thoracic, and the head, which included memory loss, headaches, dizziness, and falling. The E/C accepted compensability of the head injury but denied responsibility for all others. The claimant’s treating physicians noted that she was a poor historian and she made inconsistent complaints to several physicians including her IME, the E/C’s IME, and the EMA. After reviewing all records and testimony, the JCC concluded the claimant was at MMI, with no PIR, or restrictions for the head injury. The party’s respective IME physicians were in conflict regarding the claimant’s orthopedic injuries. The JCC found that the claimant had suffered a concussion and injuries to her left knee, thoracic spine, right elbow, and left forearm in the industrial accident. However, several of those injuries had resolved and the only continued complaints at the time of the final hearing were post-concussion symptoms and left knee pain. The claimant presented no medical evidence from any authorized provider that the she was ever placed on a no work status and was thus not entitled to TTD. However, medical evidence was presented that placed the claimant on restrictions for the left knee injury. Therefore, the claimant was entitled to TPD benefits.  Click here to view Order

JCC Beck (Sarasota) – Awarded TPD on remand. The JCC awarded TPD in May 2017.  The 1st DCA reversed and remanded with directions to make additional findings before entering judgment for the claimant or E/C.  The Judge accepted the claimant’s testimony over that of other witnesses, and found that the claimant retired only because she would otherwise have been terminated.  She found that it was justifiable for the claimant to leave employment because her restrictions were not being accommodated and she was having excessive absences due to her injuries.   Click here to view Order

JCC Lorenzen (Tampa) – Awarded TPD from 2/16/18 and continuing, with offset for actual earned income. The claimant sustained a compensable head and neck injury.  The claimant went a long period of time between seeing a doctor, but the JCC found that the claimant was not advised to go back or asked why he had not done so, and didn’t miss appointments.  She rejected the E/C’s argument that the claimant would not be eligible for TPD because he did not go to the doctor soon or often enough with the suggestion that if he had, he would have been released with no restrictions or placed at MMI.  The Judge found that the claimant had restrictions, and earned less than 80% of his pre-injury AWW numerous weeks.  She rejected that the claimant had no disability because (1) he occasionally earned more than 80% of his AWW, (2) because he believed he was told he could return to work full duty by a physical therapist, (3) because his new job occasionally required him to exceed his restrictions thus demonstrating he had no disability and, (4) because his symptoms were subjective in nature.  She also rejected the voluntary limitation of income defense, finding that the employer never offered the claimant work within his restrictions.  Finally, the JCC rejected that the E/C could include health insurance premiums paid by the claimant’s new employer as income against TPD.    Click here to view Order

JCC Sojourner (Orlando) – Denied increase in AWW.  Awarded TPD from 11/22/17-present. The claimant was hired as an on-call employee, who was supposed to be limited to 25 hours per week but never more than 40 hours per week.  The claimant did work some overtime, but once discovered, the HR supervisor advised it wasn’t to happen again.  The employer indicated that the claimant was hired to assist in training dispatchers, while the claimant testified she was hired to attend dispatcher class so that she could become a dispatcher when she had the necessary full time experience.  The claimant sustained a compensable accident when on a ride-along required as part of dispatcher class.  The claimant’s doctor said she was full duty on 11/21/17, but also indicated the claimant had to use “gait aids” and could only do activities as tolerated.  The E/C stopped paying indemnity as of 11/21/17.  The JCC found that the claimant’s AWW should be contract of hire because, although the claimant was attending the class, she was auditing it and not doing so as a student, and there was no testimony regarding what work would have been done once the five week class finished, so actual wages were not representative of prospective earnings.  She also found that the claimant was not released to full duty since the work was only as tolerated, and therefore was entitled to indemnity.     Click here to view Order

JCC Newman (Tallahassee) – Amended Order from 8/28/18. Denied TPD/TTD from 6/10/16 to present, $2,000 advance, reauthorization of Dr. Stoetzel, and E/C’s fraud defense.  Awarded psychiatrist and TTD from 3/15/16-6/9/16. The claimant sustained a compensable injury to the head, neck, shoulders, upper, and lower back.  One month after the accident, the claimant reported feeling better physically but had increased anxiety and panic about returning to work.  The claimant reported a history of psychiatric issues and anxiety.  The claimant was referred to a back specialist and psychiatrist, with the 3/15/16 DWC showing the claimant had no physical restrictions, but PTSD, and a later DWC-25 showing could work a sedentary job once cleared by psychiatry.  The E/C authorized an ortho (Stoetzel), who treated the claimant and released her to MMI, 0% on 6/9/16.  The claimant saw a psychiatrist (Chokhawala) on 7/5/16, who recommend psychological testing to rule out symptom exaggeration/malingering, but no additional care was authorized.  The Claimant’s psych IME later testified that the claimant had an aggravation of her pre-existing psych condition and that the accident was the MCC of the condition, where Dr. Chokhawala said he could not state whether the accident was the MCC.  The psych EMA (Pathak) agreed that the claimant had an aggravation, that she wasn’t at MMI, and that she was unable to work from a psychiatric perspective, and based on this opinion, further psychiatric care was awarded.  The ortho EMA (Koulisis) opined that the claimant had at most a temporary physical exacerbation, and agreed with Dr. Stoetzel’s MMI date, and based on this opinion further physical care was denied.  The JCC found that the claimant was not entitled to indemnity for psychiatric restrictions after she reached physical MMI because no permanent benefits were being paid based on the 0% impairment rating and “When no permanent benefits are being paid (for the physical injury), there is no right to unlimited psychiatric indemnity benefits.”

The E/C raised a fraud defense based on the claimant’s failure to disclose prior low back problems both in deposition and to doctors.  The JCC found that although the claimant denied prior low back problems in depo, she did acknowledge treatment with a chiropractor and rheumatologist, and found that the claimant did not intent to misrepresent her history.  She also found that the claimant did not intentionally lie to physicians, noting that she mentioned prior back pain with labor and in association with kidney issues, and that she perhaps forgot about her other back history as it had been more than four years prior.  She also found that the claimant’s symptom magnification and exhibition of unexplained pain behaviors were not sufficient for disqualification from benefits.  Finally, the advance was denied as the claimant did not testify to her financial need.   Click here to view Order

JCC Anderson (Daytona Beach) – Denied TPD, penalties and interest. The claimant had a positive drug test on the date of injury.  The claimant completed an employee assistance program, passed a return to duty drug screen, and returned to light duty work with the employer.  He signed a document agreeing to submit to random drug testing for a five year period.  He was terminated on 2/5/18 for failure to take a drug test, as the claimant argued he had just taken and passed one a few days prior.  The claimant argued that he did not refuse, but simply explained that he had just taken one.  The JCC found the claimant refused a drug test, and that refusal was good cause for his termination.  Because the claimant had returned to light duty work prior to his termination, the claimant did not meet his burden to connect his economic disruption to his compensable injuries.  The claimant testified that he applied for several jobs after his termination but no one wanted to hire him while he was on light duty.  The E/C reinstated TPD on 3/5/18.  The JCC found that the claimant’s unsuccessful job search may have been sufficient to connect his loss of income after 3/4 to his compensable injuries, but not for the period of 2/5/18-3/4/18.    Click here to view Order

Medical Benefits

JCC Anderson (Daytona Beach) – Denied E/C’s Motion to appoint EMA; Granted claim for ACDF surgery. The claimant was involved in a compensable industrial accident sustaining injuries to her neck and back. However, the E/C only accepted “non-degenerative” and “non-pre-existing condition” in regards to the cervical and lumbar injuries. The claimant came under the care of Dr. Michael Thomas who ordered a cervical MRI, which revealed multiple disc protrusions and a prior surgical fusion. Dr. Thomas diagnosed cervical pain and compensatory degenerative changes that he related to the industrial accident and recommended an Anterior Cervical Discectomy and Fusion. The claimant filed a PFB on 2/22/18 asking for authorization of the ACDF surgery. The E/C filed a response on 3/14/18 denying the surgery, which was 138 days after the claimant’s intimal date of treatment. The E/C obtained an IME with Dr. Steven Weber, who opined the surgery was not causally related to the industrial accident. The JCC found that the E/C did not deny compensability of the cervical herniations until 138 days following initial treatment. Therefore, the E/C waived the right to contest the MCC of the need for the surgery pursuant to the 120-day rule under 440.20(4), Florida Statutes.   Click here to view Order

 JCC Rosen (St. Petersburg) – Appointed EMA. The claimant suffered a compensable right hand/arm injury. A clear conflict existed between the claimant’s IME Dr. Martinez and the E/C’s IME Dr. Pandya in regards to the claimant’s need for psychiatric care.   Click here to view Order

JCC Almeyda (Miami) – Summary order dismissing claim for surgery.   Click here to view Order

JCC Anderson (Lakeland) – Denied authorization of alternative neurosurgeon, denied entitlement of attorney’s fees and costs. The claimant had been authorized to treat for her 1988 DOA with Orlando neurosurgeon Dr. Greenberg, who passed away on January 1, 2018. The claimant filed a PFB seeking authorization of a neurosurgeon, specifically Dr. John Jenkins, to assume care. Dr. Jenkins would not take the claimant as a patient and the E/C timely authorized Dr. Jon Amann, who was located in Winter Haven, 45 miles from the claimant’s home. The JCC found that the E/C made a reasonable yet unsuccessful attempt to find a neurosurgeon closer to the claimant. However, 45 miles was not an unreasonable distance for the claimant to travel.   Click here to view Order

Attorney Fees

JCC Anderson (Lakeland) – Awarded fee of $50,118.75 (182.25 hours @ $275/hr) and costs of $3,200.00. The parties stipulated to costs.  The E/C argued for a statutory fee on benefits, which the JCC found was unreasonable.  The Judge found that 54.7 of the claimant’s attorney’s requested hours were excessive, unrelated to benefits for which a fee was due, clerical, or otherwise unnecessary, but the remaining 182.25 were reasonable and related.  The parties agreed that $250-$300 per hour was reasonable for Central Florida.   Click here to view Order

Motion Hearings

JCC Stephenson (West Palm Beach) – Granted E/C’s Motion to Enforce Settlement; Denied E/C’s Motion to Compel Execution of general release and resignation for lack of jurisdiction. The parties entered into a lump sum settlement agreement at mediation for $25,000.00, covering two dates of accident. The claimant’s attorney signed the mediation agreement on the claimant’s behalf. The settlement was contingent on approval by county administration, which was given two weeks later. The E/C made several efforts to get the settlement documents signed but as of the date of the hearing, the documents had yet to be signed by the claimant. At the hearing, the claimant testified that she appeared at mediation by phone and was not in continuous talks with her attorney during mediation. She had never seen the mediation agreement but did not deny the terms of settlement. The JCC found that the claimant was aware of all material terms of the settlement although she had not seen the mediation agreement. However, there is no authority for the JCC to compel the claimant to sign the general release and resignation documents under chapter 440.   Click here to view Order

JCC Massey (Tampa) – Granted Claimant’s Motion for $2,000.00 Advance. The claimant was working in a light duty capacity with the employer. However, when the employer moved to a new location, a dispute arose as to whether the claimant was ever notified as to whether the light duty work would no longer be available. In any case, the JCC found that the claimant proved that he had not returned to the same or equivalent employment with no substantial reduction in wages. He also proved that he was more than $2,000.00 behind in his monthly rent payments. In the alternative, the JCC found that the claimant suffered a substantial loss of earning capacity and demonstrated a sufficient nexus between the need for the advance and the industrial accident.   Click here to view Order

JCC Rosen (St. Petersburg) – Granted E/C’s Motion for Taxable Costs. Pro Se Claimant testified at trial that he wanted to withdraw any pending petitions for benefits. The E/C then filed an amended Motion to Tax Costs as prevailing party. Because the PFB’s on behalf of the claimant were voluntarily withdrawn, pursuant to F.S. 440.34(3), Rule 60Q-6.124(3), and existing case law, the E/C was the prevailing party and entitled to reimbursement of taxable costs.   Click here to view Order

JCC Lorenzen (Tampa) – Denied E/C’s Motion to Tax Costs.  Click here to view Order

JCC Stephenson (West Palm Beach) – Granted Claimant’s Motion for $2,000.00 Advance after E/C did not file a response.   Click here to view Order

JCC Sojourner (Orlando) – Granted claimant’s Motion for $2,000.00 Advance. The E/C acknowledged that the claimant met the statutory threshold for an advance but had not pled the motion for advance with specificity and did not show a diminishment in earnings. The JCC found the claimant pled in the motion that the advance was to be used to pay for prosecution of his claim, specifically the costs of an IME. 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:

7-27-18- Hurley Rogner case law update

8-10-18- Hurley Rogner case law update

8-17-18-Hurley Rogner case law update

8-24-18- Hurley Rogner case law update