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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 Walker (Sarasota)(Matt Bennett) – Denied attendant care as not medically necessary, awarded other medical. The claimant injured her left knee/foot in 2011, developed CRPS, and is receiving  PTD and SSDI benefits.  Her initial pain management doctor recommended an electric scooter with a lift years ago.  She was provided the scooter but never got the lift because her vehicle would not support it.  Once she got a new vehicle she requested the lift and the E/C denied as not medically necessary.  The claimant testified that she falls 2-3 times per day and has seizures 2-3 times per day.  She stated that if she had a lift for her scooter she would use it more also.  Dr. Burns, her pain management doctor, felt that the use of the scooter would increase her independence/mobility and help with her mental state.  The JCC found this lift was reasonable and medically necessary and awarded it.  She also requested attendant care, a left knee x-ray and a psychiatric evaluation from the E/C.  The E/C stated that the x-ray and psychiatric evaluation were authorized but did not have information as to a date/time of any appointments.  The JCC agreed with the claimant that such benefits could be awarded since there was no evidence any appointments were set and awarded the x-ray and evaluation.  As to the attendant care, the claimant’s daughter testified that she stays with her mom to watch her from 7am to 6pm every day to help out because her family doesn’t feel the claimant can be alone.  Dr. Jones who is a neurologist did testing and confirmed there was no evidence of true seizures as suffered by the claimant so she had either conversion disorder or was faking the seizures.  The JCC accepted this doctor’s opinions there was no true evidence of seizures and the attendant care was not medically necessary.   Click here to view Order

JCC Hedler (WPB)(Andy Borah) – Granted misrepresentation based on the claimant providing a false SSN to an authorized WC medical provider and the claimant’s failure to plead waiver and estoppel on the Pretrial Stipulation. The claimant was in the U.S. illegally and had an accident resulting in a low back injury. She was authorized to treat at MD Now. Her employer advised her that she must show her social security card at MD Now in order to be seen. The claimant wrote an invalid SSN on a Spanish language MD Now intake form. The form included a fraud warning. She admitted in deposition that she wrote an invalid SSN on the form, but lacked any intent to do so to obtain benefits.  She argued that she detrimentally relied on the incorrect information from the Employer that she had to provide her SSN in order to be seen at MD Now. The claimant also argued estoppel on the basis that the misrepresentation was made prior to the carrier sending the informational brochure. The JCC found that the claimant failed to assert estoppel on the Pretrial Stipulation and those arguments were therefore waived.  While the judge believed that the claimant relied on the Employer’s instruction when she listed her SSN, that was relevant to an estoppel analysis, which was waived.  The JCC held that the E/C met its burden in establishing misrepresentation and barred all further WC benefits.   Click here to view Order

JCC Merit Orders

Compensability/SOL

JCC Anderson (Daytona Beach) – Presumption claim – Denied compensability of hypertension, medical and indemnity benefits. The JCC found that the claimant was not entitled to the statutory presumption because he did not prove his hypertension resulted in disability. The claimant was a 55 year old State Trooper who performed commercial vehicle inspections and been so employed since 2007. He had been diagnosed with hypertension for several years before an incident in Dec. 2017 when he experienced his heart racing, chest pain and tightening after doing a walk around inspection and in brief episodes throughout the rest of the day. He had consumed 3 cups of coffee that morning before the incident. At the end of the day, he went to the hospital and was diagnosed with chest pain, probably secondary to GERD. The claimant secured a records review IME with Dr. Borzak who concluded that the claimant was disabled due to hypertension. The E/C’s IME Dr. Nocero performed a full IME with physical examination and opined that his hospitalization for chest pain could have been caused by a number of conditions, including GERD or cervical disc disease, and that he was not disabled during his hospitalization or thereafter due to hypertension. The JCC accepted the E/C’s IME opinion and found that the claimant failed to prove he was hospitalized or otherwise restricted from work due to hypertension and, without the benefit of the presumption under 112.18(1)(a), there was no evidence the claimant’s hypertension was work-related.     Click here to view Order

JCC Stanton (Gainesville) –Awarded compensability and medical treatment for an exacerbation of the claimant’s pre-existing arthritis in his right knee. The claimant had two compensable accidents when he stepped in a hole between two pallets and became entangled in straps while trying to secure a tarp to his truck. The E/C authorized treatment to the claimant’s left knee but denied treatment for the right knee based on E/C’s assertion that he did not fall on both knees, untimely reporting, and that he did not complain about the right knee until months later. The JCC found that the employer had actual knowledge of injuries to both knees within 10 days of the accident based on the employer’s testimony that the PCP called her personally and asked for authorization to treat both knees on the claimant’s first visit, at which time the employer authorized the left but denied the right. The initial patient intake form listing bilateral knee complaints was also strongly considered by the JCC.  The JCC awarded compensability and medical care of the exacerbation of the claimant’s pre-existing arthritis on the right knee.  Click here to view Order

JCC Pitts (Orlando) – Rejected misrepresentation defense, but awarded  no benefits as the claimant failed to establish that an accident occurred at work. The claimant alleged a low back injury after a lifting incident. The E/C  initially accepted compensablility until it was discovered that the date of accident and mechanism of injury (lifting) alleged in the petition differed from the dates and histories given to medical providers, some of which reported a fall while others reported a pulling or lifting incident. None of the hospital or PCP visits in the days following the alleged incident reported the injury as work related. In fact, the claimant answered “NO” to the question “Is this related to an auto or work comp accident?” The JCC found that the E/C did not meet its burden to prove that the claimant intentionally misrepresented having an accident at work. While the JCC generally found the claimant credible at trial, he found that the claimant did not meet his burden of establishing an occupational cause of his low back injury and accordingly he did not establish his claim for TTD/TPD benefits.    Click here to view Order

JCC Jacobs (Miami) - Awarded compensability. The claimant alleged low back and left shoulder injuries while lifting a heavy battery. The E/C denied compensability based on untimely reporting,  no medical evidence of an injury and the need for medical care is due to a pre-existing condition. The JCC found the claimant credible and accepted his testimony that he reported the accident immediately and was told by his employer to treat under his health insurance and not to say that he was injured at work. The claimant treated on his own and underwent diagnostic testing which revealed a herniated disc. The claimant’s IME Dr. Ellowitz diagnosed lumbar herniation with nerve impingement as well as a partial rotator cuff tear. He opined that MCC was the work accident, the claimant was not at MMI and had restrictions since the accident date. The E/C submitted no medical evidence. The JCC awarded authorization of a PCP and TTD/TPD.    Click here to view Order

Permanent Total Disability

JCC Spangler (Tampa) - Denied PTD.  The claimant was a 64 year old Cuban immigrant who spoke English and was working as a vehicle transporter at an airport on 6/6/16 when he slipped and fell and injured his right knee, neck and upper back.  He had surgery to the knee and was placed at MMI on 7/16/17 with a 4% PIR and no restrictions.  Two orthopedists treated his neck and upper back.  They both placed the claimant at MMI and one released him full duty and the other assigned a 20lb lifting restriction.  All physicians said he could return to his former employment.  The claimant obtained an IME with Dr. Fiore who focused on the knee, assigned restrictions of no prolonged sitting, standing, walking and no lifting over 20lbs, but who said the claimant could do full sedentary work.  Claimant’s vocational expert, Jeffery Carlisle, did not do a labor market survey and opined on his own that the claimant had a poor prognosis for returning to competitive employment as he had no skills that would transfer to semi-skilled occupations despite his full duty work release for the knee and restrictions for the neck/back.  The JCC rejected this expert’s opinion as overbroad and not supported by evidence and denied PTD.    Click here to view Order

Indemnity Benefits

JCC Pitts (Orlando) - Initially presented to the JCC as a MSFO, the parties stipulated to proceed as if it were a Final Hearing. The JCC entered a prior Order finding the claimant’s cervical condition compensable and awarded TPD with applicable offsets for short term disability (STD) and SSD for a closed period.  Once the E/C obtained the claimant’s STD information, they paid TPD but they took a 20% offset for the STD arguing that the STD was 100% paid by the employer and they were entitled to a dollar for dollar offset.  The claimant’s AWW was $1,576.63 with max comp rate of $863.  During the period that TPD was awarded the claimant collected $6,300 in STD so the E/C took an offset from TPD paid to recoup the full $6,300.  The JCC held that the claimant’s weekly STD amount of $525 plus his max comp rate of $863 totaled $1,388 which was not more than the claimant’s AWW of $1,576.63.  Pursuant to Barrigan and Grice, the E/C is precluded from taking offsets for collateral benefits until the payout to the claimant reaches 100% of his/her AWW in combined benefits regardless of who funded the benefits or paid contributions to them.  Accordingly, the JCC held that there was no offset allowed in this case and awarded additional TPD.    Click here to view Order

JCC Dietz (Sebastian/Melbourne) – Awarded TPD, E/C entitled to a credit on IBs. Compensable slip and fall, injuring the claimant’s entire left side, which involved multiple body parts. She was seen by a PCP and referred to an ortho, Dr. Rojas. She reached MMI for the shoulder and hip, and the carrier paid out IBs. However, there were other areas that had not been worked up because Dr. Rojas’ office incorrectly believed he was only authorized to treat the left shoulder and hip. His office refused to schedule the claimant after she was MMI for the hip and the shoulder, despite the adjuster advising his office that he was authorized to treat other body parts. The medical evidence (Dr. Rojas) was uncontested that the claimant was not at overall MMI due to a lack of treatment. There was no evidence that the claimant turned down suitable employment within her restrictions. The JCC awarded TPD and granted the E/C a credit for the impairment rating previously paid out and reclassification of the IBs paid to TPD benefits.    Click here to view Order

Medical Benefits

JCC Winn (Pensacola) – Denied follow up appointment with Dr. Poelstra; rejected SOL  defense, but accepted defense of lack of medical necessity.  The E/C was estopped from asserting SOL because the claimant relied on an erroneous entry on a payout ledger to determine the last date of medical care, resulting in his PFB being filed more than a year after the last true date of medical care.  However, the JCC found that there was no medical necessity of a follow up appointment for the low back with Dr. Poelstra because the medical evidence showed that the claimant was “100% pain free” and doing “fantastic” in his post MMI visits and was symptom–free for 20 months without attempting to return to Dr. Poelstra until just before he believed the SOL would run. The JCC did NOT award  Attorney fees and costs for the claimant prevailing on the SOL issue.   Click here to view Order 

JCC Spangler (Tampa) – Awarded lumbar surgery and TPD. The claimant had a compensable low back injury with left sided radicular complaints. A left sided herniation was confirmed on CT and MRI studies within two months of the accident and the carrier authorized medical care and paid indemnity benefits without hesitation more than 120 days  from the accident date. Dr. Radjadhyaksha (Raj), the authorized orthopedic, provided conservative care and then placed the claimant at MMI.  Four months later, the claimant had a recurrence of pain, went back to Dr. Raj, and he rescinded MMI and recommended surgery.  A report from the claimant’s personal PCP showed low back pain and bilateral tightness in his quadriceps a few months before the work accident. The E/C denied the surgery and retained Dr. Jarolem as their IME. Dr. Jarolem concluded that the claimant’s herniation was pre-existing, based on the prior PCP records documenting low back pain with radicular symptoms and opined that the work accident was not the MCC of the need for the surgery. The claimant used Dr. Langone as his IME.  Dr. Langone concluded that the claimant’s prior symptoms were very different from those after the work accident.  The prior symptoms were bilateral tightness in the thighs, while his complaints after the work accident were left sided and they were corroborated by the CT and MRI studies. The JCC accepted Dr. Langone’s opinion over Dr. Jarolem’s and held that the work accident was the MCC of the need for the surgery. The JCC also held that, even if a prior herniation were discovered unequivocally, the E/C would have been estopped as a matter of law from denying compensability, given their early knowledge of the herniation and dessication shown on MRI. The JCC also held that the E/C was obligated to provide TPD benefits from the initial MMI by Dr. Raj up through the date he rescinded MMI, as “rescind” means the claimant never reached MMI and there should not have been a break in temporary benefits.   Click here to view Order

JCC Jacobs (Miami) – Awarded medical appointment. Rejected MCC defense. This was a compensable 2011 date of accident involving the knees. An MRI showed pre-existing osteoarthritis as well as two tears. The E/C provided medical care and later the authorized orthopedic, Dr. Wilkerson, opined that the MCC of the need for treatment was the pre-existing osteoarthritis. The claimant’s IME Dr. Edward Suarez agreed that she had pre-existing osteoarthritis but there was no evidence of any tears prior to the accident.  The E/C did not demonstrate any new injuries or a break in the causal chain.  The JCC held that the E/C cannot establish a break in the causation chain with evidence that the accepted injury never met the MCC standard in the first place. The JCC found that the E/C accepted compensability of the claimant’s bilateral pre-existing osteoarthritis and the tears. Click here to view Order

JCC Forte (Fort Lauderdale) – Awarded orthopedic care. The denial of the orthopedic was based on the E/C’s contention that the claim had settled. The E/C’s Motion to Enforce Settlement was denied by the JCC and then the appeal was dismissed by the DCA for lack of jurisdiction. Adjudication of the instant petition had been stayed pending the DCA decision. With no settlement agreement reached, the JCC granted the claimant’s request for an orthopedic knee specialist.   Click here to view Order

Attorney Fees

JCC Walker (Panama City) –Awarded amount of Attorney’s Fees and costs. The claimant’s counsel claimed 5 attorney hours and 2.2 paralegal hours in his Verified Motion for litigating the authorization of medical appointment.  The E/C contended that 3.4 attorney hours and 0.2 paralegal hours were reasonable.  The JCC accepted the E/C’s argument that five hours total were reasonably expended.  A stat fee would have been $130.00, at $26.00 per hour, which was unreasonable.  The JCC determined that 4.2 attorney hours at $250.00 per hour and 0.6 paralegal hours at the rate of $75.00 per hour were reasonable. The claimant’s attorney was not board certified but had over 38 years of workers’ compensation experience. The total fee award was $1,095.00 plus costs of $142.38. NOTE: This case has a good recitation of hourly fee determinations by this JCC and others based on level of experience, board certification, etc.    Click here to view Order

Motion Hearings

JCC Kerr (Miami) - Order Granting E/C Motion to Enforce Settlement      Click here to view Order

JCC Beck (Sarasota) - Final Evidentiary Order Granting Claimant's Motion for $2,000.00 Advance   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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10-5-2018- Hurley Rogner case law update