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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.  This week’s case author is Timothy Stanton.

  

HRMCW Cases

JCC Almeyda (Miami)(Brian Ricotta) – Denied: TTD/TPD; AWW/CR; alternate neurologist; authorization of lumbar spine ortho; and return visit to PCP.  The unrepresented claimant failed to offer evidence supporting his claims. Click here to view Order

JCC Merit Orders

 

Compensability

JCC Almeyda (Miami) – Denied claim in its entirety.  The claimant was attacked at the restaurant where he worked after clocking out.  He was waiting at the restaurant for his ride home.  He was attacked by a female co-worker’s boyfriend.  The JCC reasoned there was an insufficient nexus to the claimant’s employment.  The attack could have occurred anywhere and only fortuitously happened at work.  Click here to view Order

JCC Jacobs (Miami) – Denied all benefits upon a finding of misrepresentation by the claimant.  In his depo, the claimant was questioned in detail and denied doing yard work, carrying a ladder, jogging, and bike riding. At the conclusion of the depo, counsel for the claimant waived reading and signing.  Subsequently, the claimant viewed surveillance video showing he engaged in all of these activities.  The yard work he engaged in was fairly vigorous.  In his depo, he said he may have picked up two or three dry leaves around the yard.  Even though reading and signing of the depo were waived, the claimant completed an errata sheet after viewing the surveillance video.  He then attempted to attribute his false depo testimony to an attack of vertigo during his depo with associated confusion and memory difficulties.  The JCC found that the claimant made oral statements in his depo which were false, fraudulent, and misleading in order to obtain medical and indemnity benefits.  Moreover, the JCC found that the claimant’s completion of the errata sheet did not negate the fact that the claimant misrepresented himself in the depo.  The JCC further indicated that the completion of the errata sheet indicated the claimant had an intent to deceive.  The JCC also found that the claimant had misrepresented his complaints and condition to several treating physicians.  Click here to view Order

JCC Rosen (St. Petersburg) – Denied claims for compensability of left knee and denied TPD.  The claimant had a compensable back injury.  He attempted to relate subsequent left knee complaints to the IA. The JCC accepted the opinions of the authorized treating physician, Dr. Lonstein, over those of the claimant’s IME, Dr. Fiore, in finding the left knee condition was not related to the IA.  Additionally, the JCC denied the TPD claim and relied upon the testimony of the employer rep that work was available within the claimant’s restrictions, but the claimant did not avail himself of all of the hours available.  The claimant did not offer any evidence indicating there was some reasonable basis for him to not work all available hours.  Click here to view Order

Indemnity Benefits

JCC Weiss (Ft. Myers) – Awarded TPD.  The E/C argued 260 weeks of temporary disability benefits were paid out (taking into account lost wages of $31k paid per a federal suit settlement agreement).  The JCC found the terms of the federal settlement agreement specifically preserved any lost wage claims in the WC case.  Click here to view Order

JCC Young (Tampa) – Awarded TPD and denied request for different pain management specialist closer to claimant’s home.  The E/C defended the TPD claim on grounds the claimant was at MMI for ankle and back injuries.  A subsequent referral for pain management took the claimant out of overall MMI and TPD was awarded.  The claim for authorization of pain management specialist closer to the claimant’s home was denied.  The authorized pain management specialist was 32.5 miles from the claimant’s home and transportation was provided by the E/C.  This was deemed reasonable by the JCC.  Click here to view Order

Attorney Fees

JCC Stephenson (West Palm Beach) – Awarded claimant’s attorney fee of $13,817.00 (33.7 hours x $400.00 per hour).  The E/C failed to file a response or appear at the fee hearing.  The JCC reasoned she had an independent duty to scrutinize the fee claim and awarded $400.00 per hour instead of $450.00 per hour which was claimed.  Click here to view Order

JCC Forte (Ft. Lauderdale) – Awarded claimant’s attorney a guideline fee of $3,987.50 on a washout of $32,375.00.  Counsel for the claimant sought a 25% fee on the settlement ($8,000.00) which was denied by the JCC. Of note, counsel for the claimant was also seeking approval of a carrier paid fee of $17,525.00.   Click here to view Order

Motion Hearings

JCC Rosen (St. Petersburg) – Denied E/C’s Motion to Enforce Settlement Agreement.  The JCC found the settlement agreement of the parties was vitiated.  The parties agreed to settle the case without annuitizing the MSA.  The adjuster was unaware of company policy requiring MSA’s over $10k be annuitized.  The JCC found this unintentional mistake of fact voided the settlement agreement.  Click here to view Order

JCC Anderson (Daytona Beach) – Granted Claimant’s Motion to Enforce Mediation Agreement.  The parties entered into a non-contingent settlement agreement.  Before the settlement documents were executed, the injured worker passed away.  The Claimant’s estate enforced the settlement agreement which the JCC indicated was binding.  Click here to view Order

JCC Stanton (Gainesville) – Granted E/C’s Motion to Enforce Settlement.  The parties entered into a binding settlement agreement on 11/14/18.  On 11/20/18, the E/C sent claimant’s counsel the settlement documents which the claimant executed without notarization.  The JCC reasoned the signed settlement documents indicated a binding, enforceable settlement agreement had been reached.  Click here to view Order

JCC Young (Tampa) – Denied Motion for Advance.  The claimant offered nonspecific allegations pertaining to financial need and financial arrearages.  The claimant blamed his loss of income on a restriction against driving, but offered no evidence of this restriction.  The E/C offered DWC-25 forms which contradicted the claimant’s assertion.  Additionally, there was evidence suggesting the claimant was driving for Lyft post-accident.  The JCC found it was within her discretion to deny the advance. Click here to view Order

JCC Winn (Pensacola) – Awarded $2k advance with provision for recoupment of 20% by E/C.  The E/C argued the claimant failed to establish a substantial reduction in wages post-accident.  The JCC reasoned the payment of TTD and TPD benefits by the E/C established wage losses of 36% and 33% post-accident.  Click here to view Order

JCC Clark (Ft. Myers) – Denied E/C’s Motion to Enforce Settlement.  The E/C offered emails between counsel, a Notice of Settlement filed by claimant’s counsel, and testimony by the E/C attorney indicating a binding settlement agreement had been reached.  However, the claimant testified he would not have agreed to a general release as he was pursuing a retaliation and wrongful termination suit.  The JCC reasoned the claimant did not give his attorney unequivocal authority to settle his case on the E/C’s terms requiring a general release.  Click here to view Order

JCC Young (Tampa) – The claimant filed a Motion to Enforce Settlement Agreement wherein the E/C agreed to authorize shoulder surgery and post-surgical PT.  The JCC reasoned she could not enforce the mediation agreement, but did enter an Order requiring compliance with the substance of the mediation agreement within 10 days.  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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05-10-2019- Hurley Rogner case law update