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Thank you to our Law Firm Service Partners for providing this week's Case Law Update! 

  

HR LAW Winter Park
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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@hrlawflorida.com) with questions or comments on any of the listed cases.

 

For the week of June 8, 2020 the case authors are W. Rogers Turner, Jr. and Evan Heffner.

 

 

HR Law Cases

 

JCC Sojourner (Orlando)(Bill Rogner) – Denied death benefits.  The sole question was whether the deceased worker’s mother and her minor children were dependents of the deceased employee.  One of the factors in determining dependency is whether the decedent was able to support himself in addition to supporting others.  At the time of death, the decedent was 16 years old and was receiving SSI benefits, but these benefits were used by his mother to help support the family.  The claimant was not able to prove that the decedent was able to support himself, let alone others.  Click here to view Order

JCC Forte (Fort Lauderdale)(Vanessa Irvin) – Dismissed all pending PFBs of pro se claimant.   Click here to view Order

 

DCA Cases

 

City of Jacksonville/City of Jacksonville Risk Mgmt. v. O’Neal, ___ So.3d ___ (Fla. 1st DCA 6/8/2020)

F.S. s. 112.18 Presumption/Trigger Theory

Prior 4/23/20 Opinion Withdrawn Following Motion for Rehearing

The DCA again considered this case, after a prior remand. They withdrew their prior 4/23/2 opinion.  In 2002, claimant was a 29 year old corrections officer. During off-duty non-work related sports training, he experienced light headedness, and subsequently underwent a cardiac catheterization on 6/26/02. The doctor intentionally induced arrhythmias, and the claimant alleged a WC claim as of that date. At a hearing in 2016, the JCC awarded compensability as to that injury, finding that although the atrial tachycardia was congenital, it could have been triggered by occupational stress under the presumption statute.  The E/C appealed, and the DCA remanded for findings related to the underlying condition and resulting diagnoses.  In this underlying Order, the JCC clarified that the diagnosis of atrial tachycardia degenerated into atrial fibrillation and job stress could have been a trigger.  The DCA analyzed the E/C’s burden to overcome the presumption, which is to demonstrate the accident arose from a non-work cause or causes.  The law also states that the condition may be compensable if a work-related cause triggers the ultimate diagnosed injury; or if an unknown cause triggers the injury. However, the trigger theory analysis is two-tiered and requires the E/C to overcome § 112.18(1)(a)’s presumption for both the underlying condition (the first tier) and, if applicable, the condition’s triggering event (the second tier). The DCA reversed and remanded because the medical evidence showed that Claimant’s peak exercise workouts in ’02 triggered the degeneration of his congenital heart condition into atrial fibrillation, and this evidence wasn’t evaluated as a non-occupational cause that would overcome § 112.18(1)(a)’s presumption.  They stated this diagnostic/intentional stress during the test causing arrhythmia is a non-work related cause.  They affirmed the denial of the August 28, 2014 workplace injury as asserted in the cross-appeal.          Click here to view Opinion

 

JCC Merit Orders

 

Compensability

JCC Sojourner (Orlando) – Denied all benefits based on no employer/employee relationship.  On the D/A, the claimant trimmed trees for Big Mike’s Tree Services.  Big Mikes was hired by Orlando Realty & Property Management Company (ORPMC).  Big Mikes did not have W/C insurance at time of accident, so the claimant alleged that ORPMC was his "statutory employer".  To be liable for claimant's injury as a statutory employer under FS 440.10(1) (b), ORPMC must have sublet to Big Mike's some contractual obligation it owed to a third party.  The shopping center in question was owned by The Shoppes at Sweetwater (the Shoppes).  The Shoppes had a lease agreement with tenants to maintain the premises, but did not agree to perform tree-trimming.  Since the Shoppes did not have a contractual obligation to perform tree-trimming, it cannot sublet any such obligation to ORPMC.  The JCC went even further to say even if the Shoppes had a contractual obligation to perform tree-trimming, it did not sublet that obligation to ORPMC as ORPMC’s contractual obligation was to arrange­ landscaping.  ORPMC arranged landscaping by hiring Big Mikes, thus fulfilling their contractual obligation, not subletting it.  The E/C relied on Batmasian v. Ballachino, 755 So. 2d 157 (Fla. 4th DCA 2000) which the JCC found to be directly on point.     Click here to view Order

 

Indemnity Benefits

JCC Sojourner (Orlando) – Awarded TPD/TTD, compensability, payment of medical bills and authorization of an ortho.  E/C asserted defenses of the coming and going rule, FS 440.092(2) and that the claimant’s condition was pre-existing in nature.  During the alleged industrial accident, the claimant fell in lobby of office building.  The claimant previously had knee replacement surgery and fell two previous times due to her knee giving out.  Dr. Lamoreaux testified that the claimant’s knee was stable following implant surgery, and both falls were explained away by tripping over a dog and a curb, respectively.  The JCC concluded that there was no evidence to show a pre-existing condition contributed or caused the fall.  Although the claimant fell in the lobby of the office building, she was able to establish a special hazard on the premises by providing evidence of a hazard sign near the location of the fall and thus her injury was found to be compensable.         Click here to view Order

JCC Pitts (Orlando) – Awarded penalty on late payment of death benefits.  The E/C argued that the claimant left behind three minor children which made it unclear who the payee was to be, so the late payment was outside of the E/C’s control.  Using §440.20(6)(a), the JCC held that the first installment of death benefits were due within 8 days of the D/A since the claimant’s death was immediate, and that each two week installment thereafter was due within 7 days from the end of the preceding two week period continuing until the benefits were no longer due under the provisions of §440.16(a).  For the time frame of 10/3/19 thru 10/16/19, benefits were due 10/23/19 but were not paid until 10/31/19.  The JCC cited the ruling in Mitchell v. Sunshine Cos., 850 So.2d 632, which held that when a carrier accepts a claimant as PTD and voluntarily paid installment benefits retroactively, a claimant seeking penalties on those benefits does not bear the burden of proving entitlement to PTD benefits, the date entitlement to PTD benefits began or when the carrier had sufficient information to determine entitlement to PTD benefits. The E/C has the burden to prove the payment was late due to circumstances outside of their control.  The JCC held the E/C did not carry their burden as the record did not contain any evidence showing the actions they undertook following the claimant’s death, and even further, the E/C took a position which required the claimant to jump through hoops to get the death benefits paid.  Click here to view Order

 

Medical

JCC Arthur (Lakeland) – Denied left shoulder rotator cuff repair, pain management, TTD/TPD, awarded compensability of bilateral shoulders and manipulation of right shoulder under anesthesia.  The E/C accepted compensability of the bilateral shoulders without qualification or limitation but argued there had been a break in the causal chain between the claimant's compensable shoulder conditions and the treatment now requested, as is required by Jackson v. Merit Elec., 37 So.3d 381 (Fla. 1st DCA 2010).  Although E/C presented evidence that the industrial accident was never the MCC of the injury, E/C failed to provide any evidence that there was a break in the chain.  Since the E/C accepted compensability of the entire shoulder, the JCC found the E/C was precluded from relying on the EMA's opinion that all of the claimant's shoulder conditions pre- existed the industrial accident.  The JCC awarded the requested surgery regarding the claimant’s right shoulder since the evidence showed the claimant underwent extensive conservative treatment without improvement, but no evidence the claimant participated in conservative treatment for the left shoulder.           Click here to view Order

JCC Rosen (St Petersburg) – Appointed EMA.  Claimant’s IME recommended surgery and opined that the claimant is not at MMI, while the authorized provider placed the claimant at MMI with no surgery recommendation.  The JCC found a clear conflict.         Click here to view Order

JCC Rosen (St Petersburg) – Appointed EMA.  The authorized provider recommended a total knee replacement. The E/C’s IME also recommended total knee replacement but opined the cause of the need for the surgery is due to a pre-existing condition.  The JCC rejected the claimant’s argument that E/C’s IME opinion is unreliable as the opinion is two years old, while the claimant continues to treat with authorized provider, as claimant did not provide any support for their argument.         Click here to view Order

JCC Almeyda (Miami) – Denied return appointment with 1x-change PCP.  PCP Dr. Droblas initially treated a right ankle/foot injury.  Shortly thereafter in 2013, the claimant filed a PFB for authorization of a podiatrist.  An order was entered in 2014 denying the claim, for lack of MCC or medical necessity as to the foot/ankle.   The claimant then requested a 1x-change in PCP.  Instead of relying on the 2014 order, the E/C provided a 1x-change in Dr. Chapnick but only authorized Dr. Chapnick to treat the ankle.  The JCC answered affirmatively the question “does the authorization of treatment after a final order to the contrary, reopen the issue of said treatment”?   The E/C effectively reopened the case by authorizing the 1x-change, but the E/C only partially effectuated the claimant's request for a 1x-change, and now the claimant was seeking a return visit with Dr. Chapnick to effectuate the 1x-change regarding the foot.  Although Dr. Chapnick was only authorized to treat the ankle, it is clear from his testimony that he examined and evaluated the claimant’s foot, and concluded no treatment was needed for the foot.  The JCC held that the fact the E/C did not fully comply with the 1x-change request didn’t matter since the 1x-change determined no further treatment was necessary.  The JCC also stated the claimant does not have an absolute right to return to his 1x-change physician if the E/C can prove no further treatment is necessary, as in this case.       Click here to view Order

JCC Arthur (Lakeland) – Denied claims for treatment of the thumb and psychiatric care.  The claimant last received treatment for his 2004 injury….in 2004, but filed PFB in 2019.  The JCC held that the E/C’s failure in obtaining MMI for the claimant’s thumb injury does not estop the E/C from alleging SOL.  The claimant's failure to seek additional medical treatment for nearly 15 years following her accident and thus allowing the expiration of the SOL cannot be excused by the E/C’s failure to compel the claimant to a follow up medical visit she had not requested, for the singular purpose of obtaining an MMI opinion.  The claimant’s testimony re: wearing a brace or taping her thumb was not sufficient to toll the SOL since no doctor told her to do those things and testimony did not show how often she would wear them.  Even if the SOL argument failed, the claimant still would not be entitled to psychiatric benefits as she failed to provide evidence that her physical injury was the MCC for her nervous/mental condition.  Regarding the 2018 D/A dealing with PTSD, the JCC held the claimant’s testimony was insufficient as she was unable to provide any amount of detail regarding the events which allegedly caused the PTSD, as the claimant cannot make wide-ranging assertions that her work as a first responder exposed her to traumatic calls.  The claimant also did not provide any medical evidence to back up her assertion re: PTSD.     Click here to view Order

JCC Newman (Tallahassee) – Granted authorization of MRI of left knee, EMG/NCV studies, neurologist and TPD.  Denied PTD.  Even though the claimant was previously placed at MMI, the JCC held that the requested medical treatments were medically necessary as all three physicians who testified in this case determined the claimant suffered a neuromuscular injury to his quadriceps muscle and the claimant continued to have a defect with his quad which may be causing his issues.  The JCC used the analysis from Chance v. Polk County School Board, 4 So. 3d 71, 73 (Fla. 1st DCA 2009) which states that when the purpose of a diagnostic test is to "determine the cause of the claimant's symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compensable."  Since the JCC accepted the opinions of Dr. Jesse Lipnick, the claimant’s IME, regarding ongoing medical treatment, the JCC also accepted Dr. Lipnick’s opinion that the claimant was not yet MMI because there is lasting improvement to be achieved with additional treatment. PTD denied since the claimant is not at MMI.   Click here to view Order

JCC Hedler (WPB) – Granted Motion to appoint EMA.  The claimant objected based on timelines, as a recommendation for surgery was made on 11/26/19, and the conflict arose after the carrier performed a utilization review on 1/23/20 (motion filed 5/26/20).  The JCC held that a utilization review is not admissible, and the conflict arose when E/C’s IME (Dr. Jordan Grabel) report came out on 5/18/20, therefore the motion was timely.  The claimant also argued that the matter was premature as Dr. Grabel had not been deposed and his report did not reflect the conflicting doctor’s report.  Dr. Grabel performed an examination, reviewed diagnostics and medical records from the authorized ortho, so the JCC concluded there was no indication that review of additional records would make a difference.  Lastly, the claimant argued that the E/C waived medical necessity.  The claimant solely relied on the carrier’s response to a PFB, showing the response was filed 2/19/20 (PFB filed 1/14/20).  The JCC held that alone is not enough as the claimant has the burden of proving when the carrier first received the recommendation and when they first responded to same as the requirement for a response is not limited to a formal response to a PFB.        Click here to view Order

Attorney Fees

JCC Havers (Miami) – Awarded attorneys fees and costs.  Claimant’s attorney attempted to take the adjuster’s deposition.  The E/C tried to reschedule but claimant’s counsel objected since final hearing was two weeks later and the depo had previously been reset multiple times.  The adjuster failed to appear for the deposition.  The E/C argued that claimant’s counsel failed to comply with the 21-day safe harbor rule established by Fla. Admin. Code R. 60Q- 6.125(4)(a), but the JCC found that the adjuster's failure to appear at her deposition is not a violation 60Q- 6.125.  Further, the E/C argued that the fees/costs could have been avoided by simply agreeing to reset the deposition, but the JCC held that the claimant was not under an obligation to mitigate the expenses by rescheduling deposition with final hearing less than 30 days away. The E/C did not file a Motion for Protective Order either.      Click here to view Order

JCC Rosen (St. Petersburg) – Denied attorney’s fee lien.  The claimant attorney entered an appearance on behalf of the claimant and filed a motion to withdraw one week later.  Although the motion alleged that a PFB was filed by his office, there was no record of that.  The claimant attorney alleged that travel to and from the claimant’s house was required, and therefore the firm was entitled to a charging lien.  The JCC held that there is no provision in FS 440.34 which allows fee entitlement for representation only.       Click here to view Order

JCC Medina-Shore (Miami) – Overruled claimant’s objection to E/C paid fees/costs to prior attorney.  The prior attorney entered into a Joint Stipulation with the E/C to resolve the prior attorney’s outstanding fee lien.  The claimant argued he had standing to object to an E/C paid fee and costs to prior counsel and requested the fee/costs be paid to him instead.  The JCC held there is nothing in FS 440.34 or the 60Q rules that allows the claimant to dispute an E/C paid fee and costs when claimant's prior attorney is waiving his fee lien against claimant and claimant's counsel.  Further, there was a previous mediation agreement in which the E/C agreed to be responsible for the prior attorney’s fee.    Click here to view Order

Motion Hearings

JCC Weiss (Ft. Myers) – Granted E/C’s Motion for Summary Final Order.  Although confusion arose from prior Orders consolidating, and then un-consolidating two separate cases, the JCC granted the Motion as (in the absence of a response from the claimant) the evidence showed that the claim was subject to a prior settlement.       Click here to view Order

JCC Hedler (WPB) – Denied claimant’s motion to strike medical records.  The claimant alleged that the provider refused to provide medical records or conference with claimant’s counsel.  The claimant relied on McElroy v. Perry, 753 So.2d 121 (Fla. 2nd DCA 2000) and argued that the carrier’s motivation for requesting the examination was financial.  The argument failed as the JCC noted the 1st DCA held that McElroy is not applicable in workers’ comp.  Claimant’s counsel presented evidence showing his difficulty in obtaining a conference with the doctor, but failed to provide evidence establishing the carrier’s motivation or actions, or that the E/C would have been treated any differently in this situation.  The claimant did not even attempt to depose the provider to see if this was just a case of miscommunication.  The JCC held that the claimant failed to carry his burden.       Click here to view Order

JCC Rosen (St. Petersburg) – Denied Motion for summary final order.  The E/C did not provide any supporting evidence to show there were any remaining issues of fact.     Click here to view Order

JCC Dietz (Sebastian/Melbourne) – Denied Employer’s Motion for Summary Final Order.  The employer’s attorney did not have standing to bring a MFSFO on behalf of the carrier, who was unrepresented.  Even if they did have standing, the JCC held he would have denied the motion based on there being genuine issues of material facts as the carrier just recently responded to the pending PFB, without counsel.     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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