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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 August 31, 2020 and September 7, 2020 the case authors are Caitlin Golden and Marty Ebenger.

 

HR Law Cases

JCC Forte (Ft. Lauderdale)(Andy Borah) – Granted E/C’s Motion for Sanctions. The claimant’s attorney filed a PFB for reimbursement of mileage of $1.11 and attorney’s fees and costs. The claimant’s attorney faxed a good faith request to the E/C on July 3, 2020 and filed the PFB five hours later. The JCC determined that faxing a good faith request to an office closed in observance of a national holiday did not meet the statutory requirements of good faith.  The JCC awarded $250.00 as a sanction to deter subsequent similar conduct.     Click here to view Order

 

Federal District Court Case

Employers Insurance Company v. Redlands Christian Migrant Association, ___F. Supp. ____ (M.D. FL 9/2/20)

Retroactive Ins. Contracts/Motions to Dismiss

The District Court denied Wassau/Employers’ Motion to Dismiss, based upon SOL.  Wassau/Employers sued Redlands for failing to pay premiums under a retrospective insurance contract.  In such a policy, the insured pays small premiums during the policy term, but after the term, the insurer examines the loss activity and charges a retrospective premium.  Here Employers assessed a 500k premium, which Redlands failed to pay.  Wassau sued, and Redlands countersued, alleging that Employers accepted a claim 16 years earlier (1)  without investigating it properly (citing two prior WC claims of the individual) (2)  still paying benefits to the claimant, and (3) failing to settle, all causing them to incur additional premium. Employers moved to dismiss alleging the counterclaims fell outside of the five year SOL for breach of contract.  The District Court, although not determining the ultimate facts, denied Employers’ Motion, as the fact finder must determine, at least at the summary judgment phase  the date on which the cause of action accrues.   Employers argued it accrued in 2005, while Redlands argues the accrual is ongoing, as is the WC claim.  The court also rejected Employers’ alternative grounds for dismissal based on a more definite statement. Click here to view Opinion

 

JCC Merit Orders

 

Compensability

JCC Owens (Port St. Lucie) – Denied compensability. The claimant alleged a shoulder injury in early 2019. The E/C raised an MCC defense and a notice defense. With regard to the MCC defense, the claimant failed to present any medical evidence. During her deposition, the claimant denied any prior shoulder injuries or pain. However, the E/C discovered medical records indicating significant prior shoulder injuries, which led the JCC to conclude that the work related accident was not the MCC of the need for treatment. With regard to the notice defense, the claimant alleged that she notified two supervisors of the accident. The E/C presented the testimony of both supervisors, who denied notice of the injury within 30 days. Due to the claimant’s inaccurate medical history provided in her deposition, the JCC found that the claimant lacked credibility and denied benefits.    Click here to view Order

JCC Walker (Pensacola) – Denied compensability. The claimant alleged an unwitnessed accident involving a faulty freezer door. Prior to the accident, the claimant was terminated for performance issues. The store manager rehired him. His performance did not improve. The claimant did not report the work related accident until he was being terminated for the second time by the employer. The JCC found the accident to be suspicious as the employer had no complaints of a faulty freezer door and the freezer door passed inspection after the accident. The JCC also opined that the claimant presented no medical evidence to meet his burden of proof even if he had found the accident to be compensable.     Click here to view Order

JCC Walker (Pensacola) – Awarded compensability, indemnity, and medical benefits. The employer failed to appear and litigate the claim. An order was entered striking the employer’s defenses. The claimant fell from scaffolding while working as a painter. The employer knew about the accident and agreed to provide benefits. The employer never paid any medical bills or provided any light duty work for the claimant. The JCC determined that the claimant sustained a compensable injury and awarded medical care and indemnity benefits to be paid by the employer.       Click here to view Order

JCC Sculco (Orlando) – Denied all benefits based upon misrepresentation. The claimant had prior authorized shoulder and cervical surgeries after his 2015 accident and worked for the employer until 10/18.  Thereafter he filed a PFB for PTD.  He testified in deposition and at trial that he applied for all of the positions on his “job search form”. The E/C presented deposition testimony of multiple employers who contradicted the claimant’s testimony regarding employers applications.  They further presented testimony of a vocational rehab counselor (Anthony Imperiale) that out of 16 employers he sent to the claimant, only one indicated the claimant applied for work.  The JCC also found it notable that the claimant testified he deleted ALL confirming emails from any prospective employer. He found the claimant knew the importance of the job search information in relation to PTD benefits, and even if the confirming emails were deleted, he could not explain why he simply could not access the online accounts of Indeed.com, Ziprecruiter, etc., and simply reproduce such evidence.        Click here to view Order

Permanent Total Disability

JCC Almeyda (Miami) – Denied PTD benefits. The claimant sustained a hernia injury and was placed at MMI with permanent work restrictions of no lifting greater than 20 pounds. He presented himself as “functionally illiterate” with a 10th grade education and little to no “supervisory” or “white collar” job skills. He testified that he was incapable of using a computer to perform his job duties and search for jobs without assistance. The E/C presented testimony from an employer rep who stated that the claimant presented himself at time of hire as capable of the job duties he was hired for. The E/C also presented testimony from a coworker who testified that the claimant was capable of doing all computer work without assistance. The JCC found that the claimant lacked credibility, which, combined with his ability to perform more than sedentary work, led the JCC to deny benefits. In addition, the JCC commented that the vocational experts were less persuasive because the conclusions were hypothetically based on jobs and job titles found in a book rather than actual knowledge.      Click here to view Order

Indemnity Benefits

JCC Pitts (Orlando) – Determined AWW, denied indemnity. The JCC determined that the AWW was to be calculated using 13 calendar weeks, not including the week of the accident. The JCC denied indemnity benefits by stating that the claimant’s wage loss was related to COVID 19 rather than the accident. The claimant continued working full time for the employer after the accident until he was furloughed due to COVID-19. Per Dr. Broom, the claimant’s only work restriction was to “use common sense,” which the JCC determined would not prevent the claimant from doing his pre-injury job.     Click here to view Order

JCC Ring (Ft. Lauderdale) – Awarded TPD and medical care. The claimant alleged injuries to both knees in a slip and fall/slip and twist type accident at work. The E/C initially authorized medical treatment, but then denied the claim arguing that the claimant’s accident was caused by an idiopathic/pre-existing condition. The claimant had a significant history of multiple prior injuries and a surgery to the right knee. He wore a brace on the right knee while working for the employer but reported no other issues with his knee in the 3 years working for the employer prior to the accident. The E/C’s  IME (Dr. Meli)  opined the claimant’s pre-existing condition/prior injuries caused the right knee to give out and cause the accident injuring the left knee. Dr. Meli admitted that there was no prior record of the claimant’s knee buckling or giving way. The claimant’s IME (Dr. Rafael Fernandez) opined to the contrary. The JCC found Dr. Fernandez’s opinions more reliable than Dr. Meli’s opinions because they were “more logical, scientifically based and consistent with the objective medical evidence.” The JCC also found that the E/C failed to meet its burden of proof with regard to the idiopathic cause defense. However, the JCC only awarded compensability for the left knee because the claimant testified that his right knee pain had resolved and Dr. Fernandez opined that the right knee did not require any treatment as a result of the accident. Although the claimant’s description of the accident to the authorized MD Now providers were a bit inconsistent, the JCC found this to be insignificant and awarded payment of the MD Now medical bills. The JCC also awarded payment of the emergency room bill from the date of accident. The JCC awarded TPD from the date of accident and continuing because the claimant was placed on light duty work restrictions by MD Now that could not be accommodated by the employer. When he returned to work for the employer, he could not complete his shift due to knee pain. He was subsequently terminated for no call/no show. He has not since obtained employment due to his restrictions.    Click here to view Order

JCC Almeyda (Miami) - Denied TTD/TPD; awarded physiatrist and reimbursement to claimant for medical expenses. In this “hotly contested” case, the JCC was asked to reconcile multiple claims for treatment in Puerto Rico, although the claimant now lives back in Miami.  Ultimately, the JCC found that authorized Puerto Rican PCP Dr. Hurtado was never deauthorized and his opinions were admissible because in order to deauthorize there ‘must be a showing of good cause and an order’. Cal Kovens v. Lott, 473 so2d 249 (Fla. 1st DCA 1992). Further, The JCC found that Dr. Hurtado’s practice of billing the patient and not the carrier required the E/C to reimburse the Claimant for the total of $80.00. Moreover, the JCC stated that Dr. Hurtado recommended a physiatrist and claimant’s circumstances had changed since moving to Miami from Puerto Rico, therefore the JCC ordered the E/C to authorize a physiatrist in Miami.  The JCC denied other multiple claims for medical care based upon a failure of proof.  The JCC denied a week of indemnity, finding that although the claimant had restrictions, his brief testimony did not provide a basis under Toscano to show why those restrictions resulted in wage loss, as there was no real evidence as to modified duty.        Click here to view Order

Medical

JCC Forte (Ft. Lauderdale) – Denied non-professional home attendant care. The claimant sustained a large lower extremity laceration after falling down a flight of stairs. She received 27 stitches, but she still developed cellulitis. As a result, she underwent surgery and a VAC device was implanted in the wound. A home health care nurse was recommended and provided by the E/C for VAC dressing changes. However, Dr. Fletcher never recommended attendant care for activities of daily living. The claimant alleged that her husband helped her get out of bed, dress, bathe, prepare her meals, take her to the bathroom, massage her leg, take her to doctor’s appointments, and other ADL’s. Although the E/C does not have to receive a prescription for attendant care to be on notice of the issue, the JCC distinguished the case from Windham Builders v. Overloop, stating that the claimant failed to advise the adjuster, the doctor, and the nurse case manager that her husband was assisting her with ADL’s. The JCC also found that Dr. Fletcher admitted during his deposition that the claimant required some attendant care, but the attendant care could not be prescribed retroactively.    Click here to view Order

JCC Walker (Pensacola) – Awarded carpal tunnel and trigger release surgery. The claimant sustained a left wrist and left shoulder injury in 2014. The E/C authorized treatment with Dr. Lurate for the left wrist. After a one-time change request, the E/C authorized Dr. Watt, who opined that the claimant required a left carpal tunnel release and trigger release. Before the surgery was performed, the claimant reported a new date of accident in 2019 alleging repetitive trauma to the left wrist. The parties agreed that a new orthopedist, Dr. Coleman would be authorized to “evaluate and treat” for both dates of accident. Dr. Coleman confirmed Dr. Watt’s diagnoses, but he opined that the MCC of the need for the surgery was not related to the accident. When the E/C raised an MCC defense, the claimant alleged that the E/C could not deny the surgery as the prior agreement indicated that the E/C authorized Dr. Coleman to evaluate and treat. The JCC rejected this argument, but ultimately awarded the surgery by accepting Dr. Watt’s opinion over Dr. Coleman’s opinion regarding MCC. The JCC found that Dr. Watt treated the claimant for three years while Dr. Coleman evaluated the claimant on one occasion and that Dr. Watt’s opinions were logical and reasonable.     Click here to view Order

JCC Jacobs (Miami) – Awarded medical treatment. The Employer (no carrier/TPA listed) failed to appear for the hearing. The claimant testified that he sustained a compensable injury in 2018. He stated that his medical bills had been paid by the E/C until the claimant requested authorization of Dr. Lazzarin. The Employer failed to respond to the claimant’s request for medical treatment, so the JCC awarded authorization.     Click here to view Order

JCC Medina-Shore (Miami) – Denied follow-up medical care and benefits. Prior to the hearing, the claimant filed a Motion in Limine to exclude the testimony of Dr. Stuart Brooks arguing that he was not an authorized treating provider, IME, or EMA. The JCC found that Dr. Brooks was authorized to evaluate the claimant per a referral from the authorized PCP. The claimant alleged difficulty breathing, dull chest pain, and blurred vision following exposure to ash, soot, dirt muck, and organic material while operating an excavator with “busted out” windows and no air conditioning. The E/C authorized medical care with a PCP, who referred the claimant to a pulmonologist, ophthalmologist, and neuro-ophthalmologist. The E/C authorized evaluations with the specialists, who all opined that the claimant’s conditions were not related to the accident. The E/C raised a misrepresentation defense because the claimant lied to the authorized physicians about his prior eye problems, and the JCC found the claimant gave an inconsistent history.    Click here to view Order

JCC Humphries (Jacksonville) - Awarded Pain Management Physician.  The EMA, Dr. Davis, opined that claimant should be referred to Pain Management for back pain, but denied that Pain Management is causally linked to the workplace injury. However, the Claimant successfully argued that there was no conflict between Dr. Lonstein and Dr. Zak as to causation. The JCC found the E/C did not raise causation as a defense of the claim to reserve the issue for the hearing.  He rejected the E/C’s argument that their statement “all medically necessary, causally related treatment provided” in the Pre-Trial raised this as an issue. Additionally, the defense in requesting the EMA did so only as to the question of medical necessity.  Therefore, the JCC found that Dr. Davis’ opinion as to causation was not presumptively correct and awarded pain management.          Click here to view Order

JCC Arthur (Lakeland) - Denied ongoing treatment for right knee.  Dr. Winters initially treated the claimant in 1998 and stated that claimant tore her lateral meniscus and damaged pre-existing degeneration, not related to the workplace accident. That opinion was known at that time. After a surgery in 1999, the claimant did not return until 2015, at which time Dr. Winters injected her knee but opined the MCC of any need for treatment was the 16 year progression of degenerative arthritis.   The E/C’s IME, Dr. Rosen, agreed with Dr. Winters’ opinion that the claimant’s need for treatment is due to degenerative knee condition that has worsened over 22 years since the injury. The JCC ultimately rejected the claimant’s IME, Dr. Fiore, because Dr. Fiore’s medical opinion was inconsistent with all other medical experts. Further, the JCC found that Dr. Fiore changed his opinion when he believed that the MRI did not occur until after the surgery at issue. The JCC rejected the claimant’s 120 day waiver argument, finding F.S. 440.20(4) applies only to initial provision of benefits, and cases finding otherwise deal with conditions arising after initial provision. Here, the degeneration was known at the time of initial treatment. Alternatively, the JCC found the 16 year progression of the degenerative condition provided a “break in the chain” from the original compensable meniscal injury.       Click here to view Order

JCC Medina-Shore (Miami) - Awarded exercise bike. Claimant was injured in a car accident while working as a salesperson. Claimant came under the care of Dr. Eskenazi, who recommended a Recumbent Bike to improve claimant’s spinal cord issues. The E/C offered no conflicting medical opinion.  The JCC authorized the bike because the bike was not a luxury item and was medically necessary as a device to assist with claimant’s causally related significant gait, spasticity and deconditioning issues.         Click here to view Order

JCC Jacobs (Miami) - Denied requested attendant care.  The claimant has been a paraplegic since a 1987 gunshot wound. She receives PTD and 24 hour skilled nursing services, which include some cooking and cleaning. Claimant sought authorization for home health aide as prescribed by Dr. Dalal, to provide attendant care 7 days a week. The JCC found that “claimant has the burden of proving the quantity, quality, and duration of attendant services claimed. See Orange County Sheriffs Dept. v. Perez, 541 So. 2d 652, 654 (Fla.1st DCA 1989). The JCC opined that Claimant did not meet the medically necessary burden because Dr. Dalal’s testimony was conclusory and conflicting as to activities in daily living and meal prep. Further, he found certain claimed attendant care activities were not compensable.    Click here to view Order

JCC Arthur (Lakeland)- Awarded evaluation with gastroenterologist, updated MRI, and follow up evaluation with a neurosurgeon at Shands. For this 1985 DOA, the E/C authorized Dr. Fox, a neurosurgeon at Shands for the  lumbar spine,  who recommended an updated MRI, and that the claimant be evaluated by a gastroenterologist,  The E/C argued that Shands’ Patient-Specific Agreement acted to de-authorize Dr. Fox as of 6/13/19.  The E/C denied a follow up visit to Dr. Fox as well as the MRI and eval.  However,  the JCC found that the E/C provided no substantive evidence to de-authorize Dr. Fox, nor does the controlling statute  permit de-authorization based upon an expired treatment agreement. Therefore, the JCC determined that Dr. Fox’s opinion that an MRI is required within 6 months of a follow up visit was admissible and uncontroverted.  The JCC rejected the E/C ‘s argument that a prior Order denied a gastroenterological evaluation, as the facts had changed.           Click here to view Order

Attorney Fees

JCC Jacobs (Miami) - Awarded Claimant’s attorney fees in the amount of $3,975. Claimant filed an initial PFB on 12/6/19, and an amended  PFB on January 6,2020 seeking a follow up appointment with Premise and authorization and treatment on left shoulder. The E/C failed to notify Claimant that Dr. Azar was authorized until February 17th, 2020.  The Claimant’s counsel asserted that she exerted 45 hours over the case for seven months, and the attorney fee should be in the range of $300.00 to $400.00 per hour. The E/C maintained that similar legal services should be in the range of $200 to $225.00 an hour. The JCC found 19.1 hours were reasonable, at $225.00/hr and $150/hr (associate) time. The JCC denied $1560.00 in costs, which were all incurred after the benefit was provided.       Click here to view Order

Motion Hearings

JCC Medina-Shore (Miami) – Granted Motion to Enforce Settlement. The claimant agreed to settle her claim during a telephonic mediation. Following the Mediation, her attorney withdrew from the claim. The claimant argued that the settlement contained too many contingencies and that she did not understand the language in the settlement documents regarding child support (which was $0) and E/C paid attorney fees (which were not addressed). The claimant was not satisfied with her attorney’s help with the settlement language. The JCC found that the settlement documents mirrored the settlement agreement and the documents did not contain excessive contingencies.      Click here to view Order

JCC Ring (Ft. Lauderdale) – Enforced Settlement.  The claimant argued that he did not give his attorney authority to settle. The claimant is fluent in Creole, and his attorney is also fluent in English and Creole. The JCC determined that the chances of miscommunication were essentially eliminated.      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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