Print Page   |   Contact Us   |   Your Cart   |   Sign In   |   Register
Case Law Updates
Share |

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

  
Winter Park
1560 Orange Avenue, Suite 500
Winter Park, FL 32789
TEL: (407) 571-7400
FAX: (407) 571-7401
www.hrmcw.com

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 Pitts (Orlando) (Rex Hurley)  - Denied claim based on SOL. Claimant was injured in 2005.  The claimant purportedly settled her case in 2016, but the settlement was not finalized, and ulitimately the JCC dismissed the 2016 PFB. The claimant filed a PFB seeking authorization for medical care. However, the JCC found the claimant was on notice of the SOL, and no exceptions existed to toll the statute.   Click here to view Order

JCC Hedler (West Palm Beach) (Derrick Cox) – Denied PTD and TTD, awarded PCP, TPD.    The claimant initially injured his wrist.  He then alleged he injured his back during therapy for his wrist. The E/C argued the back claim was only pled as a request for a PCP for the back, and not for compensability, and that there had been no referral for the same from an authorized doctor. The JCC rejected that argument. The JCC found the claimant was not at MMI, and thus PTD was premature. There was no evidence the claimant was TTD either. However, the JCC found that as the claimant sustained an injury to his back, and was not at MMI, TPD would be due for a period of time. He rejected the E/C’s argument that the MCC of the claimant’s wage loss was due primarily to him driving his son to medical appointments.    Click here to view Order


JCC Merit Orders

Indemnity Benefits

JCC Humphries (Jacksonville) – Denied E/C’s misrepresentation defense, awarded TPD benefits. The claimant sustained an initial knee injury in May of 2017. While en route to therapy for her May injury, the claimant alleged a re-injury of the same knee. The E/C asserted misrepresentation based upon a doctor’s note indicating the knee hit the car door, and a hospital note indicating her knee hit the dashboard. The E/C did not depose either provider as to how the information was received and documented in the notes. The JCC expressed multiple suspicions as to the accuracy and reliability of this information, and did not feel the claimant would seek to misrepresent a second injury to the same knee for which the E/C was already required to provide treatment. The JCC found the claimant entitled to a portion of TPD, but denied another portion, the result of a credibility determination between the employer and claimant over the reasons she was not at work.   Click here to view Order

JCC Spangler (Tampa) – Awarded TPD. The claimant injured his right ankle in March 2016 and was initially placed at MMI in August 2016. However, the IME and EMA each disagreed with that MMI date. The JCC found the MMI date to be in April 2018 according to the EMA. Therefore, the claimant was awarded TPD from August 2016 through April 2018.   Click here to view Order

Medical Benefits

JCC Beck (Sarasota) – Denied claimant’s request for a neurosurgical evaluation. The claimant initially injured her ankle, and later reported radicular symptoms. The authorized doctor requested a neurosurgical evaluation, but the carrier obtained an IME instead. The E/C also provided lumbar injections and a lumbar MRI. The claimant subsequently had ankle surgery, and was involved in an MVA with low back injuries. The JCC rejected the claimant’s estoppel argument that the E/C waived the right to contest the neurosurgical evaluation by providing lumbar injections. The JCC found these were in the form of rule/rule out, diagnostic medical care, and that the referral for the neurosurgeon initially was to see if the ankle surgery was warranted. As the ankle surgery occurred prior to hearing, the JCC found the neurosurgical evaluation no longer medically necessary or reasonable.   Click here to view Order

Attorney Fees

JCC Newman (Tallahassee) – Awarded entitlement to and amount of attorney fees and costs in a 30 page (!) Order following a multi-day hearing to former and current counsel for the claimant.  Claimant’s prior counsel sought 82.8 hours at $200-$300 per hour for securing medical benefits at a prior merit hearing. The E/C asserted only 42.5 hours were reasonably related to the benefit secured, alleging much of the time was devoted to issues upon which the claimant did not prevail. The JCC reviewed fee Orders in the district, and found that the fees averaged $200-$300 per hour, with Board Certified attorneys receiving $300 and highly experienced attorneys $250.  The JCC found 76 hours were reasonably related to the benefit secured at $250 per hour, and awarded $19,000 in fees and $2,870.84 in taxable costs. Claimant’s current counsel sought fees related to obtaining a pain management physician. The JCC excluded time spent in pursuing the amount of the fee, awarding only 6.6 hours at $250 per hour. The JCC denied fees for seeking to prove the amount of costs after entitlement had been established, as well as fees related to a Motion for Sanctions.   Click here to view Order

JCC Sojourner (Orlando) – Denied entitlement to attorney fees. In a spider bite case, the claimant attorney argued that the carrier checking “no” to box seven on the PTS as to whether the E/C accepted compensability resulted in a total denial of the claim. The Prior JCC had allowed an amendment to the Pre-Trial, and the First DCA denied the claimant’s Petition for Writ of Certiorari.  The current  JCC reviewed the prior JCC’ Order, as well as the rest of the pleadings, payout and other evidence, and found that the carrier initially accepted compensability, and then properly denied the MCC of the claimant’s subsequent alleged fatigue, malaise and muscle aches.   Click here to view Order

JCC Lewis (Ft. Lauderdale) – Denied entitlement to attorney fees and costs. The claimant filed a PFB on 3/8/17 requesting a medical appointment. However, the PFB was not received by the employer until 4/28/17, from their defense counsel. An appointment was then set on 5/1/17.  The claimant did serve an initial PFB on the employer, but not the 3/8/17 PFB. The 3/8/17 PFB was served on the E/C’s counsel and AmTrust. However, AmTrust ceased servicing the employer’s claims as of 7/1/17. The employer here is self-insured, and per F.S. s. 440.02(4) is ‘the carrier”, but the claimant did not serve them either by certified mail or electronic service, as is required by statute and rule. The JCC rejected the claimant’s argument that notice to an attorney constitutes notice to a party, as the cases cited by the claimant concerned notices of hearings or proceedings, and the plain language of F.S. s. 440.192(1) controls. The JCC also rejected the claimant’s waiver and estoppel arguments, which were based on subsequent documents from defense counsel listing AmTrust as the TPA.  Click here to view Order

Motion Hearings

JCC Pitts (Orlando) – Granted E/C’s Motion to Enforce Settlement Agreement. The JCC found the parties entered into a binding settlement agreement at mediation, that there were no defenses or reasons why the claimant should be allowed to back out of the settlement and the JCC ordered the claimant to execute the settlement documents, including a release/agreement not to seek rehire.    Click here to view Order

JCC Jacobs (Miami) – Granted E/C’s Motion to Enforce Settlement Agreement. The claimant alleged that following an agreement at the state mediation to settle, he was told he had 10 days in which he could void the settlement. The clear terms of the Mediation agreement indicated settlement was binding as of the date of the mediation, and included all material terms.   Click here to view Order

JCC Jacobs (Miami) - Denied E/C’s Motion for Post Hearing Deposition and Motion for EMA. The JCC found the E/C did not timely seek to depose their IME, nor offer any reason why the failure to do so was out of their control.  Absent the E/C IME deposition, the JCC determined that the alleged conflict between the E/C’s IME and a second doctor did not exist, as the second doctor had not provided testimony as to MCC in his depo.   Click here to view Order

JCC Rosen (St. Petersburg) – Granted the E/C’s motion to dismiss 2013 PFB for lack of prosecution. The claimant dismissed the 2013 PFB but reserved as to fees and costs. The JCC found that, despite the claimant attorney’s “creative” arguments, no record activity existed within the last year, and no good cause was shown to avoid dismissal.   Click here to view Order

JCC Clark (Ft. Myers) – Granted E/C’s Motion to Enforce Settlement Agreement. The claimant had “buyer’s remorse” after signing the mediation agreement because he was no longer sure the net recovery would be sufficient. However, the JCC found that the claimant voluntarily signed the agreement at mediation, and the agreement stated that the settlement was binding.  Click here to view Order

JCC Clark (Ft. Myers) – Denied Motion for Advance. While the claimant submitted an adequate financial affidavit, he failed to offer any medical evidence to support his motion. The JCC stated that a claimant must show some nexus between his eligibility for an advance and his alleged industrial accident. Without evidence of any injuries resulting in physical restrictions, a claimant cannot show that the current state of unemployment is related to his alleged industrial accident.   Click here to view Order

JCC Dietz (Sebastian) – Denied Motion for Summary Final Order. The claimant filed a Motion for Summary Final Order, but filed a Notice of Resolution of Pending Claims and Issues prior to the hearing. Therefore, the motion was denied as moot.   Click here to view Order

JCC Newman (Tallahassee) – Granted Motion for Advance. The claimant stopped receiving indemnity benefits in August 2018. He testified that he fell behind on household and child support obligations as a result. The JCC found that the claimant was “proper” as he remains out of work and has experienced substantial loss of earning capacity. The only evidence offered by the claimant was a child support arrearage sheet and testimony from the claimant.   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.

 

Treasure Coast North Florida
Miami-Dade
Broward 
 Southwest Florida   Atlanta
772-489-2400  850-222-1200
305-423-7182   954-580-1500   239-939-2002  404-459-2722

Click on the following links for printable versions of our weekly updates:

10-5-2018- Hurley Rogner case law update

10-19-2018- Hurley Rogner case law update