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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 January 13, 2020, the case authors are Lindsey Pulliam and W. Rogers Turner, Jr.

 

DCA Cases

2k South Beach Hotel, LLC v. Mustelier, ____ So.3d ____ (Fla.1st DCA 1/15/2020)

Hearing Procedure/Medical Benefits

The DCA issued a PCA without opinion on 10/15/2019, affirming the JCC’s award of certain benefits. The E/C filed a Motion for Rehearing and requested a written opinion. The DCA withdrew the PCA, and issued this written opinion.

The parties were to try issues of authorization of home health, compression socks, water therapy and a psychiatrist. Three weeks prior to hearing, the parties deposed a doctor who testified claimant ambulated with a cane. As this was new information, the E/C obtained surveillance the week prior to hearing, showing no cane use, but free use of her hand and arm (she had a diagnosis of CRPS). The claimant testified the day prior to hearing that she never used a cane. In the wee hours on the morning of the hearing, the E/C moved to admit the video into evidence and to amend their defenses to include misrepresentation. They provided the surveillance that morning. The JCC denied the E/C motions, finding granting them would violate due process. The DCA rejected all five of the E/C points on appeal, including (1) that the JCC erred in not admitting the surveillance (the claimant was prejudiced and there had already been a continuance; (2) that the JCC erred in denying amendment of the Pre-Trial (finding that obtaining late surveillance regarding the cane use was a change of litigation strategy, which was insufficient to allow amendment); (3) that the JCC erred in not allowing surveillance representatives to testify in rebuttal re. the claimant’s use of her hand ; (4) that the JCC erred in awarding six months of water therapy vs. six weeks because the Rx was not authenticated (the Rx was received into evidence as an attachment to the PFB without objection among other reasons; and (5) that the JCC erred in awarding psychiatric care because the referral was based  upon subjective complaints. The DCA stated that CSE supported that the referral was based upon the claimant’s feelings of despair, for which he diagnosed anxiety, nervousness and adjustment disorder, which satisfies the “objective relevant medical findings” requirement of F.S. s. 440.09(1).   Click here to view Opinion

Salus v Island Hospitality Florida Management, Inc., ___ So.3d ___ (Fla. 4th DCA 1/15/2020)

F.S.s. 440.205/Workers’ Compensation Retaliation/Fact Issues/Summary Judgment

The 3d DCA reversed and remanded the Circuit Court’s grant of Summary Judgment to the employer. The employee sustained a work place accident, received authorized care and discussed the injury and follow up treatment with his employer. After the accident, the employee allegedly threatened several co-workers with physical violence. The employer terminated the employee, noting it had nothing to do with his accident. The employee then filed a claim for retaliatory discharge and two weeks later, filed a PFB. The employer moved for Summary Judgment arguing the claimant could not establish a prima facie case for retaliation because his termination occurred before the PFB filing, and that they had a legitimate, nondiscriminatory reason for terminating the employee. The Circuit judge granted Summary Judgment, stating that the employee’s actions pre-PFB were insufficient to claim benefits, and thus there was no prima facie case of retaliation. The DCA reversed, analyzing the prima facie elements of retaliation: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action. They observed an employee’s failure to file a formal claim for WC benefits until after termination does not automatically preclude a claim for retaliation.  The employee’s act of obtaining treatment was sufficient. The DCA further noted that accepting the Employer’s argument would result in absurdity, as an employer could terminate a claimant post -accident, but pre-PFB, and this would never be considered retaliation. Click here to view Opinion

JCC Merit Orders

Compensability
JCC Ring (Ft. Lauderdale) – Denied E/C/SA #1’s claim for indemnification & subrogation against C/SA #2 for all benefits paid to Claimant. EC/SA/ #1 sought indemnification/subrogation against C/SA #2 for all benefits paid under Claimant’s 2014 date of accident, as well as attorney’s fees and costs. As grounds, E/C/SA #1 contended that the Owner Controlled Insurance Policy (OCIP) administrators, including C/SA #2, failed to comply with F.S. 440.42(3) and therefore waived all defenses to the OCIP coverage. The JCC found that Claimant’s accident/injury did not fall under the coverage of C/SA #2’s OCIP policy, and even if they did, they could not exceed 50% of such obligation pursuant to Florida law.   Click here to view Order

Indemnity
JCC Newman (Tampa) – Denied TPD, denied fees/costs based on misconduct. The Claimant suffered a compensable left knee injury and thereafter continued to work for the insured until he was terminated 8 months later “for cause” for violating company policy – namely, for allegedly offering $500 to have sex with two co-workers. The JCC accepted the testimony of the employer rep and co-workers to be credible, rejected Claimant’s testimony as not credible, and found misconduct, denying TPD.   Click here to view Order

Medical
JCC Young (Tampa) – Appointed EMA. After reviewing the medical records of Dr. Robert Kowalski, M.D. and Dr. David Schulak, M.D., the JCC found a conflict regarding MCC and appointed an EMA (EMA TBD).   Click here to view Order

JCC Rosen (St. Petersburg) – Appointed EMA. The E/C authorized Dr. Henkel and Dr. DiGeronimo, both neurologists, to treat the claimant’s compensable head injury. The claimant chose Dr. Libreros-Cupido, also a neuro, as his IME, and Dr. Libreros-Cupido diagnosed post-concussion headaches/post-traumatic headaches associated with mild traumatic brain injury. He recommended a PET scan/MRI of the brain and a neuropsychological eval/treatment, which E/C denied arguing Claimant was at MMI per Dr. Henkel. Finding conflict, the JCC appointed Dr. Anoop Reddy, M.D., neurologist and scheduled an appointment.   Click here to view Order

JCC Havers (Miami) – Appointed Dr. Rosabal as EMA. EC’s IME, orthopedist, Dr. Feanny, opined that Claimant’s need for treatment was due to his pre-existing lumbar condition (more than 50%). The Claimant’s IME, Dr. Jacobsen, testified he could not assign a precise percentage. Finding disagreement in medical opinions, the JCC appointed Dr. Orestes Rosabal EMA.   Click here to view Order

Attorney Fees
JCC Young (Tampa) – Denied attorney fees. The claimant filed a PFB for benefits that the E/C authorized or provided either prior to the filing of the PFB, or prior to 30 days. They agreed to costs, but the claimant attorney sought fees as to the specific costs. The JCC’s analysis focuses on whether costs for certified mailing are warranted where the claimant is represented. The JCC finds that the claimant’s costs were not necessary to the filing of the PFB, and denied fees on those costs.   Click here to view Order

JCC Almeyda (Miami) – Awarded fees, costs. The Claimant filed a Verified Petition seeking 17.2 hours at $300 per hour for benefits obtained. The E/C argued 9.5 hours at $200 was reasonable. Applying Lee Engineering factors, the JCC found 17 hours at $275 was reasonable, and awarded $4,675 plus costs of $3.00.   Click here to view Order

Motion Hearings

JCC Walker (Panama City Beach) – Granted E/C’s Motion to Enforce. The Claimant and his former counsel reached a settlement agreement (controverted basis) with E/C for $12,500 inclusive with a general release. Afterward, the Claimant decided he didn’t want to “sign off” on the documents because it might leave him open to lawsuit, and his counsel withdrew, filing a lien for fees and costs. Upon hearing, the JCC found that while the Claimant was genuine in his concerns over a lawsuit – such was not the test. The parties reached a binding settlement that should be enforced. The JCC ordered Claimant to execute and return the documents within 20 days.   Click here to view Order

JCC Holley (Jacksonville) – Granted E/C’s Motion to Enforce Settlement. The parties reached a settlement agreement, after which E/C followed up with Claimant’s counsel regarding return of the executed settlement documents. After failing to respond to his counsel’s attempts to reach him, Claimant failed to show up for the evidentiary hearing, and the JCC took testimony from Claimant’s counsel that Claimant was under the impression he was settling the claim for his right toe injuries and not for his right ankle. The JCC found Claimant’s attorney had clear and unequivocal authority to settle on his client’s behalf and enforced.   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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01-17-2020-Hurley Rogner Case Law Update