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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 Brian Ricotta.  

HRMCW Cases

JCC Havers -  (Miami)(Vanessa Irvin) – Denied all benefits pursuant to Claimant’s misrepresentation under 440.09(4) and 440.105(4). The claimant had authorized surgery to the right elbow and a surgical recommendation for a torn right rotator cuff. At deposition, the claimant testified he could not perform several activities with his right arm including, raising his arm above his head, laying on his right side, carrying grocery bags, etc. Following the deposition, the video surveillance showed the claimant using his right arm in a significant fashion while he washed his car, laid on his right side to wash the undercarriage of his car, squeezed a spray nozzle and a caulk tube, carried multiple bags of groceries, and raised both arms above his head. After reviewing the surveillance video, Dr. Herrera testified that the claimant was using his right shoulder/arm without limitation, which was contrary to the complaints the claimant made during his office visits. At final hearing, the claimant testified that he lied about his restrictions and activities when he was originally deposed. After reviewing the deposition and live testimony of the claimant, the JCC found he lacked credibility and made misleading statements with the intent to secure workers’ compensation benefits.    Click here to view Order

JCC Sojourner (Orlando)(Scott Miller) - Denied all benefits pursuant to Claimant’s Misrepresentation under 440.09(4) and 440.105. The Employer/Carrier initially accepted neck, low back, and right shoulder injuries. After authorized treatment including a right shoulder surgery, the E/C discovered that the claimant suffered a right shoulder injury approximately 6 months prior to the industrial accident. The claimant failed to disclose that history at deposition or to his authorized treating physicians. The JCC found that the claimant intentionally misrepresented his medical history regarding the right shoulder and did so in order to obtain workers compensation benefits. Click here to view Order

 

DCA Cases

Marine Max, Inc./Seabright Insurance v. Blair, ___ So.3d___ (Fla 1st DCA 3/7/19)

Duty to provide medical treatment with authorized provider seeking pre-pay in excess of fee schedule

The E/C authorized Dr. Yunis to treat the claimant from 2010-2014.  Some of his bills were paid allegedly at fee schedule, some allegedly over fee schedule. The doctor left his practice in 2015 and started a new practice. In 2017, the claimant filed a PFB for further treatment with Yunis.  The successor TPA and adjuster agreed to authorize him, but when contacted, the doctor announced he would only accept pre-payments in excess of the fee schedule. The adjuster rejected that proposal, and authorized an alternate provider, whom the claimant refused to see.  At hearing the claimant argued he had an established doctor/patient relationship and the E/C’s “deauthorization” of  Yunis for his payment demands was improper under the statute.  The E/C argued that payments in excess of the fee schedule are only permissible under F.S.s.440.13(13)(b) where the carrier and doctor agree, and that their only option was to authorize an alternate provider.  The JCC ruled that the E/C improperly deauthorized Yunis and the E/C could still pay and then dispute his charges. She ordered authorization and payment.  The DCA held the JCC has no authority to order payment, as such reimbursement disputes are solely under the jurisdiction of DFS, and that she erred in stating a pre-payment would later be subject to dispute and possible reimbursement. They concluded however, that she was correct to order the E/C to authorize Yunis. This, despite acknowledging the E/C’s argument that it is illogical to order authorization for a doctor who won’t accept the fee schedule. The DCA acknowledged this point, and said that authorization only allows the doctor to demand compensation if he chooses to treat the claimant.  They acknowledged the dissent’s list of cases discussing patient/doctor relationship, but found they did not create a rule that carriers must pre-pay above fee schedule. A rule stating such must come from the legislature.

The lengthy dissent cited additional evidence, suggested estoppel applied (it was not pled/argued), suggested the carrier had a duty to negotiate with the doctor, and ultimately questioned what the practical result of the opinion might be.   Click here to view Opinion

 

JCC Merit Orders

Compensability

JCC Young (Tampa) – Denied all benefits pursuant to Claimant’s misrepresentation under 440.09(4) and 440.105(4). The 52 year old claimant had been epileptic since infancy, and developed chronic migraines as a teenager.  On the date of accident, the claimant suffered an epileptic seizure, causing her to faint, hit her head, and to begin to allegedly suffer from more frequent and severe migraine headaches. Pre-accident the claimant treated with Dr. Dominick for memory issues, anxiety, and chronic headaches ranging from 7 to 9 on the pain scale. Post accident, the claimant continued treating with Dr. Dominick and continued to complain of migraines at the same pain level. In Dr. Scharfman’s pre-EMA medical questionnaire, the claimant failed to list her extensive history of migraines and failed to mention that history during the 2-hour EMA evaluation. In light of the claimant’s failure to disclose her extensive history of migraines, coupled with her inconsistent testimony at final hearing, the JCC found the claimant knowingly and intentionally made incomplete and misleading statements regarding her past medical history to advance her claim for workers’ compensation benefits.   Click here to view Order

JCC Owens (Port St. Lucie) - Denied all benefits pursuant to Claimant’s Misrepresentation under 440.09(4) and 440.105(4). The E/C initially accepted a right wrist injury as compensable. However, it was discovered that the claimant misrepresented her employment history to her subsequent employer, omitted specific medical history to her authorized treating physician, Dr. Trocchia, falsified her application for unemployment compensation, which included fabricated job search information, and in deposition denied receipt of unemployment compensation at the same time she received wages from her subsequent employer. The JCC found that the claimant, over the course of her claim, made false statements to her subsequent employer, the Department of Economic Opportunity, the Employer/Carrier, and to the JCC himself. Additionally, her statements made during final hearing were made intentionally with the intent to secure workers’ compensation benefits.   Click here to view Order

Permanent Total Disability

JCC Stanton (Gainesville) – Denied PTD benefits, supplemental benefits, and PICA for two dates of accident.   The claimant injured his left knee in 1990, and his right knee in 1995, but continued to work for the employer until 2009, when he entered an early retirement program. The claimant’s significant medical treatment came after retirement. On September 30, 2013 the claimant was placed at MMI, with a 0% permanent impairment rating, and no restrictions for the right knee. On June 25, 2015 he underwent a total left knee replacement. On June 8, 2016, he was placed at MMI with permanent restrictions of no lifting over 20 pounds for the left knee. Dr. Cannon performed a left knee revision surgery in 2017 and subsequently placed the claimant at MMI on November 21, 2017 with permanent work restrictions of no kneeling, squatting, or crawling. Both parties obtained an IME to evaluate the left knee, each of whom assigned permanent restrictions similar to Dr. Cannon’s. The JCC found that Dr. Cannon was best suited to define restrictions as he performed the revision surgery. After evaluating both knees/dates of accident separately, the JCC found that the claimant had not suffered a catastrophic injury and was not PTD. He then addressed claimant’s argument that both dates of accident/injuries should be combined to determine PTD. However, because the claimant’s right knee injury did not result in any permanent impairment or work restrictions, there was nothing to combine with the left knee injury to show the claimant was PTD.       Click here to view Order

Indemnity Benefits

JCC Massey (Tampa) – Denied adjustment of AWW, TPD benefits, and E/C’s misrepresentation and apportionment defenses. The E/C initially accepted compensability of the claimant’s accident and authorized medical treatment with orthopedist Dr. Patel. Dr. Patel recommended injections and placed the claimant on light duty. The employer made a light duty job offer that accommodated the claimant’s restrictions but the claimant never completed the necessary documents to begin the employment. Shortly thereafter, Dr. Patel discovered in past medical records that the claimant had a history of low back pain prior to the date of accident and had settled a prior workers’ compensation claim that involved lumbar complaints approximately 1 month prior to the industrial accident. The claimant was placed at MMI and the E/C raised misrepresentation and apportionment defenses. The JCC found that the claimant had refused suitable light duty employment and therefore voluntarily limited his income. However, he did not believe that the claimant ever intentionally or knowingly made false or misleading statements for the purpose of securing workers’ compensation benefits.   Click here to view Order

JCC Ring (Ft. Lauderdale) – Granted 6 separate periods of TPD, 1 period of TTD, and PICA. The parties stipulated that the claimant was involved in two compensable dates of accident. After the first date of accident, doctors assigned  the claimant sedentary restrictions. The claimant returned to work light duty but according to the payout, he was not earning 80% of his AWW. Following the second date of accident, the claimant was again placed on light duty, which could not be accommodated by the employer. Therefore, the claimant found alternative employment and testified that he was earning $500.00 less per week. After reviewing the payroll records, the JCC found that the claimant met his burden to prove that he was earning less than 80% of his AWW and awarded indemnity benefits.    Click here to view Order

Medical

JCC Walker (Panama City) – Awarded pain management. The E/C authorized orthopedist  Dr. Michael Rohan Jr. After three visits, the claimant stopped treatment with Dr. Rohan and began treatment with his family physician. The E/C then authorized Dr. James Talkington, a one-time change in orthopedist. The claimant was originally referred to pain management per his family physician, a referral Dr. Talkington agreed with during his deposition. The parties each obtained an IME, Dr. Kirk Mauro for the claimant and Dr. Jeff Buchalter for the E/C. Dr. Mauro recommended a pain management specialist and Dr. Buchalter did not believe the claimant needed to be seen by any pain management physician but did opine that muscle relaxers, anti-inflammatory medication, and a TENS unit would be reasonable. Based on the opinions of each IME, the JCC found it reasonable and medically necessary for the claimant to receive a pain management evaluation.   Click here to view Order

Attorney Fees

JCC Dietz (Sebastian/Melbourne) – Awarded an additional $29,250.00 above the statutory guideline attorney’s fee. The parties settled for $300,000.00 with a Miles fee agreement of 20%, or $60,000.00. There was not sufficient evidence to support a finding that the Miles fee was reasonable. Therefore, the JCC entered an order awarding a guideline fee, escrowing the difference between the Miles fee and the guideline fee, and releasing the remaining settlement proceeds to the claimant. At an evidentiary hearing regarding the reasonableness of the Miles fee, the JCC found that claimant’s attorney provided sufficient evidence in support of the Miles fee agreement and entered an order to have the escrowed funds paid to claimant’s attorney.   Click here to view Order

JCC Holley (Jacksonville) – Awarded Claimant’s Former Counsel Entitlement to Attorney’s Fees. The claimant suffered a compensable accident and was represented by former counsel from November 1, 2012 until December 10, 2013. Through the former attorney’s efforts, the claimant obtained several benefits including treatment of the right knee, right hip, and right hand. Shortly thereafter, the claimant terminated the relationship with the former attorney and had a second date of accident. The claim was eventually settled for $160,000.00, inclusive of both dates of accident. ($40,000.00 allocated to the first date and $120,000.00 allocated towards the second). Former counsel never filed a Verified Response, thus accepting entitlement to a quantum meruit fee. The JCC clarified that the former attorney’s fee was limited to the $40,000.00 that was allocated to the first date of accident and not on the $120,000.00 allocated towards the second, as the former attorney never filed a lien, there was no showing that the apportioned settlement amounts were improper, and testimony by the adjuster and E/C proved the apportionment was appropriately allocated.    Click here to view Order

JCC Owens (Port St. Lucie) – Denied requested attorney’s fee above already approved and disbursed statutory fee. The claimant suffered compensable injuries to the left leg and left knee when he was struck by a rolling truck and pinned against a fence. The claimant entered into a retainer agreement with his attorney, which stated “I am knowingly waiving the fee requirement under this statute…, and I will pay a flat 25% on all benefits secured.” The agreement also provided that the hourly rate would be $300.00 per hour and was subject to judicial review. Roughly 6 months after the date of accident, the parties agreed to a lump sum settlement of $138,150.000. The agreement indicated that the claimant would pay his attorney a fee of $34,537.50, which was 25% of the settlement amount. Claimant’s attorney then filed a Motion for Approval of Attorney’s Fees under section 440.20(11)(c), (d), and (e). The motion noted that the statutory fee would have been $14,565.00 and sought approval of the $34,537.50 Miles fee. The JCC questioned the reasonableness of the Miles fee, disbursed the statutory fee amount, escrowed the difference between the statutory fee and the Miles fee, and released the remaining settlement funds to the claimant. After reviewing the Lee Engineering Factors, the JCC found that the Miles fee was not reasonable and ordered that the remaining funds be released to the claimant.    Click here to view Order

Motion Hearings

JCC Massey (Tampa) – Granted E/C’s Motion for Summary Final Order. The parties stipulated that the claimant reached overall MMI with a 5% impairment rating, at which time the E/C paid impairment benefits. More than 2 years later, the claimant filed a PFB claiming impairment benefits based on a 10% impairment rating. The JCC found the prior stipulation controlled and res judicata barred the claim.   Click here to view Order

JCC Beck (Sarasota) – Granted Carrier’s Motion for Summary Final Order. The claimant filed a PFB against Employer, Moona Transport, Inc. and Carrier, Vanliner Insurance. The adjuster filed a response to that petition denying all claims on the basis that no policy of insurance covered the claimant. Subsequently, the carrier filed a Motion for Summary Final Order alleging they did not provide coverage to the claimant in an individual capacity and that the coverage of Moona Transport had been cancelled nearly 7 years prior to the date of accident. The claimant’s counsel candidly admitted that he had no information to suggest that the carrier’s allegation of no coverage was incorrect.   Click here to view Order

JCC Owens (Port St. Lucie) – Granted Claimant’s Motion to Enforce Settlement. On September 25, 2018, the parties entered into a lump sum settlement agreement for $16,250.00. Subsequent to the agreement, the Carrier learned that the employer had cancelled its workers’ compensation policy. The Cancellation Request was dated September 2, 2018 and signed September 7, 2018. No evidence showed when the carrier received the cancellation request. It was also discovered that the Employer had secured a second workers’ compensation policy, which was effective during the same time period that encompassed the industrial accident. Therefore, the carrier refused to move forward with the settlement agreement and argued that the claim should be paid under the second workers’ compensation policy. Given the facts, the JCC found that the parties had entered into an enforceable settlement agreement and the Carrier’s only remedy was to seek reimbursement from the other carrier pursuant to section 440.42(3).   Click here to view Order

JCC Ring (Ft. Lauderdale) – Granted E/C’s Motion to Enforce Settlement Agreement. The parties entered into a lump sum settlement agreement, an order closing the file was entered, and the claimant executed a general release. The claimant then filed a Motion for Approval of Attorney’s Fees, which was denied. More than a month following that denial and three months after the initial settlement agreement, the E/C filed a Motion to Enforce Settlement. The claimant testified that he was confused about the language regarding the general release and thought it meant he had 21 days to change his mind regarding the entire settlement. The JCC found the claimant’s testimony unpersuasive as he was represented by counsel for the entire duration of the settlement process, and found that the E/C had met its burden in proving there was an underlying meeting of the minds.  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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03-08-2019- Hurley Rogner Case Law Update