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Case Law UpdateJanuary 26, 2018WINTER PARK1560 ORANGE AVENUE, SUITE 500WINTER PARK, FL 32789TEL: (407) 571-7400FAX: (407) 571-7401www.hrmcw.comThis Update contains summaries of all relevant Appellate decisions usually for the preceding week, with commentson how a particular decision affects you. In addition, we review daily the Merit Orders posted on the DOAHwebsite. 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 listedcases.HRMCW CasesJCC Medina-Shore (Andy Borah) – Denied compensability. The claimant alleged a repetitive trauma injury tothe right wrist working as a housekeeper for about 2 months with Employer. The E/C denied all benefitsasserting MCC. The claimant argued the E/C was estopped from raising the defense as they failed to complywith the 120 day pay and investigate provision of 440.20(4). The E/C’s Response to the first PFB acceptedcompensability of the accident under the 120 rule and agreed to authorize Dr. Cummings for care. The claimantsaw Dr. Cummings first on 5/24/17 and the JCC asserted the 120 day clock started at that time. The doctor’snotes relate the claimant’s condition to the IA. The E/C spoke with the doctor thereafter providing additionalfacts of the claimant’s work history and he opined that the MCC of the claimant’s condition and need for carewas not the IA. The E/C denied all benefits requested on 6/14/17. The JCC held that the E/C was not estoppedfrom asserting an MCC defense in this case even though they did not pay the claimant indemnity after her5/24/17 visit when she was assigned restrictions because there was no evidence that the claimant’s wage losswas related to the accident as Dr. Cummings testimony was unrefuted. Click here to view OrderJCC Havers (Miami)(Andrew Borah) – Misrepresentation Defense; Claims denied with prejudice; PFB’sdismissed with prejudice. Claimant was a CNA at a nursing home for 33 years. Claimant alleged that she waspushed down to the ground while attempting to bathe a resident. E/C argued that Claimant was not pusheddown by a resident, but fainted. E/C authorized Dr. Krestow, who placed Claimant at MMI with a 0% PIR.Shortly after being placed at MMI, the claimant was discharged by the employer for filing a false description ofher accident. Claimant filed an additional PFB after being placed at MMI and terminated by employer. E/Casserted a misrepresentation defense. Claimant died 11 months after filing the additional PFB, and all activePFB’s were dismissed as a result. Claimant’s estate filed another PFB seeking TPD and medical costs, but
attached no billing information. E/C did not assert a misrepresentation defense to the new PFB’s, and theparties stipulated to compensability.Dr. Krestow placed the Claimant at MMI because she was asymptomatic. Dr. Thaker, E/C’s IME, opined thatthe Claimant’s neurologic exam was essentially normal, and placed the claimant at MMI with a 0% PIR.Neither of these doctors diagnosed the Claimant with post-concussive syndrome, cervicocranial syndrome, orcervical myofascial syndrome. EMA, Dr. Ross, diagnosed the claimant with a memory disorder, chronicheadaches and neck pain most likely of myofascial origin. However, EMA gave the opinion that theseconditions were not causally related to the industrial accident. EMA agreed with Dr. Krestow’s MMI date.Claimant’s counsel did not object to EMA report when it was filed, but subsequently objected to it on groundsof bolstering due to the inclusion of three articles regarding congestive heart failure in the footnotes. Claimant’scounsel elicited testimony about each footnote. The bolstering objection was overruled.Claimant’s IME, Dr. Suite, diagnosed the claimant with post-concussive syndrome, cervicocranial syndrome,cervical herniated disc (with no MRI taken), and cervical myofascial pain syndrome. Dr. Suite opined that theClaimant was not yet at MMI, and assigned work restrictions, including the avoidance of stressful situations.E/C objected to this testimony based on Daubert, but was overruled. The JCC found that there was no evidenceto rebut the EMA’s findings. The JCC held that the Claimant was at MMI as diagnosed by Dr. Krestow. Finally,Claimant offered no testimony establishing that the treatment she obtained on her own was medically necessaryand causally related to the industrial accident. Click here to view OrderJCC Walker (Panama City)(Scott Miller) – Denied contested attorney fee. Former attorney sought feeentitlement based on two PFB’s, where the E/C failed to provide benefits in a timely manner. E/C argued thatthere was no fee entitlement, as the PFB’s were previously denied by an earlier order from the JCC(specifically, the retired JCC Roesch). The JCC granted the E/C’s Motion to Compel Verified Petition forAttorney’s Fees and Costs regarding the two PFB’s in question. Claimant did not file a Verified Petition forAttorney’s Fees and Costs, and Judge Roesch subsequently dismissed the claim for attorney’s fees and costsassociated with both PFB’s. Claimant filed a Motion to Set Aside the dismissal, which was denied by JCCRoesch. There was no further record activity on the docket for almost one year.Since JCC Roesch previously ruled on the attorney fee issue as it related to February 7, 2014 (by dismissing it),JCC Walker found he had no appellate jurisdiction to overturn that decision. E/C filed a Motion for Failure toProsecute on the July 16, 2015 PFB, Claimant said they had “no objection to the Motion to Dismiss.” The JCCagain stated that they had no jurisdiction to re-open the previously closed matter. Click here to view OrderDCA CasesCity of Homestead/PGCS v. Foust, So.3d (Fla. 1st DCA 1/26/18)Firefighter/Law Enforcement Presumption/Pre-Employment Physical when hired as Auxiliary LEOThe DCA reversed the JCC’s finding that the claimant’s heart disease and hypertension were compensableunder F.S. 112.18(1). The claimant had a pre-employment physical on 1/28/83 to become an auxiliary LEOwith the city, which did not reveal any evidence of heart disease or hypertension. Claimant did not have asecond pre-employment physical prior to being hired as a full-time LEO for the city on 10/1/84. The DCA
rejected the JCC’s findings in relation to effective date of the application of the presumption to local LEOs, thatthe city had waived or acquiesced to the validity of the pre-employment test, and lastly, that the preemployment physical took place “at or near the time” of entering full duty status. Because Claimant did not passa physical examination upon entering into service as a full-time LEO, he was not entitled to the presumption ofoccupational causation of his heart disease and hypertension under section 112.18(1). Click here to viewOpinionJCC Merit OrdersCompensabilityJCC Kerr (Miami) – Compensability granted; TTD/TPD granted; Attendant care granted. Claimant was injuredafter being hit by a car while riding in a golf cart on the grounds of employer’s facilities, sustaining braininjuries and a fractured left leg. E/C denied the claim entirely, citing that Claimant “willfully intended” toinjure himself by exiting the moving golf cart near a road. Claimant was previously treated for depression andpanic attacks. Claimant does not have any memory of the date of accident, but denies any intention to injurehimself. During the investigation, the employer recorded conversations with the driver of the golf cart andanother witness. The recordings were deleted after the employer learned a neighboring business had securitycameras. The JCC denied that this was spoliation, as the recordings were not deleted in bad faith. E/C did notprovide any evidence that Claimant was suffering from any psychological malady at the time of the accident.Claimant provided expert testimony that showed it was inconclusive as to whether Claimant left the cart on hisown or was thrust out by a sudden left turn. The JCC held that the accident was compensable in light of thesecurity camera footage and the expert testimony. Claimant’s IME (Dr. Suite) testified that the brain injuriesrendered Claimant unemployable, and is not at MMI. E/C’s IME (Dr. Herskowitz) testified that Claimant couldengage in light duty work, and that the prognosis should improve in the future. However, Dr. Herkowitz wasnot given all medical records during his examination of the Claimant. The JCC held that Claimant was dueTTD benefits from the date of the accident, until he saw Dr. Suite, and was due TPD from the next date to thepresent. Claimant’s AWW is 988.46 and he had no health insurance. However, Claimant reported accidentinsurance at 13.13 per week. The JCC held that accident insurance is not part of the AWW calculation. TheJCC found that Dr. Suite’s recommendations for an electroencephalogram and 12 hours of attendant care werenecessary for the Claimant’s care. Click here to view OrderJCC Owens (Port St. Lucie) – Lack of jurisdiction on PFB. Claimant filed a PFB seeking payment to “SyncConsulting” for various pharmaceuticals prescribed by the authorized physician. The authorization and cost ofthe prescriptions were not in dispute. Claimant did not seek reimbursement of any out of pocket expenses. TheE/C argued that the PFB did not seek entitlement to a benefit, but merely wanted the JCC to address thetimeliness of the payments made to secure the prescriptions. The JCC found there was no jurisdiction over theissues within the petition. Click here to view OrderJCC Almeyda (Miami) – Denied all PFBs/benefits with prejudice finding the statute of limitations had run. Theclaimant alleged implanted hardware in his knee tolled the SOL. The E/C asserted the affirmative defense of thestatute of limitations in the pretrial stipulation. The claimant did not reply to that defense. The Claimant reliedsolely on the hardware as tolling the SOL. Aside from the fact that the surgery and hardware were implanted by
an unauthorized doctor, the JCC ruled that failure to reply to the SOL defense did not give the E/C notice of theissues to be tried and was a violation of rules and case law. Click here to view OrderPermanent Total DisabilityJCC Dietz (Sebastian-Melbourne)– Awarded PTD. The 67 year old claimant was a high school graduate with acosmetology license who worked as a receptionist with the insured for 16 years. She had significant injuries tothe right knee/leg and also back, resulting in three surgeries to the RLE and ultimate placement at MMI on12/14/16 (all parties stipulated to this date). Dr. Shute assigned restrictions per an FCE. Dr. Lichtblau felt theclaimant should work at a less than sedentary level and Dr. Simon agreed in addition to addressing the need foradditional procedures for the claimant. The JCC accepted the testimony of Dr. Lichtblau and Dr. Simon overDr. Shute and held the claimant was PTD based on medical limitations alone in addition to considering medicallimitations coupled with vocational factors. Both vocational experts agreed that the claimant’s restrictions wereless than full sedentary. Claimant vocational expert was Jeannine Salek and E/C vocational expert was JohnRoberts. Click here to view OrderIndemnity BenefitsJCC Pitts (Orlando) – Denied IB benefits to Orlando Police Officer tasked by the FBI to document and removebodies from Pulse Nightclub after the shooting on 6/12/16. He developed PTSD which was accepted andpsychiatric care was authorized. His authorized pscyh, Dr. Figueroa placed him at MMI and assigned a 6% PIRon 4/25/17 and later increased the PIR to 21% in deposition. The City paid out a few weeks of IIBs and thenstopped, denying additional payments. A claim was filed for payment of the IIBs and the E/C denied sincethere was no evidence of a physical injury that occurred on 6/12/16 occurring in conjunction with the mentalinjury. The claimant also has a separate compensable HTN claim with a 7/19/16 date of accident which heargued was sufficient to satisfy the requirement for the physical injury even though that did not occur on6/12/16. The JCC entered a 26 page order and was clearly troubled by having to deny IIBs to the claimant.Click here to view OrderJCC Owens (Port St. Lucie) – Granted TPD from 8/19/17 to 8/28/17, the date of MMI, plus penalties andinterest. A prior Final Order denied a recommended TKR as not compensable. However, the claimant hadcompensable injuries and came under the care of a new orthopedist. The claimant was less that forthright withthe new doctor who recommended a TKR. The orthopedist did not address MMI/PIR in his DWC-25s. Atdeposition, confronted with all the facts, the orthopedist opined that the claimant had reached MMI on 8/28/17.The JCC agreed. Of additional interest was the issue of an offer of settlement in relation to attorney feeentitlement. The JCC determined that the offer of settlement was not valid as it did not meet the requirements ofsections 440.34(2) in that the offer to settle did not address each issue, specifically, in this case, penalties andinterest. Therefore, the JCC found fee entitlement in regards to obtaining the closed period of TPD. Click hereto view OrderMedical BenefitsJCC Holley (Jacksonville) – Granted medical and indemnity benefits; denied misrepresentation defense. Theclaimant alleged a repetitive trauma injury to both hands and feet using a 3/20/17 DOA. The E/C initiallyprovided a PCP but later denied the claim on 5/3/17, asserting notice and misrepresentation. The E/C agreedthat they were aware of alleged injuries by 4/19/17 so the JCC denied their notice defense. The E/C asserted themisrepresentation defense on the basis that the claimant was not truthful in deposition about his work paintingcars at his home. The E/C presented two witnesses – one said he hired the claimant in 2009 to do a paint job on
a vehicle which was done but this man never saw the claimant do any painting himself. The other witness saidhe hired the claimant to do a paint job in May of 2016 which was completed but he also never saw the claimantdo any painting himself. The claimant testified that he performed paint jobs outside of work at his home 3 or 4times over 5 or 6 years prior to the deposition. The JCC denied the E/C misrepresentation defense. Click hereto view OrderJCC Anderson (Daytona Beach) – Authorized surgery. Claimant filed a Motion to Enforce a Joint Stipulation,stating that E/C agreed to authorize surgery as recommended by Dr. Jenkins. Underlying the stipulation werethe results of the EMA, Dr. Inga. The parties agreed that Dr. Jenkins had always recommended a three-levelfusion surgery. However, Dr. Inga opined that a two-level fusion surgery was appropriate. E/C argued thatthey only ever intended to authorize the two-level fusion surgery. The relevant part of the agreement was thatE/C “has agreed to authorize the cervical surgery recommended by Dr. Jenkins.” E/C declined to sign a jointstipulation explicitly stating that the three level fusion was being agreed to, inserting the “Dr. Jenkins” languageinstead. The JCC considered email correspondence due to the potential latent ambiguity in the wording of thestipulation, which suggested that Dr. Jenkins wanted to confer with Dr. Igna prior to making an officialrecommendation. The JCC held that the plain reading of the stipulation was that E/C agreed to whateverrecommendation Dr. Jenkins made, which was a three-level fusion surgery. Click here to view OrderJCC Medina-Shore (Miami) – Awarded payment of attendant care. The parties entered into a stipulation ofresolution of issues regarding two PFB’s, one of which sought payment of 4 hours of attendant care, payableupon receipt of the providers address and SSN. The parties stipulated that the E/C would authorize “attendantcare for 3 hours on the day of surgery for assistance with driving and medication.” Claimant’s husbandprovided transportation to and from the surgery for Claimant, and waited at the hospital during the surgery.Claimant’s husband also administered medications and helped Claimant get up and down the stairs of theirhome. Claimant’s husband testified that he provided approximately 4 hours of care. E/C argued that paymenthad been rendered to the Claimant for 27.60, and that in any event the address and SSN of the Claimant’shusband was never given to them. Claimant’s attorney testified to communications that relayed both theaddress (which was the same as Claimant’s) and SSN to E/C. The JCC found that the 27.60 had been sent tothe wrong party (the Claimant) and that three hours of attendant care were owed to Claimant’s husband. Clickhere to view OrderJCC Rosen (St. Petersburg) – Appointed EMA. Claimant injured his neck, back and suffered from transmandibular joint issues in his jaw as the result of a compensable accident. E/C authorized Dr. Gerges, a painmanagement physician, who recommended Ketoprofen therapy. Dr. Chaumont, E/C’s IME, opined that theneed for Ketoprofen therapy is not causally related to the industrial accident. Rather, Dr. Chaumont opined thatClaimant’s symptoms were suggestive of opioid-induced hyperalgesia. The JCC held that an EMA wasnecessary to resolve the dispute. Click here to view OrderJCC Holley (Jacksonville) – Awarded attendant care. Claimant suffers from compensable traumatic braininjury. In August 2017, the JCC determined that Claimant was entitled to 24 hour per day attendant care, andthat Claimant’s daughter was entitled to reimbursement for care provided. After the hearing, E/C initiallyauthorized only 12 hours a day in attendant care, and authorized 24 hour care a month later. The attendant careservice did not have any staff specifically trained to aid brain trauma clients. E/C offered no explanation whyonly 12 hours were initially authorized, despite the order from the JCC. In late November 2017, attendant carecompletely stopped, and Claimant went without care for 20 days. Claimant’s attorney hired Visiting Angels tocare for Claimant. The E/C argued that Claimant was verbally abusive to staff, used racially insensitive
language, and obstructed their duties. On one occasion, the police were called to intervene. Claimant providedtestimony from Visiting Angels, that Claimant had caused no disruptions to their service, and that they havestaff trained to deal with clients with brain trauma. The JCC found that E/C selected the initial care provider,who later refused to service Claimant. E/C made no effort to designate a new attendant care provider, and theJCC selected one instead, authorizing Visiting Angels. Click here to view OrderJCC Almeyda (Miami) – Granted neurosurgical evaluation. Claimant sought evaluation by a neurosurgeon ofright wrist injury sustained in 2001. The E/C asserted res judicata, as a July 2016 order had been issuedregarding treatment by a neurosurgeon for the Claimant’s neck injury. The claim was heavily litigated, and thefocus of previous discovery was on the neck injury, with one physician previously referring Claimant to aneurosurgeon to rule out the neck injury as the source for the wrist pain. Another physician suspected thatClaimant may have CRPS on the wrist, but this was not further explored at the time of discovery. The JCCdenied the res judicata defense, finding that the wrist is specifically at issue now, where previous litigation anddiscovery focused on the neck injury. The JCC denied treatment for the wrist as premature, but that evaluationof the Claimant’s neurological condition relating to the wrist injury was necessary to determine a causal link tothe industrial accident, if any. Click here to view OrderJCC Medina-Shore (Miami) – Ordered claimant to pay ½ of IME fee for failure to appear. The claimant wasordered to appear at the E/C’s IME and received timely notice. The claimant failed to appear for the IME. Theclaimant failed to appear for the hearing on E/C’s motion for reimbursement. Click here to view OrderAttorne
Jan 26, 2018 · Attorney’s Fees and Costs regarding the two PFB’s in question. Claimant did not file a Verified Petition for Attorney’s Fees and Costs, and Judge Roesch subsequently dismissed the claim for attorney’s fees and costs associated with both PFB’s. Claimant filed a Motion to
