HRMCWW Cases. JCC Pitts (Orlando) (William Rogner) Awarded $1, in taxable costs to E/C. Click here to view Order

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1 Case Law Update AUGUST 2, 2013 WINTER PARK 1560 ORANGE AVENUE, SUITE 500 WINTER PARK, FL TEL: (407) FAX: (407) This Update contains summaries of all relevant Appellate decisions 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. Please feel free to contact Rogers Turner (rturner@hrmcw.com) or Matthew Troy (mtroy@hrmcw.com) with questions or comments on any of the listed cases. HRMCWW Cases JCC Pitts (Orlando) (William Rogner) Awarded $1, in taxable costs to E/C. Click here to JCC McAliley (VTC Miami) (Zal Linder) Awarded $2, in taxable costs to E/C. Click here to District Court of Appeal Cases Bustamante v. Amber Construction/American Interstate Ins. Co., So.3d (Fla. 1 st 8/1/2013) Medical Benefits/One Time Change DCA The DCA reversed the JCC s finding that the carrier timely complied with the onetime change request. The sequence of events was as follows: September 24 claimant attorney ed request for one time change September 26 Adjuster responded, advising she would send notes to the Ortho Inst. to see if they will treat claimant

2 9/28 Adjuster sent records to Ortho Inst., asking that one of the physicians assume treatment and schedule appt. (The claimant was not copied on this communication) 10/5 claimant notified OC Dr. Kaplan is authorized physician, and an appointment was scheduled for 10/16. Claimant attorney responded that he hadn t received a response and referred claimant to another physician. The DCA citing Harrell, noted it is not enough for the adjuster to agree and indicate that an appointment will be set. Rather, they need to identify the physician who is authorized. They also cited to the HMHost v. Frederic case, which found a carrier fully complied with the onetime change statute, even though they timely informed the claimant of the identity of the onetime change doctor, but did not inform the doctor within that time frame. The DCA found it significant that Frederic s identification of the doctor allows the claimant to follow up if they don t hear anything. None of the onetime change cases address the reality of identifying doctors who likely may never agree to see the claimant. However, it appears this line of cases strongly suggests that a valid timely response to a request for a one time change should include authorizing a specific doctor, and that authorization should be sent to both the claimant attorney and the doctor. From that point on, repeated timely contact should be made to confirm acceptance of the authorization and scheduling of the appointment. Upon receiving word that the doctor will not accept authorization, an immediate alternate doctor should be authorized, again informing all parties. Click here to Figueroa v. Delant Construction, So.3d (Fla.4 th DCA 7/24/13) Employer Immunity/Intentional Tort Exception The 4 th DCA affirmed the trial judge s award of summary judgment for the statutory employer. The DCA agreed with the trial judge that the plaintiff had not provided any evidence that there were (1) no prior similar accidents or (2) a specific warning explicitly identifying a known danger, which would thereby establish that the defendant engaged in conduct it knew was virtually certain to result in injury or death to plaintiff. Further, the unrefuted evidence demonstrated that the danger or risk was apparent to Plaintiff, and that there was no concealment or misrepresentation by the defendant. The intentional tort exception is applicable only where the plaintiff proves by clear and convincing evidence that: 1. The employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee; and 2. The employee was not aware of the risk because the danger was not apparent; and 3. The employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

3 The court noted that the virtual certainty standard for immunity is amenable to determination at the summary judgment stage. Click here to Compensability JCC Merit Orders JCC Sojourner (Lakeland) Denied compensability. The claimant had a prior 2009 meniscal tear injury without surgery with the same employer, for which the E/C argued the SOL had run. He alleged a new 2012 knee injury. The JCC found the history regarding the 2012 accident was inconsistent and found no evidence that a new injury had occurred. The JCC also found the 2009 claim barred by the SOL. Click here to JCC Sturgis (VTC Miami) The claimant worked for a fast food restaurant within a condo/yacht club with less than 4 employees. The claimant alleged that the condo association was her statutory employer. The JCC found no evidence that the condo association sublet any obligations to the claimant s employer. Click here to JCC Lorenzen (VTC Daytona Beach) Denied compensability. The claimant alleged either a repetitive trauma or specific accident while loading and driving a truck. The claimant had significant prior history and treatment for the same complaints. The JCC found the claimant inconsistent and not credible. Click here to JCC Holley (Jacksonville) Awarded compensability of hypertension. Presumption claim. Denied E/C s SOL defense. The E/C accepted the claim and provided benefits. The claimant treated for hypertension on his own after the authorized doctor told him it was not related to work. The claimant testified he became aware of the compensable nature at a FOP meeting in The JCC found the E/C was estopped from asserting the SOL. Click here to JCC Spangler (VTC Miami) Determined claimant s statutory employer. The claimant worked for an uninsured AC installer (who used a fake certificate of coverage) as part of the development of a restaurant franchise. The JCC found the franchisee had contractual duties to the franchisor to build the restaurant to specifications and sublet those duties to an uninsured general contractor. The JCC found the franchisee to be the statutory employer. Click here to JCC Rosen (St. Petersburg) Denied all benefits based upon The claimant alleged three accidents. He denied prior complaints, but medical records showed back pain one month before his first injury. Click here to

4 Permanent Total Disability JCC Beck (Sarasota) Awarded new law (2009) PTD and psych. The claimant injured her wrist in an altercation with a student. The E/C initially accepted the claimant s psych condition before denying it. The JCC found the E/C stipulated to compensability of the psych condition and had not demonstrated a break in causation. The psych EMA (Dr. Warren) opined the claimant was PTD. The E/C argued at trial that the psych EMA s testimony was inadmissible under the new Daubert expert evidence standard, however they did not assert this objection at deposition. The JCC found that psych restrictions prevented the claimant from being employed. Click here to JCC Sojourner (Lakeland) Awarded new law (2004) PTD. The 63 year old fruit inspector worked seasonally until he was laid off. The JCC found both vocational experts found jobs for the claimant, however the JCC found the claimant PTD due to a good faith and exhaustive job search. Click here to Indemnity Benefits JCC Lazzara (Tallahassee) - Awarded TPD. The claimant resigned her employment and then claimed TPD. The JCC found the resignation was due to interpersonal issues and not justified. The JCC found TPD payable based upon deemed earnings. Click here to JCC Lorenzen (Tampa) Awarded a period of TPD. The JCC found the claimant had prior work and non work related neck and back injuries. The JCC found the claimant did not prove what if any of his pre-existing condition was due to work related injuries. The JCC then found that the IA was no longer the MCC of any disability or need for treatment per the EMA (Dr. Melton). The JCC awarded 8 days of TPD until the E/C made an offer of light duty work which the claimant refused. Click here to view Order Medical Benefits JCC Roesch (VTC Ft. Lauderdale) Awarded surgery. The E/C did not contest surgery, but could not find a physician willing to perform it. The JCC ordered the E/C to find and authorize a doctor. Click here to JCC Sojourner (Lakeland) Awarded a different doctor. A 2011 order found the IA was the MCC of the need for a hand specialist. The same doctor again opined that the IA was not the MCC and did not recommend treatment. The E/C again denied follow up. The JCC found the prior order required the E/C to authorize a doctor who would provide treatment. Click here to JCC Beck (Sarasota) Awarded surgery. Denied apportionment. The authorized doctor recommended a multilevel fusion. The claimant had degenerative changes, multiple herniated disks, and syphilis. The doctor arbitrarily split causation 60/40. The JCC rejected the claimant s Daubert objection to the opinion as the depo occurred before the new statute applied and held that the opinion

5 was based upon objective findings. The JCC found there was no aggravation of a pre-existing condition and that the E/C did not prove merger. Click here to JCC Kuker (Miami) Awarded attendant care d/a. The JCC found an emergency situation existed and that the claimant needed 12 hours per day of attendant care to keep her from falling, as she did in February. The JCC found the E/C s refusal to provide the care evidenced a disregard for the claimant s health, safety and welfare. Click here to JCC Castiello (Miami) Denied further treatment and claimant s choice of 1x change. The JCC found the claimant not credible as he had not provided his prior history of back complaints and changed his story. The JCC accepted the EMA (Harrell) opinion that the IA was not the MCC of the need for treatment. Finally, the JCC found the E/C timely authorized a 1x change. Click here to JCC Pitts (Orlando) Awarded continued pain mgmt. The claimant sustained a hernia and developed neuralgic pain complaints which were treated by injection and rhizotomy. The claimant requested a 1x change who attributed the pain to the claimant s back. The JCC rejected the 1x change s opinion, found there was no pre-existing condition and that MCC did not apply. Click here to Attorney Fees JCC Hill (Miami) - Awarded costs. Denied fees. The claimant overcame the E/C fraud defense but lost on a SOL issue. Therefore the JCC found the claimant did not establish fee entitlement for ongoing benefits. However the JCC awarded costs for defeating the fraud defense were awarded. Click here to JCC Sturgis (Ft. Myers) Awarded $9,380 $350) attorney fee d/a. Previous fee award for securing PTD benefits. This award was for P&I for late paid PTD benefits. Click here to view Order JCC Rosen (St. Petersburg) Awarded $3,450 $300) attorney fee and $250 in costs to claimant s prior attorney d/a. Click here to Same case, denied fees. Click here to JCC Sculco (Orlando) Awarded $1,750 stat fee and $1,250 in costs. 10/2009 d/a. Claimant s attorney argued the stat fee was confiscatory of his time, citing Makemson. Click here to view Order JCC Humphries (Jacksonville) Awarded $1,356 $120) appellate attorney to E/C s attorney as sanctions under Click here to JCC Hill (Gainesville) Denied attorney fee. The claimant requested mileage which the E/C denied until the claimant filed a PFB. The JCC found that as the benefit was paid within 30 days no fee was due, and rejected the claimant s old case law argument. Click here to

6 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