Case Law Update May 2020

HR Law Cases

JCC Walker (Panama City Beach) (Paul Luger) – Granted E/C Summary Final Order. Denied/dismissed PFB with prejudice. The JCC found the evidence submitted showed that the PEO never provided WC coverage to the employer, and that the claimant never received wages nor was an employee of the PEO. As the carrier never provided coverage to the claimant, the PEO/Carrier were entitled to be dismissed from the litigation.
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Ellington v. Health Services of Ocoee, LLC/Premier Group, (Fla.1st DCA 5/13/20) (PCA without written opinion). (W. Rogers Turner, Jr. and Bill Rogner) 
The DCA affirmed JCC Sojourner’s Order which found that “…the EC is correct and no further care and treatment for the left upper extremity is warranted as the accident of July 19, 2017 is not the MCC of the claimant’s current need for treatment.” Click Here to View Opinion 

JCC Young (Tampa) (W. Rogers Turner, Jr.) – Awarded amount of fees. The E/C stipulated to attorney fees and costs for obtaining an increase in the AWW and resultant past indemnity. The claimant attorney asserted 28.5 hours of attorney time ($300-$400/hr) and 43.5 hours of paralegal time ($80-$120./hr), and sought $12,104.00. The E/C asserted that 12.9 hours of attorney time and 10.8 hours of paralegal time were reasonable, at a rate of $225/$250/hr and $75-$90/hr, respectively. The JCC awarded 16.8 attorney hours and 17.3 paralegal hours at $275.00/$85.00 respectively, for a total of attorney fee of $6,090.50. The JCC denied their requested costs of $200.00. Click Here to View Order 

JCC Walker – (Pensacola) (Matt Bennett) – Awarded TT/TP. The claimant sustained injury, was taken out of work, had back surgery, returned and then was terminated. The JCC found the claimant was off work from her initial visit until after surgery. Thereafter, the E/C continued to pay the claimant bi-weekly TP. However after she was terminated, they paid at a lower rate subject to deemed earnings/refusal of suitable employment. The JCC rejected this approach, and rejected E/C defenses of voluntary limitation of income and misconduct. He also rejected a defense that the claimant had not returned DWC-19s. He accepted the claimant’s testimony she had looked for work but was unsuccessful.
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JCC Forte (Ft. Lauderdale) (Andy Borah) – Denied benefits. The claimant developed cellulitis at the site of an employer-mandated flu shot. A few weeks later, she was hospitalized with sepsis and lumbar spine osteomyelitis, alleged to be a result of the cellulitis caused by the flu shot. She also developed kidney failure as a result of the medication prescribed for the lumbar spine osteomyelitis. The claimant’s IME, nephrologist Dr. Chokshi determined that the claimant’s kidney failure was related to the medication prescribed for osteomyelitis, but the doctor admitted that he was not qualified to render an opinion as to the causation of the lumbar spine myelitis and sepsis. The doctor only offered an “obvious assumption” that the cellulitis resulted in sepsis and lumbar spine osteomyelitis. The E/C’s IME, infectious disease specialist Dr. Renae opined that the claimant’s osteomyelitis and sepsis were not related to cellulitis, but a urinary tract infection, which was not supported by the labs conducted in the hospital. The JCC rejected both medical expert opinions. The parties previously moved for an EMA, but due to the difficulty finding an infectious disease expert, the parties agreed to withdraw the motion for EMA. The JCC found that the claimant failed to meet her burden of proof to determine that her hospitalization was a result of the cellulitis caused by the employer-mandated flu shot.
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JCC Owens (Port St. Lucie) (Kate Albin) – Denied Claimant’s motion for $2,000 advance. The JCC found the Claimant did not establish she failed to return to the same or equivalent employment with no substantial reduction in her wages. The E/C filed a DWC-25 form indicating the Claimant could return to work without restrictions. The Claimant’s testimony established she returned to work from 8/17/2019 to 3/17/2020 without lost time, with two pay raises, and increased hours. She did not lose time from work until she was furloughed on 3/17/2020 due to the COVID-19 virus. The JCC found the cause of the Claimant’s lost wages since 3/17/2020 was COVID-19.
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JCC Sculco (Orlando) (W. Rogers Turner, Jr.) – Dismissed pending PFB. The pro se Claimant failed to appear for the final hearing despite having been properly noticed.
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DCA Cases

City of Jacksonville/City of Jacksonville Risk Mgmt. v. O’Neal, ___ So.3d ___ (Fla. 1st DCA 4/23/2020) F.S. s. 112.18 Presumption/Trigger Theory 
The DCA again considered this case, after a prior remand. In 2002, claimant was a 29 year old corrections officer. During off duty non-work related sports training, he experienced light headedness, and subsequently underwent a cardiac catheterization on 6/26/02. The doctor intentionally induced arrhythmias, and the claimant alleged a WC claim as of that date. At a hearing in 2016, the JCC awarded compensability as to that injury, finding that although the atrial tachycardia was congenital, it could have been triggered by occupational stress under the presumption statute. The E/C appealed, and the DCA remanded for findings related to the underlying condition and resulting diagnoses. In this underlying Order, the JCC clarified that the diagnosis of atrial tachycardia degenerated into atrial fibrillation and job stress could have been a trigger. The DCA analyzed the E/C’s burden to overcome the presumption, which is to demonstrate the accident arose from a non-work cause or causes. The law also states that the condition may be compensable if a work-related cause triggers the ultimate diagnosed injury; or if an unknown cause triggers the injury. However, the trigger theory analysis is two-tiered and requires the E/C to overcome § 112.18(1)(a)’s presumption for both the underlying condition (the first tier) and, if applicable, the condition’s triggering event (the second tier). The DCA held that because the medical evidence showed that Claimant’s peak exercise workouts in 2002 triggered the degeneration of his congenital heart condition into atrial fibrillation, (but the JCC hadn’t evaluated that evidence as a non-occupational cause that would overcome the presumption), the case needed to be reversed and again remanded for further consideration.
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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 HRMCW 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