Case Law Update November 2022
Updated 11-30-22
| Manso v. Southeast Personnel Leasing, Inc., ___So.3d___(Fla.1st DCA 11/2/22) (Bill Rogner) The E/C utilized a peer review physician. They then sought an IME. The Claimant sought to quash the Order compelling the IME via a Petition for Writ of Certiorari. The Claimant argued the E/C was seeking an alternate IME. However, the E/C was only seeking an initial IME. The Claimant’s Petition for Writ of Certiorari was denied. Click here to view Order Wyatt v. Polk County Board of Commissioners, ___So.3d___(Fla.1st DCA 11/2/22) First Responder Presumption The JCC denied claims for medical and indemnity benefits for PTSD suffered by an EMT under F.S. §112.1815. This statute was amended on 10/1/18 to allow first responders such as the Claimant to receive medical and indemnity benefits for a mental or nervous injury without an accompanying physical injury. The qualifying events the Claimant witnessed as an EMT all occurred prior to the 10/1/18 amendment to §112.1815. As such, the JCC denied the claims finding the Claimant’s accident preceded the statutory amendment. The First DCA reversed and remanded. They reasoned the Claimant’s date of accident for an occupational disease such as this is based on the date of disability per §440.151. The Claimant’s disability began in November 2018, after the statutory amendment. Click here to view Order Toufayan Bakery, Inc./MEMIC v. Darius, ___ So.3d___ (Fla. 1st DCA 11/16/22) Temporary Partial/Justifiable Refusal of Employment The DCA reversed the JCC’s award of TPD during a period where the E/C asserted he unjustifiably refused employment. An authorized physician assigned restrictions after the Claimant’s work accident, and the employer offered him work within those restrictions. The Claimant, however, did not appear for approximately six weeks. He did return after receiving a letter indicating he might be terminated if he did not report. After reporting, he worked briefly but the work began to exceed his “no climbing” restrictions and he called out sick. The JCC awarded TPD for the entire period until the no-climbing restriction was lifted. The DCA reversed the awarded period of indemnity where the Claimant simply failed to appear, finding his asserted “subjective belief that he could not work because he was experiencing too much pain…” to be legally insufficient. Click here to view Order B&A Gourmet Foods, LLC/The Hartford v. Mora-Abreu, ___So.3d___ (Fla. 1st DCA 11/30/2022) One – Time Change/”Same Specialty” The DCA reversed the JCC’s Order awarding the claimant her choice of one-time change doctor, finding the E/C authorized an appropriate doctor. After the ER, the claimant treated with Dr. Cortes, who is board certified as a general surgeon and a plastic surgeon, with a certificate of added qualification in hand surgery. After an initial surgery and a second pin removal surgery, the claimant requested a one-time change. The carrier authorized Dr. Easterling, who is board certified in orthopedic surgery, an EMA and, like Dr. Cortes, has a certificate of added qualification in hand surgery. The claimant objected, stating that she required a plastic surgeon, and that Dr. Easterling was not board certified in the same primary specialty as Dr. Cortes. The JCC agreed with the claimant, finding that although both were hand surgeons, hand surgery is a sub-specialty versus a specialty. The DCA analyzed the statute’s term “specialty” against the backdrop of the nature of the claimant’s injury, the authorized course of treatment and the qualifications, training and expertise of the physician. They found that Dr. Easterling was in the same specialty as Dr. Cortes and that he was an appropriate one-time change doctor. In addressing the JCC’s reliance on the 2018 Myers v. Pasco County case (neurosurgeon vs. orthopedic surgeon), they noted the doctors here were in the “same” vs. “similar” specialty. Click here to view Order |