Case Law Update October 2019

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 Amy Ritchey.

DCA Cases

Blanco v. Creative Management Services LLC /Technology Ins. Company, So.3d (Fla. 1st DCA 10/17/19) Exposure Claims/JCC Admission of and Reliance Upon Expert Opinions
The DCA affirmed the JCC’s denial of compensability of claimant’s respiratory condition due to alleged workplace exposure to construction cement dust. The DCA denied four of claimant’s five arguments without opinion, but wrote to address arguments about the admission of and reliance upon the E/C’s expert by the JCC. Claimant was a 17 year smoker, smoking anywhere from a half a pack to three packs a day. In November, his PCP noted his smoking, prescribed an inhaler and diagnosed probable COPD. Several weeks later, the claimant began work with the employer, setting up booths for an art show. During his 11 day tenure, he claimed he was exposed to cement dust, which resulted in an ER trip, and diagnoses of COPD and asthma. Shortly thereafter, the claimant filed a WC claim, which the carrier denied on MCC grounds. The DCA affirmed the JCC’s decision that the claimant failed to meet his burden of proof, considering his inconsistent history and unreliability as a witness. They also rejected his argument that the JCC should have excluded the E/C’s expert (McCluskey – board certified in occupational medicine and a PhD in Toxicology) because he was not a board certified internist or board certified pulmonologist, or a pulmonologist. They cited the Florida Supreme Court’s 2009 Chavez v. State case explaining that the rules of evidence qualify an expert that has “…specialized knowledge, training, or education, which is not limited to academic, scientific, or technical knowledge.” They also noted the claimant did not challenge that McCluskey’s opinions were rendered “..outside his . . . area of expertise, as demonstrated by licensure and applicable practice parameters” as prohibited under the specific IME provision in § 440.13(5)(a), Fla. Stat. (2017). The DCA went on to reject the claimant’s position that the Case Law Update October 18, 2019 IME report should have been stricken per civil case law that excludes IME reports under the business records exception. The opinion notes this preclusion does not apply in WC cases because (1) the statute specifically provides for IMEs to resolve disputes, (2) admissibility under F.S. s. 440.13(5)(e) specifically includes IMEs, and (3), the civil case dealt with concerns that juries may be improperly influenced by such reports, whereas in WC the fact finder is the JCC.

JCC Merit Orders

Compensability
JCC Dietz (Sebastian) – Employee/Employer relationship established in Bifurcated hearing. The Employer was uninsured, unrepresented, and failed to appear for the hearing. Based on the claimant’s unrefuted testimony, the JCC found that the claimant was an employee on the date of accident.
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JCC Rosen (St. Pete) – General Contractor was determined to be the statutory employer, compensability and TTD benefits awarded, but denied TPD. A construction subcontractor hired the claimant to work on an apartment complex and was injured on the job. The subcontractor did not have Florida WC coverage. The JCC held that the general contractor was the claimant’s statutory employer and ordered the payment of hospital bills and the provision of ongoing care. The JCC awarded a period of TTD benefits at the minimum $20.00 per week since the claimant did not report his income for tax purposes and denied TPD since the claimant failed to report post-accident earnings.
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JCC Lewis (Ft. Laud) – Denied compensability based on drug test refusal. The Claimant was injured on the job and transported by ambulance to a hospital. It was undisputed that the employer requested a post-accident drug and alcohol test and advised the claimant that the technician was on the way to the hospital. The claimant left before the technician arrived, even though he was told by employer representatives that he should wait. He claimed that he waited over an hour, but an employer witness testified that he only waited 30 minutes. The technician arrived 10-15 minutes after the claimant left. The claimant argued that he did not refuse the test and waited for a reasonable period of time. The JCC disagreed and found that his action in leaving the hospital before the tester arrived constituted a refusal to submit and, by so doing, he forfeited his eligibility for WC benefits.
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JCC Jacobs (Miami) – Denied Compensability. The E/C denied compensability based on no accident in the course of employment and untimely notice. The JCC accepted the Employer witnesses’ testimony over the Claimant’s, finding that the claimant did not report injuring his back at work but rather he said that he injured it at home. The claimant also failed to submit any medical evidence to establish an injury based on objective relevant medical findings.
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JCC Humphries (Jacksonville) – Awarded compensability of hypertension and stroke and treatment with a PCP. The claimant had been a corrections officer for 10 years when he woke up feeling odd, with elevated blood pressure and nausea the entire day. It was determined that he had sustained a stroke. The E/C challenged the presumption of compensability and argued that the claimant’s blood pressure at the time of his pre-employment physical was 142/90, even though the physician conducting the examination concluded that the examination did not reveal evidence of hypertension. The claimant’s IME Dr. Kahn (cardiologist) opined that the claimant developed hypertension over the course of his employment and there was no evidence of same prior to his employment. The E/C’s IME Dr. Videau (cardiologist) acknowledged that there was no diagnosis of hypertension prior to or at the time of the claimant’s physical, but he felt that the physical performed was subpar and the blood pressure should have been taken on both arms. Dr. Videau opined the pre-employment exam suggested hypertension. The JCC found that neither IME doctor was able to state unequivocally that the claimant demonstrated evidence of hypertension. Since the hypertension is presumed to be compensable, the JCC also found the stroke compensable, as both IME doctors opined that hypertension caused the claimant’s stroke. The JCC rejected the E/C’s argument that the presumption was rebutted due to the claimant’s comorbidities including obesity, diabetes, dehydration, and smoking causing the stroke as well as the E/C’s argument that the claimant materially departed from his prescribed course of treatment leading to an aggravation of his hypertension.
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Medical

JCC Winn (Pensacola) – Awarded continued treatment of the knee; denied authorization of surgery, and denied indemnity benefits.. An MRI days after the accident revealed chronic chondromalacia and a meniscal tear of indeterminate age. There was no evidence of any prior pain, problems or treatment to the knee. Dr. O’Grady, the authorized orthopedic, opined that the meniscal tear was pre-existing because tears were more common in her age group (67 years old) and her symptoms did not correlate with an acute injury. His opinion was that the work accident was not the MCC of the need for treatment. The claimant’s IME, Dr. Dewey, opined that the fall at work caused an aggravation of her pre-existing chondromalacia and was the MCC of the meniscal tear. He recommended surgery. The JCC accepted Dr. Dewey’s MCC opinion over Dr. O’Grady’s and awarded continued orthopedic care. Because surgery has not been recommended by an authorized doctor, the claim for surgery was premature and denied. There was no medical evidence of TTD, and TPD was also denied because the evidence showed that the claimant failed to respond to 300 offers of modified work from her employer.
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JCC Anderson – Denied treatment for neck. The Claimant sustained a cervical strain and right rotator cuff impingement in a 2015 accident. The E/C authorized Dr. Halperin and Dr. Weber, and the claimant reached MMI for all conditions 4/16. Claimant returned to Dr. Halperin in 2017 and 2018 complaining of neck and trapezius pain with radicular symptoms into the right hand. Dr. Halperin diagnosed cervical radiculopathy, unrelated to the work accident. Dr. Weber opined that cervical strain had resolved with no permanent impairment and the current radiculitis was unrelated to the work accident. Claimant’s IME Dr. Kugler opined that the claimant had cervical facet syndrome due to the accident. The JCC accepted the authorized doctors’ opinions over Dr. Kugler’s, finding that he had failed to review the authorized doctors’ records and based his diagnosis on a single examination and the authorized doctors were in a better position to assess the cause of the claimant’s current neck complaints.
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JCC Stephenson (West Palm Beach) – Granted one time change within a reasonable distance of the E/C’s choosing. The E/C timely authorized an alternate allergist 54 miles away from the claimant’s home. The claimant objected to the distance and requested a doctor in Palm Beach county. The JCC found that the distance was unreasonable and ordered the E/C to authorize an allergist within a reasonable distance of the claimant’s home. Click Here to View Order

JCC Almeyda (Miami) – Denied Psychological treatment, awarded period of TPD. The claimant sustained a compensable accident which led to three back surgeries and a spinal cord stimulator. He requested psychiatric care due to anxiety, anger, and short-temper. The E/C’s IME Dr. Paredes (psychiatrist) opined that his anger and frustration from the surgical complications were within normal limits and psychiatric treatment was not necessary. The claimant secured an IME with Dr. Brusovanik, an orthopedic, not a psychiatrist. Dr. Brusovanik recommended a psychologist, as the claimant cried at times during the IME. He also opined that the claimant was not at MMI and recommended another surgery. Dr. Hodor (orthopedic) was appointed as the EMA and opined that the claimant had reached MMI from an orthopedic standpoint, but he recommended pain management and psychological support. The JCC found that the orthopedic opinions concerning psychiatric/psychological treatment, including that of the EMA, did not constitute competent substantial evidence. The JCC accepted Dr. Parede’s opinion that psychiatric treatment was not warranted. The JCC also found that the EMA went outside of the scope of his appointment in recommending pain treatment and psychological treatment and rejected those opinions. The JCC accepted the EMA’s opinion that the claimant is not at MMI from a pain management standpoint and awarded a period of TPD benefits.
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JCC Kerr (Miami) – Denied Misrepresentation defense, medical treatment awarded. The E/C alleged that the claimant misrepresented her physical condition in deposition and misrepresented her earnings. The E/C argued that the claimant repeatedly presented to Dr. Hodor with an antalgic gait and using a cane. Some surveillance showed her walking unassisted and other days of surveillance showed her walking with the cane and holding onto railing to walk. Dr. Hodor testified that the video was not inconsistent with her presentation, or in general for patients with failed back syndrome, as episodes may fluctuate. Dr. MCarthy, the authorized pain management doctor, also did not think the video contradicted her representations to him. The claimant’s depositions varied in her complaints and limitations at the time of each of the depositions, but she testified that she could walk without the cane, though it was not clearly articulated how far she could walk. Relative to the DWC-19s, the claimant reported no earnings, but indicated on the forms that her husband performed the work, even though any checks for the work were made payable to the claimant. She also disclosed this arrangement in deposition, as her husband cannot open a bank account. The JCC found the claimant credible, but a poor historian. The JCC denied the misrepresentation defense and awarded a second psychological opinion for a spinal cord stimulator based on the unrefuted opinions of Dr. Hodor and Dr. McCarthy, follow up care with Dr. McCarty, and a Lidoderm patch.
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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