Ceballo v. Langer-Krell Marine Electronics, Inc. / Amtrust North America of Florida

JCC Medina-Shore (Miami) (Andy Borah)(12-4-2020) – Denied TTD/TPD, granted compensability of accident, denied misrepresentation defense, granted authorization of follow-up visit with Dr. Joseph Fernandez for right knee injury, and denied claimant’s and E/C’s motions for rehearing. The claimant injured his right knee and lumbar spine when he fell off a 10-foot-tall ladder. The E/C terminated benefits due to an alleged misrepresentation of prior back problems. Claimant testified that he has memory issues because of a small stroke he had in his brain and did not intend to misrepresent his prior back complaints. Further, Dr. Steinberg, claimant’s IME, testified that a person who suffers an infarct can suffer from memory deficits.  Dr. Hershkowitz, E/C IME, stated claimant only suffered from short-term memory loss. The JCC found the claimant was in a lot of pain at the hospital and relied on his wife in filling out the medical information and that claimant did not intend to misrepresent his back problems to Dr. Acebal. The JCC did find that the claimant made a misleading statement to the carrier regarding his prior back issues in the third recorded statement. However, the JCC ruled that the claimant did not intend to make the misleading statement since the claimant suffered from memory issues, was under heavy pain medication, and requested the recorded statement to be taken on another day, which was denied by the investigator. The claimant’s PCP recommended a right knee MRI and referred claimant for an orthopedic evaluation. The right knee MRI revealed several degenerative changes and a small subchondral fracture of the lateral femoral condyle, thus the JCC granted authorization of a follow-up visit with Dr. Fernandez for the right knee. Further, the JCC found that the claimant did not include medical evidence of work restrictions and MMI status for TTD and TPD to be granted.  The JCC rejected claimant’s motion for rehearing finding no evidence of detrimental reliance or estoppel on claimant’s part regarding E/C’s 3/4/20 and 8/19/20 emails. The JCC also rejected E/C’s motion for rehearing, in which the E/C argued that the claimant falsely testified about his prior back complaints at the final hearing.   Click here to view Order