Luks Santaniello's Florida Workers Compensation blog

This January 16, 2013 1DCA opinion affirmed Judge Pecko's JCC ruling. In this case, the claimant Claimant challenged an order of theJCC that accepts the opinion of one medical doctor over another and thereby denied benefits. The claimant did not request an EMA.  The claimant's argument was that the JCC committed fundamental error by not appointing, sua sponte, an EMA to resolve the disagreement in medical opinions. The Claimant also  argued that the JCC has no “jurisdiction” to resolve medical disagreements unless an EMA is first appointed.  The 1DCA wrote that "Without equivocation, this court has held that a JCC’s failure to order an EMA evaluation is not fundamental error. Although a JCC is required to appoint an EMA where there is a disagreement in medical opinions, a party who does not timely seek the appointment of an EMA below will not be heard on appeal to complain of the failure to designate an EMA.”   The 1DCA further indicated that...

This August 8 1DCA opinion reverses Judge Lazzara's ruling. The case revolves around a claimant who was requested by her employer to drop off a package for shipping. As she was returning to her desk, the claimant turned a corner in the hallway and "felt her right foot slip from under her' and fell. As a result of the fall, the claimant sustained a left shoulder rotator cuff tear.  The claimant had no prior history of problems with her left shoulder. There was no evidence that the fall was caused by a medical condition. The JCC found that the claimant had no pre-existing conditions that could have caused the fall. However, the JCC still held that the 'claimant's accidental injury on the employer's premises did not arise out of her employment because her work activity at the time of the incident was not the major contributing cause of her fall or injury."   The 1DCA held that in the absence of competing causes of the claimant's accident/injuries t...

This August 31, 2012 1DCA opinion reversed Judge Winn's JCC decision. In this case, the timeline is important. In short, the timeline was:   A PFB for PTD benefits was filed on January 25, 2011. The carrier received the PFB on January 28, 2011. On February 16, 2011, the carrier accepted the claimant as PTD (18 days after receipt of the PFB). The very next day the carrier issued a $2,000 advance that had previously been requested by the claimant. Finally on March 10, the carrier issued a check paying the claimant PTD benefits minus the $2,000 cash advance.(the first installment of PTD benefits was made 41 days after the PFB was received by the carrier.) Claimant's counsel filed for attorney fees asserting as grounds that the carrier initially denied the claim but ultimately accepted the claim. The JCC denied fees concluding that the advance paid was a discharge of liability from the date thereof until such advance is recouped by offset against subsequent be...

This August 10, 2012 opinion reverses Judge Rosen's ruling. The 1DCA held that the JCC erred in making findings on matters outside of the issues framed for the hearing. The JCC had denied a claim for PTD benefits basd on the grounds that the claimant had not proven the existance of a back injury due to rpetitive trauma with a date of accident of January 26, 2004. The PFB filed by the claimant never raised the issue of compensability. In this case, the claimant had a prior accident while working for the same employer. That case never resolved. On March 10, 2004, the claimant resigned from the employer. However, it was not until 2010 that the claimant filed a PFB for PTD benefits using March 10, 2004 as the start date for the PTD benefits. The PFB mentioned a repitive trauma accident. He used January 26, 2004 as the date of accident. The PFB assumed that the accident was accepted as compensable. The JCC ruled that the claimant did not establish a repetitve trauma to his back. ...

This August 7, 2012 1 DCA opinion affirmed Judge D’Amrosio’s ruling. The 1DCA held that any E/C asserting the jurisdictional defense that the payment of outstanding bills for medical care is a reimbursement is conceding that, if any entity is financially responsible for the disputed bills, it is the carrier and not the claimant. The 1DCA indicated that raising a 440.13(11)(c) defense is a de facto concession by the Employer/Carrier that the services or products billed were provided by an authorized provider for compensable injuries “in accordance with” or “pursuant to” chapter 440 and that the claimant is insulated from financial liability for such charges. Furthermore, the E/C’s representation was a binding legal concession, by operation of section 440.32(3), and it waived any challenge to the medical necessity of the care.   Click here to see the 1DCA opinion

This June 13, 2012 1DCA reversed Judge Condry's JCC decision. The JCC denied compensability of the claimant's hypertension on the ground she failed to establish eligibility to rely on the statutory presumption occupational causation available via section 112.18. The claimant met three of the four requirements of section 112.18: 1    She was a police officer, 2    Her condition resulted in disability, 3    She successfully passed a physical examination upon entering into service. The JCC found that the claimant's essential hypertension did not meet the 4th requirement which indicates that the condition itself be one of those listed in section 112.18: "tuberculosis, heart disease, or hypertension. The claimant was diagnosed with essential hypertension. She introduced unrefuted medical opinion testimony that essential hypertension was the same thing and the same condition as arterial hypertension. In Bivens v. City of ...

This May 29, 2012 1DCA decision reverses Judge Hill's JCC decision. The claimant filed a PFB and the JCC determined that the “initial response” was the November 9 documents prepared by the EC (notice of appearance, request for production, letter of representation, notice of deposition, and letter to the mediator) the JCC concluded that because the E/C did not assert an SOL defense, the E/C had waived that defense. The E/C argued that its initial response to the Petition for Benefits was filed on November 10, 2009. Based on the case of Certain v. Big Johnson Concrete Pumping, Inc., 34 So. 3d 149 (Fla. 1st DCA 2010), the 1DCA ruled that that the “initial response” has to explicitly state a position either denying or conceding the particular claims therein.