Levyandlevylaw.com

Adam A. Levy, Esq.
Lauren M. Levy, Esq.
Workers’ Compensation Digest - Florida: Judge of Compensation Claims Orders Throughand Including 1/7/13 In Padgett v. Clay County Board of Commissioners, OJCC Case # 11-021020RJH, D/A 7/23/11, Judge Humphries in a 1/4/13 order denied the firefighter claimant’s petition for
compensability of his stroke. Each party presented the testimony of their IME. The claimant
IME opined that the stroke was due to the claimant’s hypertension. The E/C had already
stipulated that the claimant did not have pre-existing hypertension or heart disease and that
the statutory presumption of Section 112.18 would apply. In contrast the E/C IME opined
that the claimant’s hypertension was caused by his pre-existing polycythemia [high blood cell
count]. The hypertension was further aggravated by the claimant’s use of testosterone and
Anastrozole [an estrogen inhibitor] to treat his personal low testosterone condition. The JCC
appointed Dr. Michael Nocero as the EMA. The EMA agreed with the E/C IME. The
claimant admitted to the use of testosterone at the time of his stroke. He denied that he was
using Anastrozole, however, claiming he discontinued it sometime ago. The JCC rejected
the claimant’s testimony as self serving, based especially on the pharmacy records of
the claimant’s prescription refills. The claimant had refilled his Anastrozole prescription
only a few days before his stroke. The JCC therefore accepted the EMA opinion that the
claimant’s hypertension and consequent stroke were due to non-industrial causes. The
JCC also found that the EMA’s opinion was sufficient to rebut the statutory presumption
of Section 112.18.
In Miles v. Horizon Staffing, LLC, OJCC Case # 12-027894NSW, D/A 10/12/12, Judge Winn in a 1/4/13 order granted the claimant’s motion for an advance in part. The
claimant first argued that she had “not returned to the same or equivalent employment with
no substantial reduction wages.” The JCC noted claimant had returned to work light duty
until November. Even though the claimant had not worked since November, she had
returned to work after her injury for a time. See Worthy v. Jimmie Crouter Excavating,
100 So.3d 727 (Fla. 1st DCA 2012). The claimant next argued that she had suffered a loss
of earning capacity. The JCC noted that earning capacity refers to the claimant’s future
ability to earn wages. Therefore, the claimant required the testimony of someone of
qualified expertise, such as a vocational expert. The claimant’s own lay opinion, even
if uncontroverted, will not suffice. The claimant last argued that she suffered a physical
impairment. Since the claimant’s injury was not open and obvious (she injured her knee,
neck, and low back), the JCC required medical evidence to satisfy this element, not merely
the claimant’s own lay testimony. The claimant satisfied it with a DWC-25 form listing work
restrictions. While the claimant made reference to other monthly bills, she only testified to
being behind in her rent by three months. Therefore, the JCC award an advance of
three months’ rent, or $741.00.
In Torres v. Sedano’s Supermarket, OJCC Case # 12-019948DAL, D/A 4/24/12, Judge Lewis in a 1/7/13 order decided not to impose sanctions on the claimant attorney, ElvisAdan, Esq. The claimant attorney had failed to attend the mediation conference and tried toattend telephonically without advance approval. The JCC had entered an order to showcause, but the claimant attorney failed to respond. The JCC entered a second order to showcause and scheduled a hearing. At the hearing, the claimant attorney explained that he wasconfused as to the location of the mediation conference and thus was unable to attend. Healso explained that he did not receive the first order to show cause. The JCC noted that thisparticular attorney had previous failures in other cases before the same JCC. Moreover, theE/C pointed to other discovery orders in this case with which the claimant attorney had notcomplied. Despite this “pattern of behavior which must be addressed and remedied,” theJCC imposed no sanctions. The JCC did warn that future violations will “will not betolerated and shall result in the imposition of sanctions.” We hope this information has been helpful. Let us know if you have any questions, or would like to discuss further by contacting [email protected],or calling (813) 259-5389.

Source: http://levyandlevylaw.com/pdf/JCC/JCC%20Orders%201-7-13.pdf