Florida Law Weekly - Rissman, Barrett, Hurt, Donahue & McLain, PA

RISSMAN, BARRETT, HURT,
DONAHUE & McLAIN, P. A.
ATTORNEYS AT LAW
EVEN A. RISSMAN
BERT C. BARRETT
NNINGS L. HURT III
BERT A. DONAHUE
HN E. McLAIN III
CHARD S. WOMBLE
HN P. DALY
ACIE B. GREENE
EODORE N. GOLDSTEIN
YMOND A. LOPEZ
NCE R. DAWSON
CHARD B. MANGAN JR.
NRY W. JEWETT II
NIEL M. POLLACK
T C. YOUNG
COLE D. RUOCCO
NIEL T. JAFFE
ATRIZ E. JUSTIN
GREGORY GIANNUZZI
VID K. BEACH
DEAN HEWITT
WARD M. COPELAND IV
VID R. KUHN
WILLIAM LAZENBY IV
CLIFTON ACORD II
BERT D. BARTELS
OF COUNSEL
ROBERT J. JACK
ECUTIVE DIRECTOR
SCOTT PETERSON
TAMPA COMMONS
ONE NORTH DALE MABRY HIGHWAY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM
201 EAST PINE STREET
15TH FLOOR
P.O. BOX 4940
ORLANDO, FLORIDA 32802-4940
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
WWW.RISSMAN.COM
PLEASE REPLY TO: TAMPA
November 5, 2010
207 S. 2 nd STREET
FT. PIERCE, FLORIDA 34950
TELEPHONE (772) 409-1480
TELECOPIER (772) 409-1481
FTPIERCE@RISSMAN.COM
SEAN M. CROCKER
CHRISTOPHER E. DENNIS
SARAH E. EGAN
JONATHAN D. EICHELBERGER
JOSHUA T. FRICK
SUSAN R. FULLER
PAUL B. FULMER
JANNINE C. GALVEZ
ELISE J. GEIBEL
CHRISTOPHER A. HANSON
JEFFREY J. KERLEY
VICTORIA S. LUNA
LAURA F. LYTLE
DARIEN M. MCMILLAN
ERIC F. OCHOTORENA
KARISSA L. OWENS
JEREMY T. PALMA
JEFFREY M. PATNEAUDE
WENDY L. PEPPER
JONATHAN K. POLK
D. BLAKE REHBERG
KELLEY A. RICHARDS
JUAN A. RUIZ
BRYAN R. SNYDER
JILL M. SPEARS
LARRY D. SPENCER
MEREDITH M. STEPHENS
ELIZABETH M. STUART
F. PAUL TIPTON
NICOLETTE E. TSAMBIS
JASON R. URBANOWICZ
CHRISTINE V. ZHAROVA
FLORIDA LAW WEEKLY
1. Permanent Total Disability
Hernandez v. The Geo, Inc., 1D09-4661(Fla. 1 st DCA October 29,
2010)
The claimant filed a petition requesting permanent total
disability benefits prior to reaching statutory MMI or being
placed at MMI by all authorized providers. The JCC held the PTD
petition was premature and a determination of permanent work
restrictions was not appropriate until reaching overall MMI.
This was confirmed by the 1 st DCA. The JCC also denied PTD
benefits for periods after MMI was reached because the claimant
failed to introduce vocational evidence establishing that he
would not be able to work once reaching MMI. The 1 st DCA held
this finding untenable because permanent work restrictions,
which are utilized by a vocational expert to determine
employability, are speculative until reaching MMI.

2. Evidence
Locker v. United Pharmaceutical Group, Inc., 1D10-0464 (Fla. 1 st
DCA October 29, 2010).
The claimant filed a PFB requesting authorization of
continued treatment for her right shoulder and attached a note
from an authorized provider detailing the recommended treatment.
On a prior issue, the JCC relied on an EMA who opined the
claimant had returned to baseline and no further treatment is
medically necessary. The E/C filed a Motion to Dismiss the
Petition arguing that since the claimant failed to challenge the
EMA’s prior opinion, she was not entitled to re-litigate the
issue. Thus, the current claims cannot be in “default, ripe,
due, and owing” as required by the statutes. The JCC granted
the Motion relying on the prior EMA’s opinion. The 1 st DCA
reversed and held that a JCC must not look outside the four
corners of the Petition when ruling on a Motion to Dismiss.
3. Settlement
Cordovez v. High Rise Installation, Inc., 1D09-5786 (Fla. 1 st
October 29, 2010).
DCA
The claimant sought reversal of the JCC’s denial of his
Motion to Vacate settlement. He argued that a new condition
presented after settlement that neither party knew about and,
thus, the settlement should be vacated based on a mutual mistake
of fact. The E/C cited settlement language releasing themselves
of all future benefits related to the work accident. In a
follow-up deposition, the authorized provider opined the unknown
injury was likely caused by the work accident. The 1 st DCA
upheld the JCC’s denial of the Motion by reasoning that the time
to ascertain the full implications of the claimant’s injury is
prior to settlement.
4. Medical Benefits
Harman v. Gadsden Correctional Facility, 1D10-1227 (Fla. 1 st
October 29, 2010).
DCA
The claimant alleged an injury to her knee. The accident
was accepted as compensable and medical treatment was
authorized. The initial authorized provider could not find an
objective basis for the claimant’s subjective complaints and,
rather than placing at MMI, the provider referred the claimant
for a second evaluation to determine if there are any objective

findings. The E/C denied the request and the JCC agreed with
its reasoning that section 440.09(1) requires objective findings
for continued medical treatment. The 1 st DCA reversed and
determined that the JCC’s reliance on 440.09(1) was improper.
In making a determination of authorizing future medical
treatment, the JCC should have relied on section 440.13(2) (a)
and its test of whether the requested benefit is medically
necessary. The only doctor who addressed the issue testified
that the evaluation was medically necessary. The case was
remanded back to the JCC who then determined the referral was
improper as it is considered a transfer of care. The 1 st DCA
again reversed, relying on Morrow v. Sam’s Club, and held that
an evaluation is compensable even if it is to determine whether
there was an objective basis for the claimant’s symptoms.
5. Attorney Fees and Costs
Hack v. Chuck Norris Drywall, 1D10-2041 (Fla. 1 st DCA October 29,
2010)
The parties reached settlement and the JCC approved the
settlement. Claimant’s counsel filed a petition requesting
attorney fees and costs. The JCC determined she did not have
jurisdiction over attorney fees and costs since she already
approved the settlement. The 1 st DCA held that entry of an order
approving a settlement agreement does not, as a matter of law,
extinguish the JCC’s jurisdiction over ancillary liens or claims
for attorney fees and costs.
6. Appeal Venue
B.F. v. AMS Staff Leasing and Aspen Administrators, 1D10-2688
(Fla. 1 st DCA October 29, 2010)
The claimant filed a Motion to transfer venue of his
workers’ compensation appeal to the 3 rd DCA. The 1 st DCA denied
the Motion and cited section 440.271, which states “review of an
order of a [JCC] entered pursuant to chapter [440] shall be by
appeal to the 1 st DCA.” The 1 st DCA reasoned the statute proper
because the state divisions that administer workers’
compensation are headquartered in Tallahassee.

7. JCC decision review
KFC/Yum! Brands v. Benjamin Moore, 1D10-0599 (Fla. 1 st
October 29, 2010)
DCA
At Final Hearing, the JCC accepted the opinion of the
claimant’s long time treating physician over that of the E/C’s
IME. On appeal, the E/C pointed out inconsistencies in the
treating physician’s opinion and the claimant’s medical history.
The E/C argued the JCC should have accepted the IME opinions
over that of the authorized provider. The 1 st DCA held that the
JCC’s decision was backed by competent substantial evidence.
The 1 st DCA found the provider’s testimony, when taken as a
whole, is neither unreasonable nor illogical, and has a legally
sufficient foundation.
8. Occupational Diseases
City of Pembroke Pines v. Ortagus, 1D09-6168 (Fla. 1 st
November 2, 2010.
DCA
The claimant is a firefighter and was diagnosed with
hypertension. He was placed on light duty for four days and
then released to return to full duty. Thereafter, his
authorized provider gave him a prescription for medication to
control the hypertension. He requested the E/C pay for the
medication. The E/C denied the request arguing that statute
112.18 only requires the E/C to provide continued medical
treatment when the claimant is totally or partially disabled.
It argued the claimant is no longer totally or partially
disabled because he was released to full duty. The 1 st DCA held
that once compensability is established, nothing in section 440
conditions the receipt of medical benefits on continued
disability.
9. Counsel Disqualification
Matrix Employee Leasing v FWCIGA/First Commercial Claim Services
1D10-3054 (Fla. 1 st DCA November 2, 2010)
The issue is whether the JCC has jurisdiction to rule on a
Motion to Disqualify Counsel. The First DCA held that because
the JCC is empowered to do all things conformable with law
pursuant to Section 440.33 (1), the JCC has jurisdiction to
determine whether rules regulating the Florida Bar 4-1.9 and 4-
1.10 require the disqualification of a counsel.