IN THE
DECEMBER 2021
NOW
WORKERS’ COMPENSATION EDITION
IN THIS ISSUE: • • • •
Costs Order Pretrial Stipulation Compensability Notice Defense
• Advisory Opinion
EDITOR’S LETTER
WELCOME Joshua T. Higgins, Esq. Editor, and Business Unit Leader/Partner
Work gives you meaning and purpose and life is empty without it.
–Stephen Hawking
Is it just me, or did 2021 fly by? I know, such a
implications each and every day, which invoke
cliché, but it seems as though this year passed
a sense of importance to each day’s work.
by in warp speed. This is certainly in contrast
Sometimes, especially when the workload is
to 2020, which seemed like the longest year
particularly high, the importance of what we do
ever. Without question, 2020 and 2021 were
each and every day can get momentarily lost.
unique and extremely challenging years, both
It’s thus important to occasionally take a step
from a personal and professional standpoint.
back and realize that what we do has meaning
For me, even in the most difficult of times I
and importance and that we should take pride
take comfort in the fact that I have a job I enjoy
in the work we do. This mentality and outlook
that gives me meaning and purpose each day
can help make even the most challenging years
that I come into work. One of the things that I
productive and ultimately enjoyable.
enjoy about my job is that it involves real-world
TABLE OF
CONTENTS COSTS ORDER Gonzalez v. Global Miami Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6 OJCC Case No. 20-018626SMS (FL.Off.Judge Comp.Cl. November 12, 2021)
PRETRIAL STIPULATION Lopez v. Broward County, Permitting/Licensing & Consumer Protection . . . . . . . . . . . . . . .6-7 OJCC Case No. 12-026332DAL (FL.Off. Judge.Comp.Cl. November 8, 2021)
COMPENSABILITY Slater v. Palm Beach County School District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8-9 OJCC Case No. 21-004472TAH (FL.Off. Judge.Comp.Cl. October 27, 2021)
NOTICE DEFENSE Gil v. Shell Lumber & Hardware, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10 OJCC Case No. 20-017602WJH (FL.Off. Judge.Comp.Cl. October 7, 2021)
ADVISORY OPINION Joseph v. McDonald’s Lake Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11 OJCC Case No. 20-005860GJJ (FL.Off. Judge.Comp.Cl. October 18, 2021)
CONTRIBUTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13 HELPING YOU STAY AHEAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 AWARDS AND ACCOLADES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17 FIRM OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19
4 | IN THE
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Gonzalez v. Global Miami Joint Venture OJCC Case No. 20-018626SMS (FL.Off.Judge Comp.Cl. November 12, 2021)
KK TAKEAWAY: Failure to comply with a costs order entered pursuant to an Employer/Carrier being a prevailing party does not mandate dismissal of a subsequently filed Petition for Benefits. Rather, dismissal will only be appropriate if the failure to comply with the costs order is “willful, deliberate, or contumacious
BACKGROUND: On August 17, 2020, the Claimant filed a Petition for Benefits. The Petition for Benefits was subsequently dismissed on January 27, 2021. A new Petition for Benefits was then filed on June 22, 2021. On June 28, 2021, the Employer/Carrier filed a Verified Motion to Tax Costs. Ultimately, on July 21, 2021, an Agreed Order was entered indicating that the Claimant shall pay the Employer/Carrier $886.20 in taxable costs as the prevailing party, as a result of the voluntary dismissal. On September 1, 2021, the Employer/ Carrier filed a Motion to Dismiss for Failure to Comply.
In short, the Employer/Carrier
sought a dismissal of the June 22, 2021 Petition for Benefits due to the Claimant’s failure to comply with the July 21, 2021 costs order. JCC Medina-Shore denied this Motion. In her Order, JCC Medina-Shore went through the Claimant’s financial situation and found that although she was aware of the agreed order mandating that she pay taxable costs of $886.20, she was financially unable to do IN THE
NOW | 5
so. JCC Medina-Shore, in denying the Motion,
this time assigned a 2% PIR and assigned no
made a finding that the Claimant’s violation of
permanent work restrictions. For the 2012
the costs order was “not willful, deliberate, or
work accident, the Claimant also treated with
contumacious,” and that pursuant to Jones v.
orthopedic surgeon Dr. Levi, who performed
Royalty Foods, Inc., 82 So.3d 1162, 1164 (Fla.
an ACDF surgery in 2013, but JCC Lewis did
1st DCA 2012) and F.S. 440.24(4), dismissal
not find that the medical reports reflected
of the Petition for Benefits would not be
the Claimant being placed at MMI by Dr. Levi,
appropriate in these circumstances
nor was PIR or work status addressed. The Claimant also treated with physiatrist Dr. Wolff, who assigned 25 pound work restrictions. For the Claimant’s 2018 work accident, the Claimant saw orthopedic spine specialist
Lopez v. Broward County, Permitting/Licensing & Consumer Protection
Dr. Steiner for his lumbar and thoracic spine, but the reports did not address work status. The Claimant also saw pain management physician Dr. Hobbs, who recommended
OJCC Case No. 12-026332DAL
injections but the Claimant declined.
(FL.Off. Judge.Comp.Cl. November 8, 2021)
Claimant then started to treat with orthopedic
KK TAKEAWAY:
The
spine specialist Dr. Brown, who placed the Claimant at MMI on October 15, 2020 and
A Judge of Compensation Claims has the
assigned a 6% PIR, with 20 pound restrictions
authority to reject stipulations made by
on carrying and lifting.
parties on a Pretrial Stipulation if it is found that the stipulation is refuted by competent substantial evidence.
BACKGROUND: The Claimant sought PTD benefits from October 15, 2020 to present and continuing, which the Employer/Carrier contested on numerous grounds, in connection with two work accidents, one in 2012 and one in 2018.
JCC Lewis found that for the 2012
work accident, the Claimant was placed at MMI by Dr. Meli for the right shoulder on March 7, 2013 and assigned a 3% PIR, with 50 pound restrictions. He then found that
The Employer/Carrier obtained an IME with Dr. Donshik, who fond that the Claimant was capable of performing light-duty work. The Claimant obtained an IME with Dr. Ellowitz, who found that the Claimant was unable to work in any capacity due to the complex nature of his multiple conditions. JCC Lewis found that the Claimant’s work restrictions from his authorized physicians were not particularly extensive, and would not preclude a return-to-work in at least a sedentary capacity. He also found that the only doctor who concluded that the Claimant could not work in any capacity was the
Dr. Meli again placed the Claimant at MMI
Claimant’s IME, Dr. Ellowitz.
for the right shoulder on August 4, 2014, but
More
6 | IN THE
NOW
importantly,
however,
JCC
Lewis
accepted Dr. Ellowitz’ opinion that the Claimant was not at MMI for his thoracic and lumbar spine injuries, in connection with the 2018 work accident, and thus, it would be premature to find the Claimant to be PTD. JCC Lewis noted that although the Employer/ Carrier listed various MMI dates on the Pretrial Stipulation, and although the Claimant argued that based upon the listing of these MMI dates the Employer/Carrier had stipulated that the Claimant was at overall MMI, he was not required to accept the apparent stipulations on the Pretrial Stipulation. JCC
Lewis indicated that he has the discretion to reject stipulations set forth in a Pretrial Stipulation if the stipulations are refuted by competent substantial evidence. As he found the opinions of Dr. Ellowitz pertaining to MMI to be competent substantial evidence, JCC Lewis found the Claimant was not at overall MMI and PTD benefits were denied as premature.
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Slater v. Palm Beach County School District OJCC Case No. 21-004472TAH (FL.Off. Judge.Comp.Cl. October 27, 2021)
KK TAKEAWAY: If “competing causes” exist for a Claimant’s accident, then there is a viable defense that
BACKGROUND: The Claimant alleged a compensable accident from falling down some stairs at work, resulting in injuries to her knee and ankle. The Employer/Carrier denied the claim, asserting that while the Claimant was in the “course and scope of employment,” the accident did not “arise out of employment.” The Claimant was unable to definitively explain what caused her
a compensable accident did not occur under
to become dizzy and fall down the stairs. She
the “arising out of” standard for causation,
had reported that she becomes dizzy during
if it cannot be shown that the work-related
her menstrual cycle, and IME Dr. Jose Zuniga,
cause(s) are 51% or greater the cause of the
a neurologist, diagnosed her with vasovagal
accident.
syncope. However, the Claimant also alleged
8 | IN THE
NOW
that she believed she had become dizzy due to the hot conditions in the classroom, and
not simply of the work accident.
she had also acknowledged that she had not
BACKGROUND:
eaten for several hours. JCC Hedler, thus,
On October 7, 2021, JCC Havers issued a Final
found that there were “competing causes” for
Compensation Order with regard to a Petition
the Claimant’s fall, as opposed to it being an
for Benefits filed on March 11, 2021 seeking
unexplained accident. Of importance to JCC
medical benefits.
Hedler was that although it was established
Notice Defense
that there were air conditioning issues in the classroom at some point in time, there was no evidence of this occurring the week of the accident or the day of the accident. JCC Hedler also noted that following the accident, the Claimant did not indicate that the classroom was hot and that the hotness was the cause of her falling; rather, immediately after the accident the Claimant placed the blame on her menstrual cycle. Additionally, Dr. Zuniga testified that the hot classroom, if it did exist, would only be 1/3 the cause of the accident, which JCC Hedler found to mean that major contributing cause of the accident had not been established by the Claimant to be a work-related issue or condition.
The Claimant testified that on June 3, 2019, he was picking boxes up from a table and handing them to his supervisor to be placed in a cart when he lost his footing on a rubber mat and fell backwards landing flat on his back on the mat. He testified that only his back contacted the rubber mat when he fell and no body parts contacted any furnishings in the area as he was falling down. “A couple of minutes” later, he stood up on his own and he felt like he was okay. The Claimant testified that his supervisor witnessed his fall and asked him if he was all right. The Claimant responded by saying something like “yeah, I guess I’m okay.” The Claimant testified shortly after the fall he began feeling pain in his upper back, but he was able to continue working the rest of the day. The pain in his upper back continued for “a number of days” after the accident. He did not tell his supervisor, or anyone else other than
Gil v. Shell Lumber & Hardware, Inc OJCC Case No. 20-017602WJH (FL.Off. Judge.Comp.Cl. October 7, 2021)
KK TAKEAWAY:
his wife, about the pain. He also continued to work his scheduled shifts as usual and did not miss any work due to his fall. It is undisputed that the Claimant had an accident on June 3, 2019, which was
A claimant who fails to advise his or her
witnessed by his supervisor.
employer of a work-related injury within 30
when his supervisor immediately asked him
days after the date of initial manifestation
if he was all right, the Claimant responded
of injuries must prove that the employer had
by saying something like “yeah, I guess I’m
actual knowledge of the specific work injury,
okay.” JCC Havers found that the Claimant IN THE
However,
NOW | 9
Joseph v. McDonald’s Lake Worth OJCC Case No. 20-005860GJJ (FL.Off. Judge.Comp.Cl. October 18, 2021)
KK TAKEAWAY: A request for an alternate IME is seeking an impermissible advisory opinion in the absence of selecting or identifying the alternate IME and proffering evidence related to the alternate IME sought to be admissible at a subsequent hearing.
did not report any injuries from the date of accident to the Employer or Carrier until he filed the initial Petition for Benefits on August 4, 2020. Thus, the accident was not timely reported within 30 days after the date of or initial manifestation the injury, as required by Florida Statute § 440.185(1).
BACKGROUND: On October 18, 2021, JCC Johnsen issued an Order Regarding Claimant’s Renewed Verified Motion for Alternate Independent Medical Examiner and Motion for Continuance. By way of background, the Claimant initially filed a Motion for Alternate IME Examiner on July 21, 2021, asserting that the Claimant underwent an IME of her choosing
The Claimant argued because his supervisor
with Dr. John Baker (on July 6, 2020), but Dr.
witnessed the claimant’s accident, one of
Baker was hospitalized and did not provide the
the exceptions to the rule applies under §
Claimant with an IME report. On August 3, 2021,
440.185(1).
However, JCC Havers rejected
JCC Johnsen issued an Order Denying Claimant’s
this argument, as the Employer’s actual
Motion for Alternate IME Examiner, stating that
knowledge of an injury is required to establish
the Claimant had the ability to obtain another
the first exception, not actual knowledge of
IME of her own, and thus, the claimant’s motion
an accident. The Claimant did not establish
sought an impermissible advisory opinion as to
the first exception in accordance with the
whether the alternate IME’s opinion would be
clear language of the statute, as he did not
admissible at a subsequent hearing. Additionally,
specifically report an injury until the August
that the Claimant had produced insufficient
2020 Petition.
evidence to establish Dr. Baker’s unavailability.
Based upon the foregoing, JCC Havers
On September 15, 2021, the parties submitted
concluded that the Claimant did not timely
a Pretrial Stipulation. The claims listed by
report his injury as required, and he had not
the Claimant in the Pretrial Stipulation were
established any of the exceptions to the
“authorization and provision of a right shoulder
requirement. Thus, the Claimant’s claim was
MRI so that Dr. Baker can complete [the] IME,
barred.
authorization and provision of treatment with
10 | IN THE
NOW
Dr. Baker, and attorney’s fees and costs. Under the section where IME physicians are listed, the Claimant listed “Dr. Baker who is unavailable; new IME to be determined,” with no specific designation of an alternate IME. On October 4, 2021, the Claimant filed the at issue Motions. JCC Johnsen found that the Claimant did not select or identify an alternate IME, but instead, sought an impermissible permission to obtain another IME without selecting or identifying the alternate IME, or even identifying the specialty of the requested IME. Thus, the Claimant’s motion
Although §90.105(1) requires a JCC to determine preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence, JCC Johnsen found the Claimant had neither sought to admit testimony nor opinions from a new IME for consideration as a witness. He concluded that the purpose of the statue is to rule on the admissibility of evidence which has been proffered by a party and here, such evidence has not been proffered of Dr. Baker or an alternate IME.
sought to obtain an impermissible advisory
For the same reasoning, JCC Johnsen also
opinion as to whether she can substitute an
found that the Claimant did not demonstrate circumstances beyond her control to warrant a continuance. Thus, the Claimant’s Renewed Verified Motion for Alternate Independent Medical Examiner and Motion for Continuance were denied.
unspecified physician as her IME, and neither the Courts nor Judges of Compensation Claims have the power to give legal advice or opinions. In rendering his decision, JCC Johnsen rejected the Claimant’s argument that Florida Statue §90.105(1)
placed
the
Claimant’s
motion
outside the scope of an advisory opinion.
IN THE
NOW | 11
MEET THE
CONTRIBUTORS of Kelley Kronenberg designated as the host for the meetings in South Florida, and he is the legal advisor
Joshua T. Higgins, Esq.
to the Safety Alliance for Excellence (SAFE) since its
Editor and Business Unit Leader/Partner
inception. He assists his clients daily in all aspects of
Email Joshua T. Higgins
claims handling, both prior to and after litigation has begun, and has handled complex matters through trial on numerous occasions, with a high percentage of success.
Joshua Higgins is a Business Unit Leader and Partner at Kelley Kronenberg where he focuses his practice on Workers’ Compensation defense. He has previous experience handling employment law matters, OSHA, Police Professional Litigation, Correctional Healthcare, and Civil Rights claims. The team that Joshua leads comprises of nine (9) people (attorneys, paralegals, and legal assistants), which collectively have over 90 years’ experience handling workers’ compensation matters in Florida. Joshua handles workers’ compensation claims for a wide array of industries, for a clientele that ranges from multi-billion companies to small employers. One of the primary industries Joshua handles workers’ compensation claims for is the construction industry. He represents general contractors and subcontractors of all sizes, and is enmeshed in the construction industry of South Florida. He is an active member of the Construction Association of South Florida (CASF), where he has been on the
Joshua is a popular and frequent writer and presenter on various workers’ compensation issues, both in Florida and on a national level. For his success and reputation, he has been named a Florida Super Lawyers Rising star for 2020 and 2021 (bestowed on less than 2.5% of attorneys in Florida), was named a 2020 and 2021 Top Lawyer in workers’ compensation by Fort Lauderdale Illustrated (one of only two defense attorneys on the list), and was named a 2022 Best Lawyers in America: Ones to Watch by U.S. News & World Report. Joshua is also rated AV Preeminent by Martindale-Hubbell, based upon peer reviews, which indicates that he has achieved the highest professional and ethical standards and is the highest rating a lawyer can receive. Prior to joining the firm, Joshua worked as an Assistant State Attorney at the State Attorney’s Office, 17th Judicial Circuit, in both the felony trial unit and county court division. While there, Joshua tried more than 30 bench trials and 22 jury trials, with his
Young Leaders Committee for several years (and
last trial featured on local Fox news.
the firm is the legal advisor to), he is involved in the
During law school at Nova Southeastern University,
Associated General Contractors (AGC), for which he
Joshua served for two years as the Chairperson of
was instrumental in having the Fort Lauderdale office
Administration for the Moot Court Honor Society,
12 | IN THE
NOW
a Staff Member for the Inter-American Center for
Prior to entering law school, Joshua obtained his
Human Rights, and the Secretary for the National
undergraduate degree magna cum laude from the
Security and Law Society. He received a perfect
State University of New York at Buffalo, where he
score from the Chief Justice in the first round of the
was selected for induction into the Phi Beta Kappa
ABA National Appellate Advocacy Competition, and
Society, received English Departmental Honors, and
placed in the top 8 out of more than 125 students in
was listed in Who’s Who Among American College
the Feinrider Moot Court Competition. Further, Joshua
Students. Additionally, Joshua was chosen as a
was one of 40 law students selected nationwide as a
Renaissance Scholar, an award bestowed on less than
summer fellow for the Florida Bar Foundation, which
4% of graduates that year (only 82 students out of a
resulted in him working at Coast to Coast Legal Aid of
class size of more than 2500), for those exhibiting
South Florida doing foreclosure defense for indigent
scholarly excellence in at least two widely disparate
elderly citizens.
areas of study.
Prior to joining the firm, he gained experience in Insurance Defense Litigation while working as a Law Clerk for a boutique Fort Lauderdale firm.
Brandon T. Haas, Esq. Associate Attorney Email Brandon Haas
Brandon received his Bachelor of Science degree from the University of Central Florida and went on to earn his Juris Doctor degree, summa cum laude, from Nova Southeastern University Shepard Broad
Brandon Haas is an Attorney at Kelley Kronenberg
College of Law where he regularly made the Dean’s
where he assists in handling matters related to
List and was both a Junior Associate and Executive
Workers’ Compensation.
Editor for Nova Law Review. While in law school,
Brandon Haas is an Attorney in the firm’s Fort
he was a Legal Intern for the Broward County
Lauderdale office where he assists in handling
Environmental and Consumer Protection Division
matters related to Workers’ Compensation.
and served as a Teaching Assistant.
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HELPING YOU
STAY AHEAD
BLOGS
Hiring Choices Made Out of Desperation May Lead to Debacles Amy Siegel Oran. It is hard to pinpoint exactly why it is so difficult to find good employees these days; […]
Movies Speak to Me in Legalese By: Amy Siegel Oran. We all have our favorite movies, a top-five list of films you’ve seen so many times you […] CLICK TO READ MORE
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Business Workplace Health & Safety Checklist: What Should Employers Expect with New Delta Variant Cases Rising? By: Meg Bentley. As the number of COVID-19 cases declined last spring, Illinois businesses reopened their doors […]
20 Years of Wisdom in 5 Bullets: Tips for Law Graduates By: Amy Siegel Oran. On this day, 20 years ago, I was worrying about law school finals and the upcoming […] CLICK TO READ MORE
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Mental Health in the Workplace – Post Pandemic Panic By: Amy Siegel Oran Florida workers’ compensation law does not cover purely psychological trauma; the emotional condition must be brought […] CLICK TO READ MORE
14 | IN THE
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6 Key Points to Defend, Manage, and Settle Catastrophic Claims By Amy Siegel Oran I recently had the pleasure of presenting on the topic of defending, managing, […] CLICK TO READ MORE
WEBINARS COVID-19 in 2021 Kelley Kronenberg Partners Adam Kemper and Joshua Higgins present COVID-19 in 2021 with Principal Partner/ Chief Financial Officer, Heath Eskalyo as the moderator. The webinar, COVID-19 in 2021, provides updates on the latest applicable workplace guidelines and for practice.
CLICK TO WATCH
PUBLICATIONS Don’t Be A Discovery Dinosaur HR Florida Newswire
Telecommuting Employees and the Potential for Workers’ Compensation Claims
Amy Siegel Oran
HR Florida Newswire
CLICK TO READ MORE
Indira Marin CLICK TO READ MORE
Guest column: Florida’s minimum wage increase raises workers’ compensation cost
What The Telecommuting Trend Could Mean for Florida Workers’ Comp Claims
Tampa Bay Business Journal
Insurance Journal
Amy Siegel Oran
Indira Marin
CLICK TO READ MORE
CLICK TO READ MORE
Yes, employees required to get vaccinated for COVID-19 can file a workers’ compensation claim for vaccine adverse effects
Does Workers’ Comp Cover an Employee’s Reaction to a COVID-19 Vaccine?
Verify
SHRM
Joshua Higgins
Joshua Higgins
CLICK TO READ MORE
CLICK TO READ MORE
IN THE
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AWARDS AND
ACCOLADES FIRM AWARDS Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:
2021
Best Midsize Law Firms To Work For
Ranked amongst the “Largest Law Firms”
Ranked amongst the “Largest Law Firms”
Ranked amongst the “Largest Law Firms”
Ranked amongst the “Largest Law Firms”
Ranked amongst the “Largest Law Firms”
Ranked amongst the “Largest Law Firms”
Ranked amongst the “Largest Law Firms”
Ranked amongst the “Largest Law Firms”
Ranked amongst the “Best Law Firms”
Ranked amongst the “Largest Law Firms”
Named as a “Business of the Year” and “Top 100 Private Companies”
Best Multi-Practice Business Law Firm – USA
2021 “Diversity Team” winner
Ranked amongst the “Largest Law Firms”
16 | IN THE
Fastest-Growing Private Companies in America
NOW
WC ATTORNEY AWARDS
Martindale Hubbell AV Preeminent Rating
Best Lawyers in America: Ones to Watch
Karen M. Gilmartin, Raymond L. Grant, Joshua T. Higgins, Steven L. Scharf, Amy Siegel Oran
Joshua T. Higgins Amy Siegel Oran
Florida Super Lawyers “Rising Stars”
South Florida Legal Guide “Top Lawyers”
Joshua T. Higgins
Amy Siegel Oran Karen Gilmartin
Illinois Super Lawyers “Rising Stars” Julianna Walo Executive Women of the Palm Beaches Foundation Women in Leadership Amy Siegel Oran
Fort Lauderdale Illustrated “Top Lawyer” Joshua T. Higgins
WOMEN IN THE LAW Best Lawyers “Women in the Law”
Girl Scouts of Southeast Florida, Emerald Award, “Risk Taker” Amy Siegel Oran
Amy Siegel Oran IN THE
NOW | 17
A Firm Built on Relationships KELLEY KRONENBERG IS A MULTI-PRACTICE BUSINESS LAW FIRM.
with over
400
Employees
more than
175 Attorneys
the convenience of
12
Locations
Founded in 1980, the firm is one of the fastest-growing law firms in Florida and amongst the largest in the U.S. The firm serves all types and sizes of public and private companies, including small businesses and individuals nationwide.
OUR
OFFICES CHICAGO
NEW YORK NEW JERSEY
ATLANTA JACKSONVILLE DAYTONA ORLANDO
15
WEST PALM BEACH TALLAHASSEE FORT LAUDERDALE
OFFICES
NEW ORLEANS
TAMPA MIAMI LAKES NAPLES
MIAMI
CHICAGO
DAYTONA
FORT LAUDERDALE
JACKSONVILLE
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MIAMI LAKES
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