Kelley Kronenberg - In the Know – Workers’ Compensation October 2021 Edition

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IN THE

OCTOBER 2021

NOW

WORKERS’ COMPENSATION EDITION

IN THIS ISSUE: • Compensability • Authorization of Medical Care • Settlement • Driving Restriction • Misrepresentation • Maximum Medical Improvement


EDITOR’S LETTER

WELCOME Joshua T. Higgins, Esq. Editor, and Business Unit Leader/Partner

Be the change that you wish to see in the world .

–Mahatma Gandhi

When I decided to make a career change from my job as an Assistant State Attorney, prosecuting serious felony cases in Broward County, to the world of workers’ compensation defense, I received more than a few raised eyebrows. In my job as an Assistant State Attorney, I was viewed as someone who truly loved prosecuting and criminal law, and who viewed my role as one that had a true benefit to society. Transitioning to insurance defense work and, more specifically, workers’ compensation defense, did not seem to comport with the viewpoint others had of me. “But you’re representing insurance companies against injured workers!” was a common comment I would get. At the beginning of my transition to workers’ compensation defense, I too wondered whether I was making a difference in this new role. However, over the years of practicing workers’ compensation defense and developing close relationships with employers large and small, insurance

companies, adjusters, agents, and all the other players involved in the realm of workers’ compensation, I do believe that workers’ compensation defense attorneys provide a true benefit to many. As a workers’ compensation defense attorney, it is my job to investigate all angles of a workers’ compensation claim and find ways to mitigate exposure. On its face, this can be viewed as being the “enemy of the worker,” when in actuality, that is not the truth. Ensuring that a claim is properly investigated for acceptance or denial, and the associated attempt to mitigate exposure, has a trickledown effect on employers and the insurance industry as a whole. If exposure on a claim is not properly managed for instance, or a claim is accepted that should not have been, it could affect an employer’s ability to continue to have a workers’ compensation policy, for instance. Data pertaining to claims also have an impact on workers’ compensation premium rates from year-to-year. Like anything else, viewpoint and mentality are of critical importance. With the right attitude, you can be a factor of change that can benefit many, even in the field of workers’ compensation defense.


TABLE OF

CONTENTS COMPENSABILITY Alvarado v. Orange Cty. Bd. of Cty. Commissioners . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 OJCC Case No. 10-014773 (FL.Off.Judge Comp.Cl. July 25, 2011)

AUTHORIZATION OF MEDICAL CARE AMS Staff Leasing v. Arreola . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6-8 976 So. 2d 612 (Fla. 1st DCA 2008)

SETTLEMENT Bucknor v. Oasis Outsourcing, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8-9 OJCC Case No. 19-029331GJJ (FL.Off.Judge Comp.Cl. August 25, 2021)

HAVE AN INJURED EMPLOYEE?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 DRIVING RESTRICTION Hyde v. Florida Hospital – Winter Park . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12 OJCC No. 03-027767 (FL.Off.Judge Comp.Cl. March 11, 2014)

Rodriguez v. Six L’s Packing Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12 OJCC No. 09001128 (FL.Off.Judge Comp.Cl. September 14, 2009)

MISREPRESENTATION Ward v. Santa Rosa Correctional Institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13 OJCC Case No. 20-008087JW (FL.Off.Judge Comp.Cl. September 1, 2021)

Uquillas v. Martin County School District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 OJCC Case No. 20-024781KFO (FL.Off.Judge Comp.Cl. May 3, 2021)

MAXIMUM MEDICAL IMPROVEMENT Williams v. Gonzalez Wholesale Nursery & Supplies, Inc . . . . . . . . . . . . . . . . . . . . . .

15-16

OJCC Case No. 13-009732JW (FL.Off.Judge Comp.Cl. April 29, 2015)

CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19 HELPING YOU STAY AHEAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21 AWARDS AND ACCOLADES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23 FIRM OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25


4 | IN THE

NOW


Alvarado v. Orange Cty. Bd. of Cty. Commissioners OJCC Case No. 10-014773 (FL.Off.Judge Comp.Cl. July 25, 2011)

KK TAKEAWAY: If a Claimant is injured by an ‘Act of God’ that was, by definition, entirely out of the Employer’s control, the injury, as with all other workplace injuries, will still be compensable if it occurred within the course and scope of employment and arose out of employment.

BACKGROUND: On July 25, 2011, JCC W. James Condry of the Orlando District issued a Final Order determining whether an injury caused by a lightning strike would be compensable. By way of background, the Claimant, a senior paving foreman, was responsible for locking a gate every night before he left for the day. The afternoon of the accident, the claimant walked through a light drizzle of rain to get to his car so that he could drive to the gate and lock it. On his way to his car, a bolt of lightning struck near him, causing him to unexpectedly fall to the ground onto both of his knees. Although at first the Claimant believed the pain in his knees would dissipate, after four (4) to five (5) days, the Claimant sought medical treatment, since the discomfort from the fall had gotten much worse. The Employer/Carrier denied the claim in its entirety. At the Final Hearing, the Employer/ Carrier argued that the accident was not compensable because, although it occurred within the course and scope of the Claimant’s employment, it did not arise out of his IN THE

NOW | 5


employment, as the lightning strike was an Act of God.

the employment must be “a contributing

JCC Condry advised that for an accident involving a lightning strike to be compensable, the accident must have occurred in the course of employment and must have arisen out of the claimant’s employment. To have occurred within the course of the claimant’s employment, the accident must have been (i) “within the period of employment at a place where the employee may reasonable be,” and (ii) “while the employee is reasonably fulfilling the duties of his employment or engaged in doing something incidental to it.” For an accident to have arisen out of employment,

JCC Condry found that, not only was the

proximate cause of the injury.” Claimant’s accident within the course and scope of his employment (because he was fulfilling a duty of his employment in a place where it was reasonable for him to be), but also that the Claimant’s employment was the major contributing cause of his accident and injuries. In determining the foregoing, JCC Condry found especially pertinent the fact that there were substantially more trees in the employer’s parking lot than would be typically found “at Publix or at an apartment complex.” Thus, because the presence of tall trees increases the risk of being struck by lightning, the major contributing cause of the lightning strike was the fact that Employer’s parking lot contained a large number of tall trees. Accordingly, JCC Condry found that the Claimant’s accident was occurred within the course and scope of his employment and arose out of his employment, and therefore, was compensable.

AMS Staff Leasing v. Arreola 976 So. 2d 612 (Fla. 1st DCA 2008)

KK TAKEAWAY: When a Claimant moves to a foreign country, the Employer/Carrier is still obligated to furnish medical treatment to the Claimant, so long as the Claimant’s relocation was not motivated by a desire to avoid work or to voluntarily limit their income. 6 | IN THE

NOW


Upon his relocation, the Claimant had

BACKGROUND: In this case, the First DCA determined whether a Claimant was entitled to authorization of an orthopedic physician in Mexico after the Claimant had relocated from Florida to Mexico.

filed a Petition for Benefits, requesting authorization for continued medical care with an orthopedic surgeon in Mexico. However, the Employer/Carrier never provided the requested treatment. At trial, the JCC ordered the Employer/Carrier to authorize

By way of background, the Claimant, an

an orthopedic physician and to “provide the

undocumented

had

claimant with ongoing care that is reasonable,

suffered a compensable accident in Florida

and medically necessary and related to the

when a vehicle hit him in the leg while he

industrial accident.”

was unloading trash bags. After undergoing

On appeal, the Employer/Carrier argued

alien

from

Mexico,

many surgeries for his injuries, the Claimant’s authorized

physician

recommended

that the definition of “physician” within the

yet

workers’ compensation statute does not

another surgery. However, the Claimant never

include physicians who are not licensed under

received the recommended surgery because

the laws of the United States. The First DCA

he had relocated with his family back to

disagreed, finding that Florida law holds that

Mexico.

“an injured worker is not prohibited from IN THE

NOW | 7


moving from his pre-injury Florida residence and receiving treatment outside Florida,” so long as the motive for the relocation was not an improper one. Examples given of proper motivations for a relocation were a desire to be closer to family, desire to take care of a loved one, and financial reasons that did not involve a desire to avoid work and examples of improper motivation for a relocation would be a desire to avoid work or evidence showing a voluntary limitation of income. Accordingly,

the

directed

provide

to

Employer/Carrier continued

was

medical

treatment to the Claimant in Mexico.

Bucknor v. Oasis Outsourcing, Inc OJCC Case No. 19-029331GJJ (FL.Off.Judge Comp.Cl. August 25, 2021)

KK TAKEAWAY: When providing a settlement offer to a Claimant, it is important to either (i) place a time limit on acceptance, or (ii) formally withdraw the offer to ensure that the Claimant will not have the opportunity to accept the offer at a much later date, thereby creating an unwanted, yet enforceable agreement.

BACKGROUND: On May 28, 2020, the Employer/Carrier in this claim offered $50,000 to the Claimant’s dependents (as the Claimant was deceased) to settle the claim and to sign a general release of the Employer.

However, the Claimant’s

dependents rejected this initial offer because they did not wish to sign a general release 8 | IN THE

NOW

of the Employer. Thereafter, the Claimant’s dependents dismissed the outstanding Petition for Benefits, cancelling the Final Hearing. On June 18, 2020, the Employer/Carrier again offered $50,000 to the Claimant’s dependents to settle the claim and to sign a general release of the Employer. On April 8, 2021 (i.e., nearly ten (10) months later), the Claimant’s dependents indicated that they had accepted the June 18, 2020 settlement offer. In response, on May 19, 2021, the Employer/Carrier advised the Claimant’s dependents that the settlement offer had been withdrawn, which was followed with a formal written notice of withdrawal on June 30, 2021. The Claimant’s dependents then filed a Motion to Enforce, which instituted the need for an Evidentiary Hearing. JCC Johnsen of the West Palm Beach District advised that an “acceptance of an offer which


results in an enforceable agreement must be

circumstances that would have implied a

(1) absolute and unconditional, (2) identical

withdrawal of the offer.

with the terms of the offer, and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer.” JCC Johnsen found that there was no time limit for acceptance, or any other conditions associated with the Employer/Carrier’s June

Accordingly, JCC Johnsen found that the Claimant’s dependents had accepted the Employer/Carrier’s June 18, 2020 “exactly as it was proposed.” Further, the Claimant’s dependents had provided an acceptance of

18, 2021 offer. Further, JCC Johnsen found

the offer that was “absolute, unconditional,

that the Employer/Carrier had not withdrawn

and identical to the terms of the offer.”

the offer prior to the Claimant’s dependents’

Thus, the settlement agreement for $50,000

acceptance and there was no change in

was enforced.

IN THE

NOW | 9


HAVE AN INJURED EMPLOYEE? There is More to Consider than Workers’ Compensation. By Adam Kemper, Esq. Partner, Kelley Kronenberg

With the ever-changing dynamics in the workplace,

These are federal laws and serve to supplement

managing a workforce has become increasingly

(but not replace) a state workers’ compensation

more challenging. That is especially the case in 2021

program. FMLA provides certain eligible workers who

as we have dealt with a myriad of COVID-19-related

have a “serious health condition” with the rights to

workplace issues, from layoffs to labor shortages,

take job-protected leave of up to twelve (12) weeks.

remote work to return to the office (or some hybrid),

Employers shouldn’t assume that every workplace

and everything in between.

injury constitutes a “serious health condition,” but

Workplace law and guidance continues to change

also shouldn’t play doctor or in any manner interfere

which means employers are tasked with knowing

with an employee’s request for time off under FMLA.

more information and abiding by the latest pertinent

The

laws and guidance in place. Indeed, one area which

discriminating against employees and applicants

has been crystalized during the pandemic is a greater

who are “qualified individuals with a disability.” For

need for attention towards workplace compliance.

example, an injured employee (who is a qualified

Compliance not only results in fewer workplace

individual with a disability) may have rights under

lawsuits and audits, it can also result in better

the ADA to a reasonable accommodation which

employee retention.

would enable the employee the ability to perform the

In order to have effective compliance, every

essential functions of his or her job.

organization

representatives

Employees also have privacy rights under the ADA

(i.e. HR professional(s) or some C-level executive(s))

to maintain their medical information as private and

who can carefully spot a legal issue which needs to

confidential.

be addressed and rectified with the assistance of

Workers’ compensation attorneys, adjusters and

needs

appropriate

employment law counsel.

ADA

prohibits

covered

employers

from

insurance representatives may not always consider

When it comes to a workplace injury, employers need

these laws or spot these issues for you when

to comply with their requirements under their state’s

evaluating a workers’ compensation claim. Thus, every

workers’ compensation program, but also consider

organization should have a representative who has (at

what other laws may be implicated.

the very least) a basic understanding of these laws,

Indeed, there are at least two additional workplace

the interplay between them, and the wherewithal to

laws to consider when an employer has an injured

know when it is time to pick up the phone and consult

employee and that is the Americans with Disabilities

with employment counsel in order to evaluate how to

Act (ADA), the Family Medical Leave Act (FMLA).

apply these laws under the circumstances.

For a consultation on employment law, please contact Adam Kemper at: akemper@kklaw.com or 754.243.7311


BACKGROUND:

Hyde v. Florida Hospital – Winter Park & Rodriguez v. Six L’s Packing Company

In Hyde v. Florida Hospital – Winter Park, the Claimant, a nurse technician, injured her lower back when she attempted to turn a patient.

OJCC No. 03-027767 (FL.Off.Judge Comp.Cl.

The Claimant’s authorized doctor imposed

March 11, 2014) & OJCC No. 09001128 (FL.Off.

various work restrictions, one of which was a

Judge Comp.Cl. September 14, 2009)

no driving restriction. The Employer was made aware of the Claimant’s work restrictions

KK TAKEAWAY:

and offered suitable light duty employment.

If an authorized treating physician gives a

However, the Claimant had to refuse the

Claimant a driving restriction that prevents

light duty employment, as she was restricted

him from coming to work, despite suitable

from driving, and had no alternative means of

employment

transportation.

being

offered

that

would

otherwise comport with the Claimant’s

At the trial, the Employer/Carrier argued

work restrictions, the Employer/Carrier may

that the Claimant had voluntarily limited her

either (i) pay temporary indemnity until the

income by refusing the suitable employment

driving restriction is lifted, or (ii) provide

that was offered to her. JCC Sculco of the

transportation to and from work during the

Orlando District did not agree. He found that

duration of the driving restriction.

the Claimant’s driving restriction imposed by

IN THE

NOW | 11


her authorized physician had caused the loss to come to work was reasonable under the

Ward v. Santa Rosa Correctional Institution

circumstances.

OJCC Case No. 20-008087JW (FL.Off.Judge

in earnings and that the Claimant’s refusal Accordingly,

temporary

partial disability benefits were owed to the Claimant for the period of time in which she had driving restrictions.

However, once

her driving restrictions had been lifted, the Claimant was no longer owed temporary partial disability, as suitable employment was still available to her. In another similar situation in Rodriguez v.

Comp.Cl. September 1, 2021)

KK TAKEAWAY: The Employer/Carrier does not waive its right to present the affirmative defense of misrepresentation if it does not do so within 120 days after discovering such misrepresentation.

Six L’s Packing Company, the Claimant’s

BACKGROUND:

authorized treating physician had imposed a

On September 1, 2021, JCC Walker of the

driving restriction on the Claimant after the Claimant had sustained an eye injury from chemicals being sprayed into his eyes. For a two (2) week period following the accident, the Employer/Carrier furnished transportation for the Claimant to and from work. However, after the two (2) weeks, the Claimant stopped coming to work, because “his supervisor offended him a lot.”

Pensacola District addressed a unique argument presented by the Claimant as a rebuttal to the Employer/Carrier’s misrepresentation defense. The Claimant in this claim, a sergeant at a correctional

institution,

was

injured

when

he answered a distress call from another correctional officer who was trying to subdue a belligerent inmate. While assisting the other officer, the Claimant was kicked in the chest,

At trial, JCC Sturgis of the Fort Myers District

and subsequently complained of chest pain. For

found that “the Claimant did not establish that

his compensable injury, the Employer/Carrier

his failure to continue to report for work was

had previously authorized a pain management

reasonable or justifiable or that the Employer

physician.

failed to accommodate his restrictions.”

When the Claimant sought reauthorization of

Further, JCC Sturgis stated that the “Employer was providing transportation to and from work for the Claimant, and Claimant stopped using the transportation for reasons found not be reasonable or justifiable.” Thus, JCC Sturgis concluded that the Claimant was

his pain management physician, the Employer/ Carrier defended the claim by asserting that the Claimant had falsely completed Employee Earnings Reports and had lied to his doctor about his condition. Specifically, the Claimant had denied receiving any income for twelve (12)

not entitled to temporary partial disability

months, despite the fact that he had owned a

benefits.

lawn care business for five (5) to six (6) years, from which he received income. Additionally, surveillance footage showed the Claimant

12 | IN THE

NOW


working at his father-in-law’s tune-up shop, which

compensability – that is, whether the accident

not only showed that the Claimant was receiving

arose out of and within the course and scope of the

additional income from working at the shop, but

Claimant’s employment – within 120 days after

also that his complaints of constant chest pain

the initial provision of benefits. Analogizing the

to his authorized physician were embellished to

Employer/Carrier’s misrepresentation defense

enhance the validity of his case.

to a major contributing cause defense, JCC

In light of the foregoing, JCC Walker found that

Walker explained that an untimely denial does

the Claimant had misrepresented his earnings and his physical limitations in order to receive

not result in a waiver of the Employer/Carrier’s “right to contest that the workplace injury is

workers’ compensation benefits. The Claimant

the major contributing cause of the condition

attempted to rebut this finding with a unique

for which treatment is sought.” Likewise, the

argument that the 120-day rule (or § 440.20(4),

Employer/Carrier is not estopped from asserting

Fla. Stat.) should apply to the Employer/Carrier’s

a misrepresentation defense, even though it did

misrepresentation defense. Specifically, the

not do so within 120 days of discovering such

Claimant argued that the Employer/Carrier could

information. Accordingly, the Claimant’s 120-

not proceed with its misrepresentation defense

day rule argument failed and his benefits were

because it did not deny the claim within 120 days

suspended.

after the first day of surveillance. However, JCC Walker explained that the 120-day rule applies only when an Employer/Carrier fails to deny IN THE

NOW | 13


BACKGROUND:

Uquillas v. Martin County School District

On May 3, 2021, JCC Owens of the Port St.

OJCC Case No. 20-024781KFO (FL.Off.Judge Comp.Cl. May 3, 2021).

Lucie District released an opinion rejecting the

Employer/Carrier’s

misrepresentation

defense for the reasons outlined below.

KK TAKEAWAY:

In this claim, the Claimant, who worked as a

In order to successfully assert the defense

mason, was injured in the course and scope

of misrepresentation, it is important that

of his employment when a crowbar hit him

the medical records include the alleged

in the head.

statements made by the Claimant to their

the

treating physician, rather than relying solely

headaches, visual disturbances, neck pain,

on the physician’s testimony.

Further,

inconsistencies between surveillance footage and a Claimant’s pain complaints may not necessarily be enough to assert this defense either.

Subsequent to the accident,

Claimant

complained

of

dizziness,

and bilateral arm and hand pain. In response to the Claimant’s request for indemnity benefits, the Employer/Carrier asserted the misrepresentation defense on the basis that statements the Claimant made regarding his pain during an examination with his authorized orthopedic spine surgeon, Dr. Emily Putney, were inconsistent with surveillance demonstrating the Claimant engaging in certain activities. Specifically,

surveillance

footage,

taken

between October 29, 2020 and November 27, 2020, showed the Claimant walking a dog, driving, painting a friend’s house, and helping a child ride a bike. Most notably, while painting the friend’s house, the Claimant was recorded using a brush and roller and occasionally using a ladder.

The painting footage was

taken the morning of November 3, 2020, which coincidentally, was the same day as the Claimant’s afternoon appointment with Dr. Putney. In her deposition, Dr. Putney testified that during the November 3, 2020 appointment, the Claimant complained of “severe” pain. However, JCC Owens did not find any mention 14 | IN THE

NOW


of the Claimant rating his pain as severe in visit, so he rejected Dr. Putney’s testimony.

Williams v. Gonzalez Wholesale Nursery & Supplies, Inc.

Further, JCC Owens noted that the Claimant

OJCC Case No. 13-009732JW (FL.Off.Judge

had rated his pain as a six (6) out of ten (10),

Comp.Cl. April 29, 2015)

the office notes from the November 3, 2020

which JCC Owens believed to be more in line with a complaint of moderate or average pain.

KK TAKEAWAY:

Accordingly, the Employer/Carrier’s assertion

For a physician to place a Claimant at MMI,

that the Claimant had not been in severe pain

there must be a “clear, explicit expression

when he said that he was failed, as there was

of the physician in his medical records or his

nothing in the medical records indicating the

testimony” as to the Claimant’s MMI status,

Claimant had rated his pain as severe, and Dr.

with a doctor’s recommendation of medical

Putney’s testimony alone was not enough to

treatment deemed likely to improve the

provide support for this assertion.

Claimant’s condition considered to be a clear

With respect to the surveillance footage, JCC Owens determined that a claimant may actually be in pain even if they are engaged in activity that would otherwise by unreasonable in light of their subjective pain complaints, as “not everybody that is in pain shows that they are in pain.” Thus, the surveillance footage showing the Claimant painting a house while standing on a ladder was “not inconsistent with a determination that the claimant was in pain,” because the Claimant’s “lack of visible discomfort does not mean he was not in discomfort.” To further explain the discrepancy between the Claimant’s activity and his subjective pain complaints, JCC Owens found that the Claimant’s pain could have increased between the time he

indication that the Claimant is not at MMI.

BACKGROUND: On April 29, 2015, JCC Winn of the Pensacola District issued a Final Compensation Order determining whether the Claimant’s MMI status had been rescinded by virtue of a doctor’s recommendation for a particular type of treatment. After nearly five years of treatment since the Claimant’s industrial accident, on July 17, 2013, the Claimant’s surgeon, Dr. Schmitz, placed the Claimant at MMI with an 11% Permanent Impairment Rating and light duty work restrictions. Dr. Schmitz also indicated that the Claimant may require a spinal cord stimulator at some point in the future.

was painting the house and the time of his

After the Claimant had been placed at MMI,

doctor’s appointment, as Dr. Putney testified

the Claimant’s pain management physician,

that the Claimant’s pain could likely increase

Dr. Pauli, again discussed the possibility of the

with physical activity.

Claimant undergoing a trial with a spinal cord stimulator.

Thus, on February 17, 2014, the

Claimant returned to Dr. Schmitz, who agreed that the trial was appropriate. The Claimant’s IN THE

NOW | 15


trial was conducted from November 18, 2014 through November 21, 2014. However, the Claimant ultimately decided he would rather receive physical therapy and injections than continue with the implant. At his hearing, the Claimant argued that he was entitled to TTD/TPD benefits from February 17, 2014 (i.e., the date Dr. Schmitz agreed the spinal cord stimulator trial was appropriate) through November 21, 2014 (i.e., the date the Claimant decided he did not wish to proceed with the spinal cord stimulator), on the basis that he was no longer at MMI once Dr. Schmitz had approved the spinal cord stimulator trial. The Employer/Carrier argued that the original MMI date of July 17, 2013 was not affected by Dr. Schmitz’ recommendation of the spinal cord stimulator, as such treatment was only palliative in nature and would not result in any improvement to the Claimant’s underlying injury. JCC Winn disagreed with the Employer/Carrier, finding that the statutory definition of MMI 16 | IN THE

NOW

does not only encompass treatment that may result in ‘improvement’ to a claimant’s injury, but also encompasses “treatment which results or aids in ‘recovery from’ an injury,” which may include treatment that decreases pain, thereby increasing functionality. While JCC Winn contended that the question of MMI is not subject to the determination of a JCC, but rather, must be “based upon a clear, explicit expression of the physician in his medical records or his testimony,” the JCC also held that Dr. Schmitz’ approval of the spinal cord stimulator on February 17, 2014 marked the day the Claimant ceased to be at MMI until the stimulator trial had concluded, despite no explicit indication by Dr. Schmitz regarding the Claimant’s MMI status. Accordingly, the Claimant’s request for temporary partial disability benefits from February 17, 2014 through November 21, 2014 was granted.


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, IN THE

NOW | 17


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.

Adam D. Kemper, Esq. Partner Email Adam Kemper

where he regularly counseled with companies on labor and employment law issues and litigated numerous cases from inception to trial. Adam prides himself on utilizing mindfulness and emotional intelligence in helping companies and human resources representatives navigate through challenging workplace scenarios.

Adam Kemper is a Partner and Business Unit Leader

Adam received his Bachelor of Arts degree from

focusing his practice on Labor and Employment

Florida State University with a double major in

Law on behalf of employers.

Adam counsels

Political Science and Literature where he was on the

companies of all sizes on a variety of workplace and

Presidential Dean’s List. He then went on to earn

human resources issues including, but not limited

his Juris Doctor degree from Florida International

to, interviewing, hiring, employee discipline and

University College of Law.

discharge, workplace discrimination, harassment,

Adam was an Associate Member of the Florida

retaliation,

whistleblower,

International University Law Review and received

unemployment, medical marijuana compliance,

Book Awards in Products Liability, Employment

restrictive covenants, non-compete agreements,

Discrimination and Florida Law and Procedure.

non-solicitation

non-disclosure

He was also the recipient of The Florida Bar Labor

agreements, separation agreements, workplace

and Employment Law Section Scholarship. Adam

policies and employee handbooks. Adam also

also worked as a Legal Intern for the United States

has extensive experience litigating employment-

Equal

related disputes on behalf of both employees and

Enforcement Division and the United States

employers in court, in arbitration and during various

Attorneys’ Office: Civil Division.

wage

and

hour,

agreements,

administrative proceedings. Prior to joining Kelley Kronenberg, Adam was a Partner at a national full-service Am Law 200 firm 18 | IN THE

NOW

Employment

While in law school,

Opportunity

Commission,


Kirstin Grice, Esq. Associate Attorney Email Kirstin Grice

Kirstin Grice is an Attorney at Kelley Kronenberg

University. She then went on to receive her Juris

where she assists in handling matters related to

Doctor degree, cum laude, from Florida State

Workers’ Compensation Defense.

University College of Law. While attending law

Prior to joining Kelley Kronenberg, Kirstin worked

school, Kirstin was an articles editor on the Florida

as a Senior Associate for a healthcare valuation

State University Law Review and a teaching

firm, where her specific focus was compensation

assistant for a legal writing and research class. She

valuation.

also earned the Distinguished Pro Bono Service

Kirstin received her Bachelor of Science degree

Award, was a Florida Bar Scholarship recipient, and

in Business Administration from Florida State

was on the Dean’s List for 3 semesters.

Brandon T. Haas, Esq. Associate Attorney Email Brandon Haas

Brandon Haas is an Attorney at Kelley Kronenberg

Brandon received his Bachelor of Science degree

where he assists in handling matters related to

from the University of Central Florida and went on

Workers’ Compensation.

to earn his Juris Doctor degree, summa cum laude,

Brandon Haas is an Attorney in the firm’s Fort Lauderdale office where he assists in handling matters related to Workers’ Compensation.

from Nova Southeastern University Shepard Broad College of Law where he regularly made the Dean’s List and was both a Junior Associate and Executive Editor for Nova Law Review. While in law school,

Prior to joining the firm, he gained experience in

he was a Legal Intern for the Broward County

Insurance Defense Litigation while working as a

Environmental and Consumer Protection Division

Law Clerk for a boutique Fort Lauderdale firm.

and served as a Teaching Assistant.

IN THE

NOW | 19


HELPING YOU

STAY AHEAD BLOGS 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 […] CLICK TO READ MORE

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

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

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

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

20 | IN THE

NOW


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

NOW | 21


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”

22 | 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 | 23


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

10360 W. State Road 84 Fort Lauderdale, FL 33324 Phone: (954) 370-9970

10245 Centurion Parkway N, Suite 300 Jacksonville, FL 32256 Phone: (954) 370-9970

MIAMI

MIAMI LAKES

15100 NW 67th Avenue, Suite 204 Miami Lakes, FL 33014 Phone: (305) 826-7260

NAPLES

1111 Brickell Avenue, Suite 1900 Miami, FL 33131 Phone: (305) 503-0850

NEW ORLEANS

ORLANDO

TALLAHASSEE

150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 Phone: (312) 216-8828

20 North Orange Avenue, Suite 1207 Orlando, FL 32801 Phone: (407) 648-9450

1112 Riverside Drive Daytona Beach, FL 32117 Phone: (754) 888-5437

6267 Old Water Road, Suite 202 Tallahassee, FL 32312 Phone: (850) 577-1301

1421 Pine Ridge Road, Unit 120 Naples, FL 34103 Phone: (954) 370-9970

TAMPA

1511 North Westshore Blvd., Suite 400 Tampa, FL 33607 Phone: (813) 223-1697

201 St. Charles Ave, Suite 2500 New Orleans, LA 70170 Phone: (732) 547-7907

WEST PALM BEACH

1475 Centrepark Blvd., Suite 275 West Palm Beach, FL 33401 Phone: (561) 684-5956

BY APPOINTMENT ONLY ATLANTA

1100 Peachtree Street NE, Suite 200 Atlanta, GA 30309 Phone: (404) 990-4972

NEW JERSEY

51 John F. Kennedy Parkway First Floor West Short Hills, NJ 07078 Phone: (908) 403-8174

NEW YORK CITY

One Liberty Plaza 165 Broadway 23rd Floor, Suite 2374 New York, NY 10006 Phone: (800) 484-4381

IN THE

NOW | 25


WWW.KKLAW.COM | 800.484.4381 C h i c a g o | D a y t o n a | F o r t L a u d e r d a l e | J a c k s o n v i l l e | M i a m i | M i a m i L a k e s N a p l e s | N e w O r l e a n s | O r l a n d o | Ta l l a h a s s e e | Ta m p a | W e s t P a l m B e a c h


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