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

NOVEMBER 2021

IN THE

NOW

WORKERS’ COMPENSATION EDITION

IN THIS ISSUE: • Self-Help • General Release • Depositions • Misconduct • Drug Testing • Medical Opinions • Benefits Request • Attorneys’ Fees

EDITOR’S LETTER

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

Be present in all things and thankful for all things .

– Maya Angelou

Oftentimes as a workers’ compensation

disgruntled with the workers’ compensation

defense attorney, it is easy to handle claims

system, even if there was no mishandling or

with a sense of detachment; that is, viewing the

delay of benefits from the insurance carrier

claims strictly from a legal and factual basis,

and adjuster. Some of the time, this will result

as opposed to with emotion. It is, of course, important to not let emotion dictate actions in any field of law, let alone workers’ compensation.

However, as someone who has handled claims involving amputations, paralysis, traumatic brain injuries, and the other catastrophictype injuries, it becomes apparent that while

in the worker settling a claim to “get out” of the workers’ compensation system, but other times it results in the worker becoming spiteful and keeping a claim open for litigation, simply to be difficult. The takeaway is that while decisions on a claim should not be made

decisions should not be made on a claim with

with emotion, acting with professionalism

emotion, having emotion and empathy can be

and a degree of empathy can go a long way to

effective in handling a claim. I oftentimes hear

satisfying a worker and allowing for an easier

from claimant attorneys that their clients are

and less arduous resolution of a claim.

TABLE OF CONTENTS SELF-HELP Aguilar v. Gonzalez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6 OJCC Case No. 20-024245 (FL.Off.Judge Comp.Cl. October 6, 2021)

GENERAL RELEASE Patco Transport, Inc. v. Estupinan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6-8 917 So. 2d 922 (Fla. 1st DCA 2005)

DEPOSITIONS Gil v. Shell Lumber & Hardware, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8-9 OJCC Case No. 20-017602 (FL.Off.Judge Comp.Cl. October 7, 2021)

MISCONDUCT Gooden v. Central Florida Health Alliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10 OJCC Case No. 11-028997 (FL.Off.Judge Comp.Cl. March 7, 2013)

DRUG TESTING Treiber v. Kirsplash, LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12 OJCC Case No. 21-014764 (FL.Off.Judge Comp.Cl. September 28, 2021

MEDICAL OPINIONS Pinkney v. The School Board of Miami-Dade County . . . . . . . . . . . . . . . . . . . . . . . . 12-14 OJCC Case No. 03-002956ERA (FL.Off.Judge.Comp.Cl. September 22, 2021)

BENEFITS REQUEST Usry v. McDonald’s Restaurant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 OJCC Case No. 86-001602JJL (FL.Off.Judge.Comp.Cl. May 10, 2006)

ATTORNEYS’ FEES Jordan v. Coca-Cola Refreshments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-17 OJCC Case No. 12-016200WRH (FL.Off.Judge.Comp.Cl. September 8, 2021) Protopapas v. Innisbrook Resort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19 OJCC Case No. 17-022964RLY (FL.Off.Judge.Comp.Cl. September 29, 2021)

CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21 HELPING YOU STAY AHEAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23 AWARDS AND ACCOLADES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25 FIRM OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27

4 | IN THE

NOW

Aguilar v. Gonzalez OJCC Case No. 20-024245 (FL.Off.Judge Comp.Cl. October 6, 2021)

KK TAKEAWAY: Even if an Employer provides initial care to a Claimant by paying for treatment, if the Employer fails to continue to provide treatment or fails to advise the initial treating provider that the accident was work-related, the Claimant may request payment of medical bills under the self-help provision of the workers’ compensation statute.

BACKGROUND: By way of background, the Claimant in this case fell off a roof in the course and scope of his employment, sustaining injuries to his left arm, back, neck, head, and ankle.

The Claimant’s supervisor was informed by another employee that the Claimant had fallen.

The supervisor took the Claimant

home and gave the Claimant some pain medication. Later, the supervisor took the Claimant to a “healer” or masseuse. When that did not help, the supervisor then took the Claimant to Centra Care where the Claimant was referred to a hospital. The supervisor took the Claimant to Advent Health and before abandoning him there, instructed the Claimant to tell the hospital he was injured at home rather than at work (however, the Claimant ultimately told the hospital that this was a work injury).

The

Claimant

underwent

surgery

and

the doctor explained that his injury was devastating and may result in arthritis. Upon his release from Advent Health, the Claimant IN THE

NOW | 5

attempted to reach the supervisor and the

Thus, JCC Sojourner advised that it was

supervisor’s brother, but to no avail.

incumbent upon the supervisor to advise

The Claimant then relocated to Georgia to live

Advent Health that the Claimant’s injury

with his sister. While he was there, he testified that he did not attempt to call the supervisor, because it was clear the supervisor did not care about him. He sought treatment at the North Georgia Spine Center and the Barbour Orthopedic Clinic. Thereafter, the Carrier received notice of the injury when the Claimant’s attorney filed her appearance.

Then, the Carrier authorized care in Georgia for the Claimant at the Gwinnett Clinic and paid for the Claimant’s treatment at Advent

was work-related and provide the hospital with contact information for the employer.

However, because the supervisor abandoned the Claimant and continued to ignore the Claimant’s calls following the Claimant’s discharge, the Claimant was forced to seek care with the North Georgia Spine Center and with Dr. Barbour. Accordingly, JCC Sojourner ordered the Employer/Carrier to pay for the Claimant’s treatment at the North Georgia Spine Center and Barbour Orthopedic Clinic.

Health.

The Claimant underwent an IME, who opined that the care provided to the Claimant at the North Georgia Spine Center was reasonable

Patco Transport, Inc. v. Estupinan

and

917 So. 2d 922 (Fla. 1st DCA 2005)

medically

necessary.

Accordingly,

the Claimant requested payment for his treatment at the North Georgia Spine Center

KK TAKEAWAY:

under the self-help provision of the workers’

While a general release may estop a Claimant

compensation statute, § 440.13, Fla. Stat. The

from bringing a workers’ compensation claim

Employer/Carrier argued that the Claimant

against the Employer, the Claimant must have

was not entitled to recover these payments,

been represented by counsel at the time of

as the Employer/Carrier had provided initial

the execution of the general release, or the

treatment to the Claimant by paying for the

JCC must find that the general release was

charges incurred at Advent Health.

within the best interests of the Claimant.

JCC

Sojourner explained that this was simply another way of saying “despite the employer

BACKGROUND:

abandoning the claimant at the hospital with

In Patco, the Claimant had been injured in an

instructions not to report the injury as work

automobile accident and subsequently filed a

related, the E/C can defeat the claim for

civil negligence action against the Employer.

medical treatment by retroactively paying

The Claimant and the Employer settled the

for the hospital care.” She went on to advise

civil suit, and the Claimant signed a “General

that § 440.13 “clearly states that the self-help

Release With Indemnification.” Nevertheless,

provision may be utilized when the ‘employer’

the Claimant thereafter filed a Petition for

fails to provide initial care and treatment.”

Benefits for the same accident and argued

6 | IN THE

NOW

that the general release did not prevent him

However, it should be noted that while the First

from doing so.

DCA has found that a general release – even for

The First DCA disagreed and found that “the

a claim unrelated to workers’ compensation

parties were entitled to settle the workers’

– will bar a workers’ compensation claim,

compensation claims, and execution of the

the First DCA has emphasized in cases

general release ‘in exchange for a lump-

subsequent to Patco that the Claimant must

sum payment’ accomplished that result.”

either (i) be represented by counsel at the

Furthermore, the First DCA found that a general

time of the execution of the general release

release will bar a workers’ compensation claim

or (ii) submit the agreement to the JCC to

when the “general release is broad enough to

determine whether it is in the best interests

cover petitions for workers’ compensation

of the Claimant pursuant to §§ 440.20(11)(c)

benefits,” and the release refers to “full

and 440.20(11)(b), Fla. Stat.

settlement and discharge of all claims which

Specifically, in Brewer v. Laborfinders of

are, or might have been, the subject matter of

Tampa, 944 So. 2d 1102, the First DCA held

the Complaint.”

that a JCC must determine whether a Claimant

IN THE

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was represented by counsel when he entered into the settlement agreement, even though the JCC does not need to inquire as to whether the Claimant took advantage of counsel’s representation. Additionally, in Risco USA Corp v. Alexander, 91 So. 3d 870, the First DCA pointed out that “because Claimant was represented by counsel, and the plain language of the release indicates it applied to Claimant’s employment relationship with the Employer, it was not necessary for the agreement to be submitted to the JCC for it to be a settlement of Claimant’s workers’ compensation claim” (emphasis added).

Michael Langone, telephonically with a notary public who had attempted to administer the oath via telephone. The Employer/Carrier

Gil v. Shell Lumber & Hardware, Inc. OJCC Case No. 20-017602 (FL.Off.Judge Comp.Cl. October 7, 2021)

KK TAKEAWAY: When taking the telephonic deposition of a

immediately objected to the notary public’s efforts to administer the oath via telephone.

After requesting certain benefits including temporary indemnity, authorization of an orthopedist, and follow-up with his authorized treating provider, the Claimant filed a Notice

witness during the COVID-19 pandemic, it is

of Conflict, asserting that the opinions of

important to ensure that both parties stipulate

the Claimant’s IME, Dr. Michael Langone,

to the oath being administered telephonically.

and the Employer/Carrier’s IME, Dr. Rafael

Otherwise, the oath may be administered via

Fernandez, were in conflict. To that end,

an audio-visual platform in accordance with

the Claimant requested the appointment

the Florida Supreme Court’s administrate

of an EMA to address the pending issues.

order for emergency procedures.

The

BACKGROUND:

Employer/Carrier

again

objected,

arguing that the deposition transcript of the Claimant’s IME, Dr. Michael Langone, along

On October 7, 2021, JCC Havers of the Miami

with his corresponding IME report, were not

District issued an opinion that examined the

admissible because the oath had not been

requirements for administering oaths during

properly administered to him.

the COVID-19 pandemic.

While

By way of background, the Claimant had

provides

attempted to take the deposition of his IME, Dr.

depositions “shall be administered in the

8 | IN THE

NOW

the

Florida

that

the

Administrative oath

for

Code

telephonic

physical presence of the witness by a notary

benefits shall continue to be paid during the

public or other person authorized by law to

continuance of disability unless the Claimant

administer oaths,” the Florida Supreme Court

was

relaxed this rule in the wake of the COVID-19

the statute, the definition of “misconduct”

pandemic via an administrative order, instead

encompasses (a) conduct evidencing such

requiring that “Notaries and other persons

willful or wanton disregard of an employer’s

qualified to administer an oath in the State

interest as is found in deliberate violation or

of Florida may swear a witness remotely by

disregard of standards of behavior which

audio-video communication technology from

the employer has the right to expect of the

a location within the State of Florida, provided

employee; or (b) carelessness or negligence

they can positively identify the witness.”

of such a degree or recurrence as to manifest

Despite the less stringent requirements of the new rule, JCC Havers found that the oath of Dr. Langone was not properly administered in accordance with the Florida Supreme Court’s administrative order, because the

terminated

for

misconduct.

Under

culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer. § 440.02(18), Fla. Stat.

oath was not administered via audio-visual

In Gooden, JCC Sculco examined a scenario in

technology, and the parties did not stipulate to

which the Claimant had been terminated for

the administration of the oath telephonically.

Accordingly,

the

Employer/Carrier’s

objections to Dr. Langone’s statements and his IME report were sustained.

“theft of time” subsequent to her industrial accident. By way of background, the Claimant was a designated timekeeper for employees of the ER. When employees would forget to bring their badge to work, they would report their ‘time in’ and ‘time out’ to the Claimant, who would then record it manually. As the

Gooden v. Central Florida Health Alliance

Claimant was a timekeeper herself, she was very aware of this process. However, there were several instances where the Claimant

OJCC Case No. 11-028997

would forget to bring her badge and then

(FL.Off.Judge Comp.Cl. March 7, 2013)

report her time to someone in the accounting

KK TAKEAWAY:

department instead of to the Claimant’s designated timekeeper, which was a violation

Termination for time theft may preclude

of the hospital’s policy. Prior to the accident,

a Claimant from entitlement to indemnity

the Claimant was counseled about the

benefits, as “time theft” is considered to be

violation of this policy and was advised that

misconduct.

further violations would result in termination.

BACKGROUND: Under § 440.15(4)(e), Fla. Stat., indemnity

When the violations continued subsequent to the accident, the Claimant’s supervisors commenced an investigation of the Claimant IN THE

NOW | 9

and discovered that security footage showing

an employee knows or should know that

the times the Claimant actually arrived and

such conduct is a violation of her duties and

departed from the hospital did not reconcile

obligations, a single act of dishonesty is

with the times the Claimant had given to

sufficient for dismissal and denial of benefits.”

the employee in accounting.

Thus, it was

Thus, he found that, while the Claimant

discovered that the Claimant was purposefully

testified that she did not intentionally

violating the policy as far as to whom she

misrepresent her time, it was more likely that

would report her time so that she could conceal her actual arrival and departure times.

This resulted in approximately 76 minutes of stolen time across a two-week period.

JCC Sculco explained that in determining what is and is not misconduct, case law has historically distinguished between “negligent violations of company policies and acts of intentional dishonesty.”

Citing to the First

DCA in Sauerland v. Florida Unemployment Appeals Com’n, 923 So. 2d 1240 (Fla. 1st DCA 2006), JCC Sculco advised that “because 10 | IN THE

NOW

she had intentionally misrepresented her time, especially in light of the total number of minutes accrued as a result of her entry errors. Accordingly, the Claimant’s requests for temporary partial disability benefits were denied and dismissed with prejudice due to her termination for misconduct.

cartridge and one for a marijuana cigarette.

Although these marijuana containers were

Treiber v. Kirsplash, LLC

prescribed to the Claimant, a vape pen was also

OJCC Case No. 21-014764

found on the floorboard inside the cab of the

(FL.Off.Judge Comp.Cl. September 28, 2021)

pick-up truck.

KK TAKEAWAY:

Although the Employer did not have a drug free

Even when an Employer does not have an official drugfree workplace policy, an Employer may still submit a Claimant for drug testing following a work-related accident when there is reasonable suspicion that the Claimant was under the influence of drugs.

Further, if the Claimant refuses to submit to drug testing, the Claimant’s refusal creates a rebuttable presumption that the injury was occasioned primarily by the influence of drugs, absent clear and convincing evidence to the contrary.

workplace policy, it was the Employer’s policy to immediately drug test all employees at a specific clinic following a work-related accident.

Additionally, JCC Stanton advised that pursuant to § 440.09(7)(a), even when an employer does not have a drug free workplace policy, the employer may still “require an employee to submit to a drug test following a work accident based upon reasonable suspicion.”

However,

here, because the Claimant was rushed to the hospital, the drug test could not be performed.

Thus, the Employer/Carrier had “done everything possible to obtain release of the blood sample

BACKGROUND:

from the hospital for drug testing, but to no avail.”

In this case, the Claimant, a pool technician,

At trial, the Employer/Carrier argued that the

was injured in the course and scope of his

Claimant’s not clocking in or out of his job, his

employment when he got into a motor vehicle

bizarre texts to the group chat, and the evidence

accident on I-75.

found inside his truck were sufficient for

Immediately following the

accident, the Claimant was transported to the hospital where he was treated for his injuries.

The

Claimant’s

supervisor

reported

that

the Claimant had sent argumentative and confrontational texts into a company group chat immediately preceding the accident that were very much out of character for the Claimant.

Additionally, the Claimant had not clocked in or clocked out for a particular job at a commercial location. The supervisor also reported that when he took photographs of the Claimant’s damaged truck following the accident, the photographs revealed two (2) empty prescription medical marijuana containers – one for a marijuana IN THE

NOW | 11

reasonable suspicion of drug use. JCC Stanton

back injury. However, he first considered the

agreed. Although the Claimant only requested

employer/carrier’s Motion to Appoint an EMA,

a ruling on the Employer’s reasonable suspicion

filed six (6) days prior to the September 20,

of drug use, JCC Stanton further explained that

2021 Final Hearing.

if the Claimant refused to submit to a drug test, under § 440.07(c), the Claimant’s refusal would create a rebuttable presumption that the injury was occasioned primarily by the influence of drugs, absent clear and convincing evidence to the contrary. Accordingly, JCC Stanton entered an Order requiring the hospital to release the blood samples for drug testing.

The alleged disagreement was between the medical opinions of authorized psychiatrist Dr. Alonso and Claimant’s psychiatric IME Dr. Zager. Dr. Alonso initially treated the Claimant on May 11, 2020 and subsequently saw the Claimant in follow-up on June 5, 2020, August 28, 2020, September 25, 2020, and on October 28, 2020. He was aware that the Claimant had a history of seeking psychiatric care with four (4) psychiatrists prior to the

Pinkney v. The School Board of Miami-Dade County OJCC Case No. 03-002956ERA (FL.Off.Judge.Comp.Cl. September 22, 2021)

KK TAKEAWAY: Medical opinions rendered based upon an incomplete medical history do not rise to a level of competent substantial evidence to create an evidentiary conflict in opinion and warrant the appointment of an EMA.

KK TAKEAWAY: A motion for appointment for an EMA is considered timely when a potential conflict in opinion becomes apparent “days before” the motion.

initial visit. However, he did not have any of the narrative reports from theses visits and ultimately opined that the claimant did not need further psychiatric treatment related of the work accident.

Conversely, Claimant IME Dr. Zager examined the claimant on two (2) occasions, most recently on August 9, 2021, and reviewed extensive medical records from the claimant’s past and present psychiatric history. He testified at his September 1, 2021 deposition that

the

Claimant

continued

to

need

psychiatric care due to an adjustment order related to the work accident, as although the Claimant had other stressors and childhood trauma, her primary focus was on her workrelated chronic back pain and how it impeded

BACKGROUND: On September 22, 2021, JCC Almeyda issued

her. Thus, there was a disagreement between the medical opinions.

a Final Compensation Order on the issues of

The Claimant challenged the appointment

whether further psychiatric evaluation and

of an EMA on several grounds, including

care is medically necessary and causally

timeliness.

related to the work accident and resulting

request is found in case law, which indicates

12 | IN THE

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The only deadline for an EMA

that a request should not be “unreasonably

as untimely, and not contrary to a current

delayed once a party is aware of the

medical opinion. In this case, the opinion of

disagreement.” JCC Almeyda reasoned that since the Claimant’s last visit with Dr. Zager was on August 9, 2021, and his deposition was conducted on September 1, 2021, the conflict became apparent just days prior to the Employer/Carrier’s Motion for an EMA and thus, it was not untimely.

Dr. Alonso is from October 2020 and did not consider the Claimant’s current condition, as Dr. Alonso also admitted he did not have any records or knowledge of the claimant’s condition since that visit.

JCC Almeyda then considered whether Dr.

The next challenge over the appointment of an EMA was over the opinion of Dr. Alonso, in which the Claimant took the position that

Alonso’s foundation supports the weight of competent substantial evidence.

He

noted that Dr. Alonso did not have any of the

Dr. Alonso’s opinions were not based upon

Claimant’s prior or current medical records

competent substantial evidence, but rather,

related to her physical or psychiatric condition,

based upon an improper predicate.

JCC

and he was unaware that the claimant had

Almeyda turned to the opinion in Guerra v.

both a physical and psychiatric impairment

C.A. Lindman, where the court discounted

rating, admitting that his original diagnosis

a medical opinion that was over (1) year old

would have been different had he known. Dr. IN THE

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Almeyda reasoned that Dr. Alonso’s opinion was based upon such a flawed and incomplete

Usry v. McDonald’s Restaurant

history that it could not support the weight of

OJCC Case No. 86-001602JJL

competent substantial evidence. Thus, there

(FL.Off.Judge.Comp.Cl. May 10, 2006)

was no acceptable evidentiary conflict of the opinions to warrant the appointment of an

KK TAKEAWAY:

EMA and the Employer/Carrier’s motion was

A simple request for compensability of a body

denied.

part alleged to be injured in a work accident,

JCC Almeyda ultimately accepted the opinions

without further indication of the nature of

of Dr. Zager and ordered the Employer/Carrier

the benefit sought, is not a claim for workers’

to authorize the Claimant to return to Dr.

compensation

Alonso or a replacement for treatment to the

440 and is subject to dismissal for lack of

work-related psychiatric disorder.

specificity.

14 | IN THE

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benefits

under

chapter

BACKGROUND:

that the aforementioned requests should be

On May 10, 2006, JCC Lazzara issued a

dismissed for lack of specificity in that they

Final Compensation Order with regard to benefits sought in a September 27, 2005 Petition for Benefits. This Petition requested,

failed to comply with sections 440.192(2) (h), (i), and (j), by not actually requesting any specific benefits.

among other benefits, compensability of the Claimant’s low back condition, bilateral shoulder condition, recent rib fractures, and need for breast implant repairs. In the Uniform Pretrial Stipulation, the Employer/ Carrier stipulated to compensability of the Claimant’s accident, but did not stipulate to any specific injury or conditions arising from

Jordan v. Coca-Cola Refreshments OJCC Case No. 12-016200WRH (FL.Off.Judge.Comp.Cl. September 8, 2021)

KK TAKEAWAY:

same. However, the adjuster testified at deposition that only the Claimant’s right hip

A JCC has power to dismiss a Claimant’s

was acceptable as a compensable body part,

Counsel’s entitlement to attorney’s fees and

and that medical benefits were provided to

costs due to the sanctionable actions of a

evaluate/treat only the right hip.

Claimant, if the former counsel fails to object

JCC Lazarra stated that the claims raised in the at-issue Petition for Benefits are not a “model of clarity.” He asserted that aside for the

or request to vacate the order within thirty (30) days.

KK TAKEAWAY:

request for “determination and the necessity of the claimant’s breast implant repairs,”

A JCC does not have the power to divest a

the other requests for “determination of the

former claimant attorney’s Claimant-paid lien

compensability” of the low back, bilateral

due to the sanctionable actions of a Claimant.

shoulder, and rib fractures did not claim any specific workers’ compensation benefits

BACKGROUND:

due under chapter 440. Rather, the Claimant

On September 8, 2021, JCC Holley issued

was simply requesting JCC Lazzara render an

an Order Denying Entitlement to Contested

advisory opinion as to whether the conditions

Attorney Fee based upon Claimant’s Verified

were causally related to the industrial accident

Petition for Attorney Fees and Costs.

or compensable hip injury. The nature of the

By way of background, the Claimant filed claims

benefits sought with regard to the alleged

against the Employer/Carrier under this May

conditions were not raised or identified in the

30, 2012 date of accident as well as a second

at issue Petition for Benefits and as such, the

date of accident on July 3, 2012. In litigating

Petition was deemed procedurally defective relative to these issues.

Based upon the foregoing, JCC Lazzara found

those claims, the Claimant failed to appear for four (4) duly noticed depositions, including one (1) pursuant to an order compelling same.

IN THE

NOW | 15

The Claimant also failed to attend a properly noticed Mediation Conference for both dates of accident. Based upon the Claimant’s continued non-appearance, the Employer/ Carrier filed a Motion for Sanctions and for other discovery violations, and an evidentiary hearing on the motion was scheduled for September 24, 2018.

where JCC Holley held that the Counsel for

On the date prior to the hearing, Counsel for Claimant filed a Motion to Withdraw as Counsel with a lien stating that the Claimant would not be attending the Final Hearing and had continuously failed to appear for other

to attorney fees, as thirty (30) days passed

scheduled events despite acknowledgment and agreeance to attend the events.

The Motion to Withdraw was granted on September 13, 2018 and on September 14, 2018, JCC Holley entered an order granting sanctions on September 26, 2018 when the Claimant failed to attend the hearing. The order specifically indicated that “[a]ll pending Petitions for Benefits [were] dismissed with prejudice in both [dates of accident], including any and all reservations on attorney’s fees and costs.” The former Counsel for Claimant did not file any objection or request to vacate the order.

for Claimant is divested of his Claimant

About three (3) years prior to the aforementioned imposition of sanctions, the Claimant was awarded entitlement to attorney fees based upon a July 13, 2012 Petition for Benefits requesting $12.90 in mileage reimbursement. The Claimant field a Notice of Resolution of this issue on October 11, 2012, reserving jurisdiction on attorney fees and costs. On October 1, 2015, the parties attended an evidentiary hearing on the Claimant’s Verified Petition for Fees related to the securing the mileage reimbursement, 16 | IN THE

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Claimant was entitled to an employer/carrier paid attorney fee and reserved jurisdiction on the quantum of the fee.

The Employer/Carrier asserted that the JCC is divested of jurisdiction to adjudicate the Employer/Carrier paid attorney fee claim stemming from the awarding of entitlement without an objection or a vacating of the September 26, 2018 Sanctions Order. JCC Holley specifically noted that this matter does not involve whether the former Counsel attorney paid lien should the case ultimately settle. She found that there was a significant distinction between a lien for a claimant paid attorney fee, which did not have to involve the securing of benefits from filing a Petition for Benefits, versus an Employer/Carrier paid fee stemming from an Employer/Carrier’s failure to provide benefits in a timely manner.

It is well established by law that the lien of a prior attorney is a right held by the attorney, not a Claimant, and under such circumstances, a Claimant’s individual sanctionable actions or inactions would not be able to negate a previously awarded Employer/Carrier fee.

However, case law has established that a JCC order becomes final thirty (30) days after the mailing of such orders to the parties, unless appealed.

Here, the former Counsel for Claimant had notice and an opportunity to review and/or respond to the Employer/Carrier’s Motion for Sanctions, and attend the evidentiary hearing despite no longer representing the claimant at the time. The former attorney was also notified

that the September 26, 2018 Sanctions Order had been entered. However, there were no responses, motions, or objections filed to vacate or amend the Order.

Protopapas v. Innisbrook Resort OJCC Case No. 17-022964RLY (FL.Off.Judge.Comp.Cl. September 29, 2021)

Lastly, Counsel for Claimant argued that a reservation of attorney’s fee should not be reasonably construed as part of a pending Petition for Benefits and thus, the JCC order granting sanctions would not have an effect on same. However, this contention was rejected by the First DCA in Limith v. Lenox on Lake, which ruled that a reservation of fees, even with all other issues resolved, is deemed to be a pending Petition for Benefits.

KK TAKEAWAY:

Based upon the foregoing, JCC Holley denied former Counsel for claimant’s Petition for Attorney Fees and Costs.

A JCC cannot make a determination of a

Although a statutory fee is the starting point in awarding an employer/carrier paid attorney fee, a claimant must still prove that the award of a statutory fee is reasonable based upon the Lee Engineering factors for a fee to be awarded.

KK TAKEAWAY:

reasonable attorney fee award, whether statutory or hourly based, unless the claimant submits proof of the time and labor spent securing the at issue benefits by way relevant time records.

IN THE

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BACKGROUND:

JCC Almeyda began his analysis by citing to

On September 29, 2021, JCC Almeyda issued an Order Regarding a Contested Attorney Fee based upon the Claimant’s Verified Petition for Attorney Fees and Costs, which sought a statutory fee of $108,031.80 for the securing of $715,212.00 in benefits for the Claimant.

There were no issues of entitlement and the sole issue to be determined at the fee hearing was quantum of the fees and costs.

In its verified response, the Employer/Carrier objected to the requested fee as unreasonable and not based upon the actual value of the benefits.

Florida Statute §440.34(1) as it existed at

18 | IN THE

NOW

the time of the November 14, 1989 accident, which established a statutory fee of 25/20/15 percent and further provider that the “Judge of Compensation Claims shall consider [enumerated] factors in each case and may increase or decrease the attorney fees” by considering whether the award of a statutory fee would be reasonable.

These are the

factors laid out in Lee Engineering v. Fellows, and JCC Almeyda properly noted that the application of these factors is mandatory.

Additionally, the First DCA in Alderman v.

Fla. Plastering, indicated that the statutory fee is the starting point of the analysis, and any reduction or increase must be a result of exceptional circumstances.

JCC

Almeyda

analyzed

the

first

Lee

Engineering factor, “the time and labor required, the novelty, and difficulty of the questions involved and the skill requisite properly to conduct the cause.” He reasoned that the benefit secured, home attendant care, was not the average claim, as it involved overcoming a prior adverse opinion denying this benefit by competently rewording a subsequent Petition for Benefits. This was considered to be a positive factor. However, JCC Almeyda fell into a predicament in further consideration of the first factor. He noted that the Claimant never submitted any evidence of the time and labor required to secure the home attendant care, but rather, simply averred that a total of 220 hours were dedicated to the case dating back to the inception of his representation of the claimant, not the

evidence of the time spent securing the at issue benefit, he could not make a determination of whether the requested $108,031.00 statutory fee would be reasonable.

The Claimant rather simply indicated a statutory fee amount (the starting point), which prevented the JCC from analyzing the entirety of the Lee Engineering factors, including the time and labor required.

JCC Almeyda specifically noted that the time and labor required is a “key and critical” element in consideration of a reasonable fee and here there was no evidence of the 220 hours allegedly dedicated to obtaining the at issue benefits. The Claimant was given every opportunity to produce this evidence and prove that the fee sought was reasonable, but all attempts were quashed.

Based upon the foregoing, JCC Almeyda was unable to determine whether the requested statutory fee was reasonable and dismissed the claim for same in the Verified Petition for Attorney Fees and Costs.

filing of the at issue June 1, 2020 Petition for Benefits. This included the time involved in unsuccessfully litigating the aforementioned Petition where home attendant care was first requested.

JCC Almeyda requested that Counsel for Claimant enumerate the number of hours dedicated to the case since the filing of the subject June 1, 2020 Petition, but he could not.

Additionally, the Employer/Carrier, on

multiple occasions, attempted to introduce into evidence of the Claimant’s time during the relevant period, but objections to same were sustained.

As such, JCC Almeyda reasoned that without IN THE

NOW | 19

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,

20 | 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.

Kirstin Grice, Esq.

Brandon T. Haas, Esq.

Associate Attorney

Associate Attorney

Email Kirstin Grice

Email Brandon Haas

Kirstin Grice is an Attorney at Kelley Kronenberg

Brandon Haas is an Attorney at Kelley Kronenberg

where she assists in handling matters related to

where he assists in handling matters related to

Workers’ Compensation Defense.

Workers’ Compensation.

Prior to joining Kelley Kronenberg, Kirstin worked

Brandon Haas is an Attorney in the firm’s Fort

as a Senior Associate for a healthcare valuation

Lauderdale office where he assists in handling

firm, where her specific focus was compensation

matters related to Workers’ Compensation.

valuation.

Prior to joining the firm, he gained experience in

Kirstin received her Bachelor of Science degree

Insurance Defense Litigation while working as a Law

in Business Administration from Florida State

Clerk for a boutique Fort Lauderdale firm.

University. She then went on to receive her Juris

Brandon received his Bachelor of Science degree

Doctor degree, cum laude, from Florida State

from the University of Central Florida and went on

University College of Law. While attending law school,

to earn his Juris Doctor degree, summa cum laude,

Kirstin was an articles editor on the Florida State

from Nova Southeastern University Shepard Broad

University Law Review and a teaching assistant for a legal writing and research class. She also earned the Distinguished Pro Bono Service Award, was a Florida Bar Scholarship recipient, and was on the Dean’s List for 3 semesters.

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, he was a Legal Intern for the Broward County Environmental and Consumer Protection Division and served as a Teaching Assistant.

IN THE

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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

22 | IN THE

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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”

24 | 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 | 25

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

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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

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