Jerry M. Hayden - Vernis & Bowling

Jerry M. Hayden, Esq.
Workers' Compensation Managing Attorney
Vernis & Bowling of Miami, P.A. 1680 N.E. 135th Street Miami, FL 33181
Phone: (305) 895-3035
Email: JHayden@Florida-Law.com
Fax: (305) 892-1260
Website: www.national-law.com
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Verdicts and Dispositions

Brian Stone v. Bed, Bath & Beyond and Sedgwick CMS, York Risk Services Group, Avizent
Jerry Hayden (Miami, FL) (Workers’ Compensation)

Primary Issues: Authorization of Medical Care, Major Contributing Cause, Estoppel

Summary: Contending they had only accepted a cervical sprain injury as compensable, the E/C denied continued medical treatment on the grounds the work accident was no longer the MCC of the need for care. The appointed EMA opined claimant’s work injury completely resolved, leaving no impairment and requiring no restrictions. The JCC afforded the EMA opinions the presumption of correctness and DENIED the claim for authorization of continued medical care, attorney’s fees and costs. The judge also rejected the claimant’s estoppel argument related to the cervical condition.
Keston O. Smith v. US Food Services, Inc.
Jerry Hayden and Tony Caula (Miami, FL) (Workers’ Compensation) obtained a Dismissal in the case of Keston O. Smith v. US Food Services, Inc. and Sedgwick CMS. On 8/10/18, the JCC entered a Final Compensation Order denying the Claimant’s request for a one-time change to a provider of his choice. In the Final Compensation Order, the JCC found that the Claimant failed to provide any legal support for the position that he was entitled to a physician of his choice because the E/SA had authorized an alternate occupational clinic in response to a written request for one-time change of providers instead of identifying a physician by name. The Claimant appealed this decision to the First DCA, but the First DCA dismissed the appeal when the Claimant failed to file a docketing statement after being ordered to do so.
Guillermo Medrano v. Sky Chefs, Inc. and Liberty Mutual Insurance Company
Jerry Hayden and Tony Caula (Miami, FL) (Workers’ Compensation) Guillermo Medrano v. Sky Chefs, Inc. and Liberty Mutual Insurance Company. The issues addressed at Final Hearing included a claim for authorization of a follow-up appointment with the authorized treating provider, along with payment of temporary indemnity benefits. On 8/12/15, the Claimant filed a Petition for Benefits asserting the incorrect date of accident, which sought compensability of a right foot cellulitis/bone infection and payment of approximately $80,000.00 in associated medical bills. In response the E/C asserted that the Claimant listed the incorrect date of accident and that the compensable injury was limited to a right foot contusion as the cellulitis was the result of the Claimant’s uncontrolled diabetes. The Claimant worked the above issues up for trial on two separate occasions, ultimately taking voluntary dismissal prior to each respective Final Hearing. On 3/28/17, the Claimant filed a new separate action, this time asserting the correct date of accident. The Claimant filed multiple Petition for Benefits in this new action seeking medical treatment and indemnity benefits related to a right foot cellulitis/bone infection. In response to the most recent Petition for Benefits, the E/C denied all requests for benefits on grounds that the industrial accident is not or is no longer the major contributing cause of all medical and indemnity benefits requested. Less than thirty days prior to trial, the Claimant’s counsel was given leave to withdraw as counsel due to “irreconcilable differences.” The parties proceeded to Final Hearing, with the Claimant appearing pro se. At Final Hearing, the E/C presented medical records from the authorized treating primary care provider and from its IME expert establishing that the industrial accident resulted in a right foot contusion which had resolved and also establishing that the industrial accident was not the major contributing cause of the right foot cellulitis/bone infection. The Claimant did not present any medical evidence. The Court found that the medical evidence establishes that the Claimant reached MMI for his work-related injury with a 0% impairment and full duty work release and that the industrial accident is not the major contributing cause of the need for any further medical treatment. The Court also found that the Claimant failed to carry his burden of establishing any work restrictions in support of his claims for temporary indemnity benefits. The Court denied all benefits requested.
Joseph Cristin v. Everglades Correctional Institution and Division of Risk Management
Jerry Hayden and Tony Caula (Miami, FL) (Workers’ Compensation) Joseph Cristin v. Everglades Correctional Institution and Division of Risk Management. The issues addressed at Final Hearing included compensability of an unexplained syncopal fall that occurred while the Claimant was working as a correctional officer, as well as multiple claims for medical benefits and reimbursement of approximately $400,000.00 in associated medical bills. The Employer argued that the major contributing cause of the Claimant’s syncopal fall was a pre-existing prostate cancer and associated Gerson Therapy regimen consisting of a vegan diet and multiple daily coffee enemas. The Claimant argued that the Employer did not establish a pre-existing condition which contributed to the syncopal fall, or, in the alternative, that the work-place created an increased hazard that contributed to the injuries resulting from the fall. The Claimant provided multiple theories of increased hazard, including stress/freight due verbal reprimands from higher-ranking officers, the hardness of the construction materials used in the walls and floor at the scene of the fall, and that a co-worker came in contact with the Claimant as he fell allegedly increasing his impact force. Due to a conflict of medical opinion between each party’s IME physician, the Court ordered the appointment of an Expert Medical Advisor to address the issue of causation. The EMA opined that the major contributing cause of the syncopal fall was a vasovagal event that occurred in the context of malnutrition related to a Gerson regimen intended to treat pre-existing prostate cancer, which was followed for more than two years prior to the fall. The EMA based his findings on differential diagnosis and a review of records obtained from the Claimant’s primary care provider reflecting continued complaints of low energy and weakness while on the Gerson regimen. Moreover, the EMA specifically rejected the notion that the Claimant’s syncopal fall was the result of freight, nervousness or anxiety. Finding that there was no clear and convincing evidence to the contrary, the Court afforded the EMA’s opinion regarding major contributing cause a presumption of correctness and found that the major contributing cause of the syncopal fall was the Claimant’s pre-existing prostate cancer and associated Gerson regimen. At Final Hearing, the Employer presented evidence from multiple co-workers establishing that on the date of the accident the Claimant had not been reprimanded. The Employer also provided evidence that the accident site contained concrete masonry unit block walls and ceramic tile over a concrete floor. The Employer argued that the materials found at the accident site are similar to what the Claimant was exposed to during non-employment life, including ceramic tiles and a concrete wall exterior in the Claimant’s home, and concrete flooring and walls at locations frequented by the Claimant. The Employer presented testimony from an expert forensic structural engineer who testified that whether the Claimant had fallen at work or other locations outside of the work-place, the impact force would be the same, all other things being equal. The Court accepted the testimony from the Employer’s expert and found that the building materials at the workplace did not create an increased hazard contributing to the injuries resulting from the syncopal fall, and accepted the EMA’s opinion that stress/freight did not contribute to the fall. The Court also found that no evidence to support the Claimant theory that his co-worker coming into contact with his body as he fell resulted in any increased impact force. Accepting the EMA’s opinion regarding major contributing cause, and rejecting all of the Claimant’s theories of increased hazard, the Court denied compensability of the syncopal fall and resulting injuries, as well as all collateral benefits. The Claimant filed a Notice of Appeal.
Stacey Kubik v. Party City and Travelers Insurance Company
Jerry Hayden (Miami, FL) (Workers’ Compensation) The issues addressed at Final Hearing included a Petition for Benefits filed on 8/2/17, seeking PTD benefits and supplemental benefits retroactive to 3/1/17 to date and continuing, plus penalties and interest. The E/SA argued that the Claimant was not eligible for PTD benefits, or, alternatively, that she had not performed a bona fide and exhaustive job search. There was a difference of opinion between the vocational experts regarding the quality of the Claimant’s job search and the existence of suitable jobs within a 50-mile radius of her place of residence. There was also a difference of opinion between the medical experts regarding the date of MMI and work restrictions, leading to the appointment of an EMA. The EMA was asked to render opinions regarding the Claimant’s restrictions and the date of MMI. Following the examination, the EMA opined that Claimant was likely suffering from Complex Regional Pain Syndrome despite the lack of such diagnosis from any prior medical expert. It was the EMA’s opinion that the Claimant was not MMI unless and until she was evaluated, and treated if necessary, by an RSD specialist. Finding that there was no clear and convincing evidence to contrary, the JCC afforded the EMA’s opinion the presumption of correctness and found that the Claimant was not MMI. The JCC further noted that even if such opinions were not within of the scope of the questions presented to the EMA, that he nonetheless accepted the EMA’s opinions over those of the other medical experts. The JCC denied the claim for PTD benefits, penalties, interest and attorney’s fees and costs.
Gertrudis Santaella v. Sky Chefs, Inc. and Liberty Mutual Insurance Company
Jerry Hayden (Miami, FL) (Workers’ Compensation) An evidentiary hearing was held with respect to the Claimant’s third request for a $2,000.00. The Claimant sought the advance on the basis of financial distress. After cross-examining the Claimant, the E/C established that her affidavits filed in support of the motion were not reliable or credible. The E/C also presented evidence that the Claimant was previously provided two advances, with a remaining balance due of $3,779.19. Testimony from the authorized spine surgeon established that the Claimant was at MMI at the time of the request. The E/C argued that awarding another $2,000.00 advance was prejudicial to the E/C. The JCC rejected the Claimant’s financial affidavit finding that it was inaccurate and contained significant inconsistencies and omissions such that it was not reliable evidence of her financial income and expenses on which the court could rely. The JCC also found that the combination of the outstanding advance balance together with the limited anticipated future benefits from which repayment could be made would result in prejudice to the E/C. The JCC denied the Claimant’s request for a $2,000.00 advance.
Steven Bertlshofer v. Davita Inc. and Broadspire
Jerry Hayden (Miami, FL) (Workers’ Compensation) The issues addressed at Final Hearing included a Petition for Benefits filed on 3/23/18 seeking TTD and/or TPD benefits retroactive to the industrial accident of 7/13/11, plus penalties, interest, attorney’s fees and costs. The E/SA argued that it paid appropriate indemnity benefits except for a gap in payment which it argued was unrelated to the subject industrial accident. The E/SA further established documentation that the Claimant had reached MMI for his work related injuries and that he was not eligible for TTD and/or TPD benefits beyond that date. The E/SA presented payroll demonstrating that the Claimant had returned to work post-accident and was receiving his regular earnings prior to the gap period in issue. The payroll also showed that the Claimant had received some paid time off. The E/SA was able to establish that the Claimant had taken time off during this gap period to care for a sick family member. Based on the evidence, the JCC found the adjuster’s testimony, premised on claim notes taken at or near events in issue, was more reliable than the Claimant’s testimony. The JCC determined that the Claimant elected to take personal time off during the gap in issue, which supported the E/C’s voluntary limitation of income defense. The JCC found that the Claimant had reached MMI for his work related injuries without any permanent restrictions. The JCC denied the claim for TTD and/or TPD benefits, attorney’s fees and costs.
Keston O. Smith v. US Food Services, Inc. and Sedgwick CMS
Jerry Hayden (Miami, FL) (Workers’ Compensation) The issue addressed at the Final Hearing included the Claimant’s request for a one-time change of provider. On June 5, 2017, the Claimant submitted an initial written request one-time change of PCP/treating physician by fax containing a lengthy narrative that also requested authorization of medical treatment from an alternate specialist, not a clinic, and specifically sought authorization of a physician to replace Dr. Alan Silbert in the specialty of ophthalmology. At the time of the written request, the Claimant had failed or refused to attend the initial appointment with Dr. Silbert. As such, the E/SA denied the request for alternate ophthalmologist. The Claimant ultimately abandoned his request for an alternate ophthalmologist. Thereafter, the Claimant filed several Petition for Benefits seeking authorization of alternate care. The E/SA argued that the language of each of the requests were ambiguous. In response to the last Petition for Benefits filed on January 9, 2018, the E/SA authorized alternate care with Concentra Medical Center. At Final Hearing, the Claimant argued that Claimant was entitled to a physician of his choice because the E/SA had authorized an alternate an occupational clinic rather than identifying a physician by name. The JCC found no legal support for the Claimant’s arguments and noted there was no evidence that the authorized clinic doctors were not of the same specialty as the original clinic doctors. The JCC denied the Claimant’s choice of one-time change providers, along with the claim for attorney’s fees and costs. The Claimant filed a Notice of Appeal.
Gertrudis Santaella v. Sky Chefs, Inc. and Liberty Mutual Insurance Corporation
Jerry Hayden (Miami, FL) (Workers’ Compensation) The issue addressed at Final Hearing included the Claimant’s request for compensability of a right ankle fracture and authorization of a primary care provider for this condition. The Claimant contended that her compensable back injury resulted in her legs giving way on February 17, 2018, causing her to fall and fracture her right ankle. At Final Hearing, the Employer presented medical records from Coral Gables Hospital on February 17, 2018 which reflected that the Claimant reported twisting her ankle and falling. The E/C also presented medical records from the authorized spine surgeon reflecting that three days after the ankle fracture the Claimant failed to report that her legs gave way. The JCC found that while the authorized orthopedist did present testimony that the Claimant’s complaints of her legs giving way was consistent with her electro-diagnostic studies completed several months after the fall, there was no medical documentation of any history of her legs giving way at or near the time of her February fall. The JCC found that the Claimant was a poor historian, and rejected her testimony that she reported her legs gave way to Coral Gables Hospital and her authorized spine surgeon, as this was inconsistent with the contemporaneous medical records. The JCC also found that the authorized orthopedic physician did not opine that the back injury was the major contributing cause of the February fall. Therefore, the JCC found that the Claimant failed to meet her burden of proving a causal connection between the compensable back condition and the ankle injury. The JCC denied all claims related to the right ankle and the claim for attorney’s fees and costs.
Final Compensation Order (Florida Heart & Lung Bill )
Jerry M. Hayden (Miami) (Workers’ Compensation) obtained a Final Compensation Order denying all benefits in a claim brought pursuant to the Florida Heart & Lung Bill for compensability of an employee’s heart disease and a resulting heart attack. The defense successfully overcame an adverse Expert Medical Advisor’s opinion which is presumed correct absent clear and convincing evidence to the contrary. Mr. Hayden also recently obtained favorable resolution of a traumatic brain injury case involving significant exposure and issues of statutory employer relationship and complex medical causation.

Areas Of Practice

Administrative Law
Appellate Practice
Government Law
Labor and Employment Law
Longshore Harbor and Workers' Compensation Act
Workers' Compensation Defense

Bar & Court Admission

Florida Bar
U.S. District Court for the Southern District of Florida

Education

Graduate:
University of Miami Law School, J.D., 1990
Undergraduate:
University of Tennessee, B.A. Degree in Biology, 1984

Mr. Hayden graduated with honors from the University of Tennessee in 1984, and received his law degree from the University of Miami School of Law in 1990. During law school, he worked as a judicial assistant for the Honorable Linnea Johnson, Federal Magistrate, District Court for the Southern District of Florida. He also worked as a law clerk in the legal department of Capital Bank. Before entering law school, he worked for several years as a research technician for the University of Miami School of Medicine, Department of Anatomy and Cell Biology.

He is an AV® Preeminent™ Peer Review Rated by Martindale-Hubbell. Jerry has more than twenty-five years of experience representing employers, insurance carriers and third party administrators in all aspects of workers’ compensation matters including, but not necessarily limited to, issues of coverage, compensability, heart and lung statute, occupational exposure, eligibility and entitlement to benefits, utilization review, contribution and indemnification, subrogation, equitable distribution, Medicare Set-Aside Allocations, Special Disability Trust Fund and appeals.

Jerry has represented the State of Florida, its various Divisions, Departments and Agencies in workers’ compensation matters for more than twenty consecutive years, including the Office of the Attorney General, Department of Corrections, Department of Law Enforcement, Department of Education, Florida International University, Division of Vocational Rehabilitation, Department of Children and Family Services, Department of Transportation, Department of Agriculture. He has handled all aspects of workers’ compensation claims, heart/lung statute, contribution, subrogation, Special Disability Trust Fund, offset calculations and appeals as well as other governmental entities such as Monroe County, City of Key West, and Town of Bay Harbor Islands and Miami Dade County School Board.

Jerry has also defended claims on behalf of various insurance carriers, third party administrators, employers and self-insureds. He has recovered hundreds of thousands of dollars from the Special Disability Trust Fund and successfully secured recoveries of workers’ compensation liens.

He has extensive litigation and trial experience and handling all aspects of workers’ compensation appeals; 35 FLW D684 (Fla. 1st DCA 2010). He provides educational seminars on Florida workers compensation law.

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