Briefly Speaking – FL Case Law Summaries (9/26/17)

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By:                    Ryan M. Knight – Miami

Contributor:   Tara Said – Pensacola

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Utopia Home Care v. Beatriz Alvarez

JCC Rosen: St. Petersburg District         Opinion Date: September 5, 2017

OJCC Case: 11-02908                                  Date of Accident: 4/6/2011

Claimant’s Appellate Counsel: Paulette Brown and Ben Cristal 

Employer/Carrier’s Appellate Counsel: Wendy S. Loquasto and Bradley Smith

JCC OrderClick Here                                       1st DCA Order: Click Here

Briefly: The Court determined that the six month limitation on temporary psychiatric disability benefits outlined in Florida Statutes § 440.093 ends precisely six months following assignment of physical MMI.    

Summary: The Court was asked to interpret Florida Statutes § 440.093(3) which states, “in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than six months after the date of maximum medical improvement for the injured employee’s physical injury or injuries . . .” Claimant’s Counsel argued that this section meant that a Claimant was allowed to receive up to six months of temporary indemnity benefits based on psychiatric issues at any time after assignment of physical MMI. The Court relied on its previous decision in School Board of Lee County v. Huben, and ruled that temporary psychiatric disability benefits are not payable for any date or time period later than six months to the day after the date of physical MMI. 165 So. 3d 865 (Fla. 1st DCA 2015).


Amin Bashiri v. Coastal Millwork

JCC Stephenson: West Palm Beach District      Order Date: August 28, 2015

OJCC Case: 15-024726                                             Date of Accident: 10/22/2015

Claimant’s Counsel: William Haro                     E/C’s Counsel:  David Halpern & Ryan Vatalaro

JCC OrderClick Here  

Briefly: Fraud/Misrepresentation – The Employer/Carrier denied the Claimant’s request for authorization of a psychiatrist based on the Claimant’s fraudulent and/or misleading statements at deposition. The JCC found in favor of the Employer/Carrier and ruled that the Claimant intentionally misrepresented his prior mental conditions for the purpose of obtaining Workers’ Compensation benefits.

Summary: During the Claimant’s deposition, he denied having a primary care physician, denied ever suffering from depression, and denied ever feeling anxious in the past. The medical records reflect that the Claimant did have a primary care physician, who just weeks prior to the Claimant’s workplace accident, diagnosed him with anxiety and referred him to a psychiatrist. The Claimant had also overdosed on Percocet on three prior occasions, at least two of which were documented as suicide attempts. After the third overdose, the Claimant was Baker Acted and admitted to a mental health center. The JCC found that the Claimant knowingly and intentionally made false, incomplete, and misleading statements at deposition, at final hearing, and to the independent medical examiners in order to secure workers’ compensation benefits. The Claimant was therefore barred from receiving any further benefits.  

Brenda Jennings v. Broward County Sheriff’s Office

JCC Hogan: Ft. Lauderdale District                     Order Date: September 1, 2017

OJCC Case: 09-009144                                            Date of Accident: 6/12/2005

Claimant’s Counsel: Jason Barnett                    E/C’s Counsel:  Robert Rodriguez

JCC OrderClick Here  

Briefly: Fraud/Misrepresentation – Counsel for the Employer/Carrier asserted that the Claimant made at least 54 fraudulent or misleading statements during her deposition in addition to the fraudulent statements made to her authorized treating physicians and at final hearing. After considering the testimony of both the Claimant and her authorized treating physician along with the surveillance footage presented, the JCC determined the Claimant intentionally made fraudulent and misleading statements for the purposes of obtaining Workers’ Compensation benefits.

Summary: The Claimant, a professional weightlifter, was repeatedly asked during her deposition about her ability to exercise following her workplace injury. The Claimant specifically denied the capability of doing pushups, squats, sit-ups, burpees, and numerous other activities. The Claimant also indicated to her authorized treating physician that daily living activities such as getting off a toilet caused her pain and discomfort. At the final hearing, the Claimant was confronted with surveillance footage of her at a gym performing numerous exercises including one-handed pushups, squats and burpees.

Additionally, the Claimant also denied during her deposition, receiving any income from, or having any significant involvement in her daughter’s hair salon. A woman who rented a booth at the salon testified that she only ever dealt with the Claimant and always paid her rent check directly to the Claimant. A Wells Fargo representative also provided testimony that the Claimant was the only authorized signor on the business account. The JCC, taking all of this information into account, ruled in favor of the Employer/Carrier and barred the Claimant from receiving any further Workers’ Compensation benefits.

Dustin Duncan v. Peaden Air Conditioning

JCC Walker: Panama City District                      Order Date: September 7, 2017

OJCC Case: 17-005369                                            Date of Accident: 1/25/2017

Claimant’s Counsel: Chris Cumberland              E/C’s Counsel:  Matt Bennett

JCC OrderClick Here  

Briefly: Compensability & Notice – The Claimant alleged that he initially hurt his back at work on the date of accident and aggravated the back injury while throwing a softball that evening. The JCC considered the testimony of six witnesses in addition to that of the Claimant and determined that the injury was not work related and in fact, occurred while playing softball. The JCC also found that the Claimant failed to notify the Employer/Carrier of the injury within 30 days.

Summary: The Claimant worked as an AC installer and alleges that he hurt his back while carrying an AC unit up the stairs. The Claimant testified that he told his lead mechanic, Paul, about the back injury at that time. The Claimant attended a softball game that night and threw out his back while catching balls in the outfield. The JCC considered the testimony of the supervisor, Paul, along with co-workers, witnesses from the softball field, and friends of the Claimant, all of whom testified that the Claimant had long suffered from back problems and denied recalling the Claimant ever mentioning any workplace injury. The JCC ruled that the preponderance of the evidence supports a finding that the injury did not arise out of the employment. The JCC also denied the Claimant’s request for an evaluation to determine the cause of the injury because the Employer/Carrier had denied compensability from the beginning of the claim and never authorized medical treatment.