Briefly Speaking – FL Case Law Updates (8/6/18)

Samuel Phillips v. Tyson Foods

JCC Winn: Pensacola District                            Order Date: July 7, 2018

OJCC Case: 17-023047                                    Date of Accident: May 2, 1976

Claimant’s Counsel: Douglas H. Glicken            E/C’s Counsel:  Tara L. Said

JCC Order: Click Here  

Summary: Statute of Limitations – Claimant’s counsel filed PFB’s for medical care, ongoing PTD benefits, compensability and attendant care for a claimant who was injured in 1976 while working for Wilson Foods, a self insured company. Claimant was found to be PTD as of 11/26/86 and the state paid supplemental benefits. In 1987. Wilson Foods was in financial trouble and was acquired by Doskocil Companies. Doskocil Companies filed for bankruptcy in 1992. In 1995, Doskocil changed its name to Foodbands America, Inc. Foodbrands, America Inc. then merged with and acquired IBP, Inc. In 2001, IBP was merged or acquired by Tyson Foods. Claimant alleged that as a matter of law and contract interpretation, claimant became an employee of Tyson Foods.  He argued that the statute of limitations never ran as the state continued to pay supplemental benefits, despite the base PTD benefits ceasing  during the early bankruptcy. Claimant also alleged that the JCC had jurisdiction to interpret the multiple contracts put into evidence. The E/C argued that the SOL had run, that claimant had been represented by counsel and knew of his rights under the workers’ compensation act, and that the JCC lacked jurisdiction to interpret out of state contacts as it pertained to incurred liabilities.

The court found that the claimant failed to make a timely claim within a year of the last provision of benefits by the employer, knew of his rights and failed to act, thus allowing the SOL to run. On motion for rehearing,  claimant alleged that the E/C should be estopped from raising the SOL defense because claimant was not informed of his rights as required by law and the E/C bears that burden and that the JCC erred in not interpreting the law for this date of loss in the light most favorable to the claimant.  The court disagreed and noted in a subsequent Order dated July 25th, that claimant failed to raise an estoppel defense in the pretrial stipulation and to raise it at hearing is too late. Furthermore, for this date of loss, the JCC found that the statutory notice of claimant’s rights was not in effect until 1979 so there was no failure on the part of the E/C. Claimant testified that when his indemnity stopped, he sought out his attorney for advise and then also communicated with the Division as to the status of his benefits so for him to allege he had no knowledge of his rights goes against the evidence presented. All benefits denied. 

Artison Blanchet v. Busy Bee Car Wash

JCC Kerr: Miami District                                    Order Date: July 18, 2018

OJCC Case:  14-021764                                    Date of Accident:  August 30, 2014

Claimant’s Counsel: Robert Rivera                    E/C’s Counsel:  Ryan M. Knight

JCC Order: Click Here  

Summary: Attorney’s Fee & Prevailing Party Costs – Claimant’s Counsel alleged they were entitled to attorney’s fees due to the Employer/Carrier’s failure to stipulate to prevailing party costs. The Employer/Carrier defended on the grounds that the claimant was not the prevailing party because no good faith effort was made to resolve the dispute prior to filing of the petition Employer/Carrier pointed to Claimant’s Counsel’s own time sheet and cost affidavit which did not indicate any good faith effort to resolve the dispute prior to the filing of the Petition. Employer/Carrier further argued petitions for benefits should be filed only when the parties are unable to resolve a dispute, not as a means of creating a dispute. Thus, Claimant created unnecessary litigation and generated unnecessary costs and should not be rewarded for such behavior. The Judge agreed and ruled that by failing to make a good faith effort to resolve the dispute prior to filing the petition, the petition became the first attempt by Claimant to obtain the requested benefit, thus making the petition the good faith effort. The Claimant could, therefore, not be considered the prevailing party as he did not fulfill the condition precedent to the filing of the petition, namely making a good faith effort to resolve the matter.  Attorney’s fees and costs denied. 

Rebecca Golob v. P.F. Chang’s China Bistro Inc.

JCC Hedler: West Palm Beach District               Order Date:  July 16, 2018

OJCC Case:  17-030064                                  Date of Accident:  December 10, 2017

Claimant’s Counsel: Brian P. Vassallo              E/C’s Counsel:  Jeffrey L. Marks

JCC Order: Click Here  

Summary: Average Weekly Wage & Fraud/Misrepresentation – The Claimant worked as a server and was injured on her first day of employment during which she worked a “double-shift.” The claimant contested that her average weekly wage should be the wages from her first day of employment multiplied by 5.5 because she expected to work 5-6 shifts per week. The JCC ruled that the claimant failed to prove her alleged average weekly wage with sufficient evidence. There was no evidence introduced that the Claimant would have worked 5 or 6 “double-shifts” per week or even that she would have worked each shift as a server. While training, the claimant worked as both a server and a food runner during which she earned different hourly wages. Because the Claimant failed to meet her burden of proving the average weekly wage, the Employer/Carrier’s AWW of $674.04 was awarded.

The Employer/Carrier also raised a misrepresentation defense based on her numerous alleged misleading statements during the deposition. When asked about these alleged discrepancy at the final hearing, the claimant did not challenge the medical reports, but rather testified that she did not remember such visits. The Claimant explained that she does not have a good recollection from 2009 to 2014 as she was addicted to opiates. The Judge found merit in this argument and ruled that the misstatements were made unintentionally. Misrepresentation defense denied.

Steven Fishel v. Publix Super Market

JCC Arthur: Lakeland District                             Order Date:  July 19, 2018

OJCC Case:  17-024849                         Date of Accident:  May 22, 2017

Claimant’s Counsel: Bradley G. Smith               E/C’s Counsel:  Kevin E. Leisure

JCC Order: Click Here  

Summary: Compensability (No accident/injury) – The claimant asserted he aggravated his pre-existing internal hemorrhoid condition while lifting crates of iced tea at work (approximately 35 lbs.), and this aggravation led to the bleeding of the hemorrhoids.  After notify his employer, the claimant was taken by ambulance to a local hospital. Dr. Hirsch testified that the incident of May 22, 2017, as described by the Claimant could not, and did not, cause an aggravation of his pre-existing internal hemorrhoids, as the claimant alleges. The doctor testified that although lifting may lead to increased abdominal pressure that could cause internal hemorrhoids to bleed, this is associated with severe lifting, such as power lifters, and not from lifting as described here. The JCC ruled that the claimant did not have an “accident” as defined by Chapter 440.  The JCC also denied compensability of the emergency room treatment because while this treatment did constitute “emergency care,” the claimant still bears the burden of establishing such treatment was medically necessary and arose out of the work place accident.

Ruthena Cromer v. Miami Dade Public Schools

JCC Almeyda: Miami District                             Order Date:  July 17, 2018

OJCC Case:  17-029929                               Date of Accident: June 9, 2011

Claimant’s Counsel: Ted Roemer                      E/C’s Counsel:  Jeanette Guerrero

JCC Order: Click Here  

Summary: Statute of limitations – The Employer/Carrier alleged the Claimant was provided with proper notice of the statute of limitations via a brochure sent in the initial claim packet. Claimant stated she did not recall receiving the informational brochure but did admit to having memory lapses during that time. The JCC concluded that the Claimant had been provided proper notice of the statutory limitations. Both parties agreed that more than one year had lapsed since the last provision of medical treatment. However, the JCC concluded that the statue limitations had not run because the Claimant’s previously authorized orthopedic physician had referred the claimant pain management. That referral had never been authorized and the claimant has never received treatment from any pain management physician. The JCC determined that this unauthorized recommendation had tolled the statue limitations.