Briefly Speaking – FL Case Law Updates (6/1/18)

Harbor Freight Tools, Inc. v. Patricia Whitehead

JCC Humphries: Jacksonville District                 Opinion Date: May 18, 2018

OJCC Case: 16-019425                                              Date of Accident: May 3, 2015

E/C’s Counsel: Daniel Schwarz & Gina Jacobs    Claimant’s Counsel: Daniel J. Glary

JCC Order: Click Here                                               1st DCA Order: Click Here

Briefly: 120 Day Rule – At the initial Final Hearing, the JCC awarded benefits and overruled the Employer/Carrier’s objection to the timeliness of the 120 day defense. The Claimant did not list the 120 Rule as an affirmative defense on the Pretrial Stipulation. The first time it was raised was in the Trial Memorandum filed two days prior to the Final Hearing. Nevertheless, the JCC awarded the Claimant medical and indemnity benefits. The DCA reversed this decision. The First DCA held the 120 day rule is an affirmative defense which must be timely and specifically pleaded. The case was reversed for the JCC to enter an order denying continued benefits.

The Estate of John M. Harringer v. IBM Corporation

JCC Hedler: West Palm Beach District               Order Date: May 11, 2018

OJCC Case: 89-001611                                           Date of Accident: June 1, 1989

Claimant’s Counsel: Patricia Thorne                  E/C’s Counsel:  Michele Leissle

JCC Order: Click Here  

Briefly: Statute of limitations – The statute of limitations ran on Saturday, August 19, 2018. A petition was filed on Friday, August 18, 2017 after business hours at 7:56 p.m. In accordance with Rule 60Q-6.108(1)(e), this PFB was deemed filed on August 21, 2017. The Employer/Carrier’s first response to both pending petitions asserted the statute of limitations defense. The Claimant argued that because the statute of limitations deadline was on a Saturday, the period is extended to Monday, and thus the petition was filed timely.  The JCC found the subject petition was filed timely on August 18th or was effectively filed timely on August 21st. The Employer/Carrier’s statute of limitations defense was denied.

Latisha King v. JP Morgan

JCC Massey: Tampa District                              Order Date: May 14, 2018

OJCC Case: 18-008796                                       Date of Accident: October 10, 2017

Claimant’s Counsel: Mark A. Lee                      E/C’s Counsel:  Jeffrey J. Kerley

JCC Order: Click Here  

Briefly: One-time change – Claimant’s Counsel faxed a letter to the adjuster which contained the following language, “This letter is intended to inform you that our firm has undertaken representation of Latisha King in connection with her workers’ compensation accident of 10/10/2017. In this regard, you will find enclosed a Notice of Appearance and Request to Produce pursuant to 60Q-6.114 Florida Administrative Code and Florida Rule of Civil Procedure 1.350. Please respond to the items noted in the Request to Produce as soon as possible. Additionally, this letter will constitute the claimant’s request for alternative neurologic treatment pursuant to F.S. 440.13(2)(f).

There was no dispute the adjuster received the letter. The Employer/Carrier defended on the grounds that the letter was ambiguous. The JCC ruled the request was valid. There was nothing hiding or obscuring the one-time change request or the specific reference to the statute by number. The JCC ordered the Claimant be allowed to choose the alternate treating physician.

Roberto Cariaga v. Diversified Sourcing Solutions

JCC Forte: Ft. Lauderdale District                       Order Date: May 23, 2018

OJCC Case: 16-030385                                          Date of Accident: October 28, 2016

Claimant’s Counsel: Anthony Forte                   E/C’s Counsel:  Esther Zapata Ruderman

JCC Order: Click Here  

Briefly: Surgical Authorization & TPD – The Claimant developed an infection in his pinky finger after getting a splinter in his finger. He petitioned for one week of TTD benefits. The Employer/Carrier agreed the Claimant’s authorized treating physician, Dr. Stephen Alex, did have the Claimant on a no-work status during the time period in question. However, the Employer/Carrier argued the Claimant was ineligible for TTD benefits because the Claimant only suffered a loss in wages for one week before returning to work with a different employer.  The Judge agreed with this assertion.

The judge also noted the Claimant had “zero credibility.” The Claimant was repeatedly untruthful with the Employer, Carrier, his physicians, and the Court. The Claimant incorrectly filled out his DWC-19s and failed to list his income from his subsequent employers or Unemployment. The JCC also noted that these DWC-19s were completed just prior to the Final Hearing beginning. All indemnity benefits were denied. The JCC also admonished claimant’s counsel regarding the submission of the DWC-19 without verifying whether the information was accurate and true.