FL Case Law Summaries – 12/16/15
BY:
JCC ORDERS
Maria Roman v. ABC Distributing, Inc./CHUBB Group of Insurance Companies
JCC Medina-Shore; Miami District; Order Date: December 14, 2015
OJCC Case: 05-029184SMS; D/A: 4/26/2004
Claimant’s Counsel: Bradley D. Asnis
Employer/Carrier’s Counsel: Allison C. Hartnett
Briefly: STATUTE OF LIMITATIONS – JCC Medina-Shore rejected the statute of limitations defense and found that outstanding claims for attorney’s fee and taxable costs tolled the statute of limitations.
Summary: The JCC found that the statute of limitations defense was not a viable defense as the statute of limitations was tolled via the pending/reserved claims for attorney’s fees and costs from prior counsel. These claims were never resolved until after the claimant filed her Petition for Benefits.
Daniel Zutler v. Palmdale Oil Company, Inc./Amerisure Insurance
JCC Spangler; Tampa District; Order Date: December 14, 2015
OJCC Case: 14-026903EDS; D/A: 10/29/2014
Claimant’s Counsel: Michael Keough
Employer/Carrier’s Counsel: David Beach
Briefly: MISREPRESENTATION DEFENSE – JCC Spangler denied the Petition for Benefits and found that the claimant made oral statements that were false, incomplete, or misleading during the hearing, deposition, and to his treating physician in violation of F.S. §440.105(4)(b)2 and F.S. §440.09(4).
Summary: The JCC found that the claimant mislead his treating orthopedist about not having been previously treated for low back complaints. Also, after reviewing the surveillance video, the JCC found the claimant engaged in symptom magnification. Additionally, the JCC found the claimant lacked complete candor during his testimony at hearing, especially involving his recent travel to the northeast. Further, the JCC found that the claimant was not truthful during his deposition testimony regarding his previous low back treatment.
Dedrick Pierce v. Kilyn Construction, Inc./FRSA Self-Insurers Fund and USIS
JCC Roesch; Panama City District; Order Date: December 14, 2015
OJCC Case: 12-023471LAR; D/A: 10/10/2012
Claimant’s Counsel: Paul Anderson
Employer/Carrier’s Counsel: Manuel Alvarez
Briefly: HANDICAPPED ACCESSIBLE HOUSING; AUTO INSURANCE ON VAN – JCC Roesch awarded the claimant rent due for handicapped-accessible housing and payment of auto insurance on the claimant’s handicapped-equipped van and found that, under the facts of this case, the Employer/Carrier took the “absurd position” that it has no continuing obligation to ensure that the claimant has handicapped-accessible housing.
Summary: The JCC noted that the claimant’s need to live in handicapped-accessible housing has been firmly established in this case and is not subject to dispute, although it may change as conditions change over the claimant’s lifetime.
The JCC found that the carrier took no action to provide the claimant assistance with providing him handicapped housing, despite being asked to do so. As a result, the claimant was forced to move out of his apartment and to secure housing on his own. The claimant entered into an agreement to lease with an option to purchase a home in Alabama. Because the carrier took no action, the JCC found the claimant reasonably acted on his own behalf to secure handicapped housing.
The JCC also found that the claimant cannot operate a vehicle in Alabama without state-mandated insurance coverage and that case law is well-settled as to the Employer/Carrier’s obligation to provide insurance coverage under these circumstances. The JCC found the Employer/Carrier has not paid any money towards the cost of auto insurance on the van it purchased for the claimant and, although the claimant made the initial purchase on the insurance, he could not continue to pay as he had no funds to do so.
Karl Kindervater v. North Port Police Dept./City of North Port/Gallagher Bassett Services, Inc.
JCC Beck; Sarasota District; Order Date: December 14, 2015
OJCC Case: 10-029648DBB; D/A: 9/8/2009
Claimant’s Counsel: Rosemary B. Eure
Employer/Carrier’s Counsel: Michael E. McCabe
Briefly: MISREPRESENTATION – JCC Beck denied the misrepresentation defense after reviewing video surveillance and found the claimant to be a credible witness.
Summary: Although the JCC found that the claimant’s statements to his physician were false, incomplete or misleading, the claimant did not subjectively believe or intend the statements to be false when they were made and did not subjectively believe his statements would assist him in securing workers’ compensation benefits. Consistently, the JCC noted that the claimant’s physician did not think the claimant made a false, fraudulent or misleading statement to him and that the MRI finding confirmed the claimant’s explanation for worsening left leg pain.
With regard to the surveillance, the JCC found it is not logical the claimant would admit to washing his vehicles, taking his boat out, riding his motorcycle, and working out at the gym, yet deny working in the yard.