FL Case Law Summaries – 12/3/15
BY:
JCC ORDERS
Jason A. Muller Crespo v. A&D Constructors, Inc./Charter Oak Fire Insurance Company
JCC Condry; Orlando District; Order Date: November 30 , 2015
OJCC Case: 14-026365WJC; D/A: 10/20/2014
Claimant’s Counsel: Tony C. Francis
Employer/Carrier’s Counsel: Justin R. Crum
Briefly: MISREPRESENTATION DEFENSE – JCC Condry found the claimant violated F.S. §440.09(4) and F.S.§440.105 by exaggerating his expenses to enhance his claim for a $2,000 advance and exaggerating his mileage to medical providers. The JCC found that the claimant’s misrepresentations were not completely innocent and had a material impact on his workers’ compensation claim.
Summary: The JCC found that the claimant provided testimony at hearing and an affidavit of hardship, detailing his monthly expenses in support of his claim for an advance, but that these amounts were not accurate. After the award of an advance, the Employer/Carrier filed a Request to Produce and conducted discovery into the claimant’s represented expenses at the advance hearing, and, based on its information and belief, challenged the claimant’s continuing entitlement to benefits on misrepresentation grounds, contending not only that the claimant knowingly and intentionally presented false information to prosecute his claim for an advance but that the claimant’s claims for mileage reimbursement were excessive and designed to obtain more benefits than he was otherwise entitled to by law.
The JCC accepted the testimony of a private investigator with regard to the distance the claimant traveled from his residence to his physician’s office. The JCC also considered the claimant’s testimony that in his claim for mileage he arbitrarily added seven miles each way to account for the fact that he did not use toll roads, reflected on his phone’s GPS. The JCC found the claimant knew the mileage figure was not accurate and offered it anyway to increase his mileage distance.
Carmen Bello v Great Cleaning Corp./Ascendant Claims Services
JCC Almeyda; Miami District; Order Date: December 1, 2015
OJCC Case: 15-011827ERA; D/A: 5/6/2015
Claimant’s Counsel: Ramon Malca
Employer/Carrier’s Counsel: Daniel Gonzalez
Briefly: AVERAGE WEEKLY WAGE – JCC Almeyda determined the average weekly wage to be $577.50 and noted that although the claimant was entitled to receive an average weekly wage of $653.83 pursuant to F.S. §440.14, the claimant sought an average weekly wage of $577.50.
Summary: The JCC applied F.S. §440.14 and found the 13-week period is inapplicable because the claimant worked less than 75% of full time hours. The JCC also found that there are no similar employees and the claimant is not a seasonal worker. The JCC determined that the “full time” wages of the claimant averaged $653.83 during the three weeks the claimant worked full time. The JCC found that $653.83 was the appropriate average weekly wage, but noted the claimant only sought an AWW of $577.50 and limited the determination of the AWW to the amount requested by the claimant.
James Randall v. McLane Company, Inc./ESIS WC Claims
JCC Pitts; Orlando District; Order Date: December 1, 2015
OJCC Case: 15-024256NPP; D/A: 9/10/2015
Claimant’s Counsel: David E. Mallen
Employer/Carrier’s Counsel: Philip R. Augustine
Briefly: ADVANCE – JCC Pitts denied the claimant’s request for a $2,000 advance and found there is no plausible nexus between the alleged September 10, 2015, date of accident, and the $2,000 advance based upon the claimant’s testimony that he was injured on September 3, 2015.
Summary: The claimant filed a Petition for Benefits alleging a date of accident of September 10, 2015. However, the claimant’s testimony was clear that he was injured on September 3, 2015.
Based on the claimant’s testimony that he was injured on September 3, 2015, the JCC found there is no plausible nexus between the alleged September 10, 2015, date of accident claimed in the Petition for Benefits for which the $2,000 advance is being sought, and the justifiable medical and financial needs established during the hearing. The denial was without prejudice so that the claimant may pursue his request under the correct date of accident.
Lloyd Orlando v. Novo Nordisk, Inc./Gallagher Bassett Services, Inc.
JCC Sculco; Orlando District; Order Date: December 1, 2015
OJCC Case: 15-024463TWS; D/A: 4/14/2015
Claimant’s Counsel: Sean P. McCormack
Employer/Carrier’s Counsel: Christopher K. Frump
Briefly: ADVANCE – JCC Sculco denied the motion for a $2,000 advance and found there is no real evidence linking the claimant’s termination to his compensable injury. The claimant failed to establish a causal nexus between the compensable injury and his need for an advance.
Summary: The JCC found that following the claimant’s injury, he returned to work with the employer for one month with no loss of earnings, but was fired by the employer and has not worked since, except for a few hours consulting. The JCC noted the Employer/Carrier presented no evidence as to the reason for claimant’s’ termination, but asserted that the termination was for misconduct unrelated to the work injury. The claimant testified that he was fired for misconduct but was given no specific reason. No additional evidence was given as to the reason for claimant’s termination.
The JCC found there was no real evidence linking the claimant’s termination to his compensable injury, therefore the claimant failed to establish a causal nexus between his compensable injury and his need for an advance.
Joe Taylor v. Rodney Gunder Plastering and Stucco, LLC/Markel Insurance Company
JCC Dietz; Sebastian-Melbourne District; Order Date: December 1, 2015
OJCC Case: 15-019438RLD; D/A: 7/14/2015
Claimant’s Counsel: Charles H. Leo
Employer/Carrier’s Counsel: Brian B. Bolton
Briefly: MEDICAL ONLY FEE – JCC Dietz denied a Joint Stipulation for a “medical only” fee of $1,500 and found the only Petition filed in the case sought temporary total disability benefits, temporary partial disability benefits, and compensability, in addition to medical benefits.
Summary: The JCC wrote a detailed order discussing general issues of fee entitlement and payment of taxable costs. The JCC explained F.S. §440.34(3)(a) makes it clear that a Petition is not a “medical only” Petition if any other Petition has been filed seeking disability, permanent impairment, wage-loss or death benefits. The JCC found no Petition for Benefits filed in the case sought medical benefits only and, therefore, denied the $1,500 fee despite the agreement of all parties.
The JCC also noted the claimant asserted a constitutional challenge to F.S. §440.105(3)(c), contending the unilateral application of the Statute to claimants is unconstitutional. The JCC cited a prior DCA decision on this issue in Alstatt v. Florida Department of Agriculture, 1 So. 3d 1285 (Fla. 1st DCA 2009), and also set forth an Administrative Order of March 17, 1994, issued by Chief Judge Shirley Walker. The JCC noted the 1st DCA held that F.S. §440.105(3)(c) does not require approval of any attorney’s fee by the JCC, but merely makes it unlawful to receive a fee unless that fee has been approved. The JCC made no decision on the constitutionality of the applicable law.