FL Case Law Summaries – 1/23/17
By: Ryan M. Knight
Contributor: Thomas G. Portuallo
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1st DCA ORDERS
City of Hialeah/Sedgwick CMS v. Tony Bono
JCC Castiello: Miami District Opinion Date: January 19, 2017
OJCC Case: 14-004166GCC Date of Accident: 12/2/13
Claimant’s Counsel: Kimberly Hill Employer/Carrier’s Counsel: David Goehl
JCC Order: Click Here 1st DCA Order: Click Here
Briefly: Fraud/Misrepresentation – The First DCA reversed the JCC’s order finding that the incorrect law was applied regarding fraud/misrepresentation. The JCC applied the Civil Law rule on fraud. The correct standard is whether a person knowingly made, or caused to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under the Workers’ Compensation Law.
JCC ORDERS
Daniel Rivera, v. City of Tarpon Springs
JCC Rosen: St. Petersburg District Order Date: January 20, 2017
OJCC Case: 16-010794SLR Date of Accident: 4/12/16
Claimant’s Counsel: Tonya Oliver Employer/Carrier’s Counsel: Alan Kalinoski
JCC Order: Click Here
Briefly: Compensability (Heart Disease) – The Claimant alleged that his heart disease developed as a result of the stress incurred in his job as a police officer and DEA agent. The Employer/Carrier denied compensability based on the Claimant’s longstanding history of smoking and diabetes. The JCC awarded compensability despite the Claimant’s increased risk factors.
Summary: The Claimant worked as a police officer and DEA agent for 14 years prior to developing coronary artery disease. He admitted to being diagnosed with diabetes approximately 10 years ago and smoking for roughly 15 years. Fla. Stat. § 112.18 states that any law enforcement officer who is diagnosed with heart disease which resulted in total or partial disability or death shall be presumed for that condition to have been suffered in the line of duty unless the contrary be shown by competent evidence. For this presumption to attach, the Claimant must meet 4 requirements:
- You must meet the definition of a protected class (You have to be a police officer, firefighter or correctional officer as defined in Chapter 112, Florida Statutes);
- You have to have a protected condition (tuberculosis, heart disease or hypertension);
- You must have passed a pre-employment physical; and
- You have to be disabled, either totally or partially.
The JCC determined that the Claimant met the four elements necessary to establish the statutory presumption that the heart disease was worked related.
The JCC noted the Employer/Carrier attempted to rebut this presumption by introducing “risk factors” including the Claimant’s history of smoking and diabetes. The JCC found that these risk factors were balanced out by the testimony of two of the Claimant’s authorized treating physicians that the stress associated with the job also placed the Claimant at an increased risk of developing heart disease. The JCC noted that public policy required that he find in the Claimant’s favor when then evidence was so conflicting and inconclusive. Compensability and medical treatment were therefore authorized.
Ziad Mohammad Kabar (deceased), Employee, Fatima Mahmoud Ka’bar /Claimant, Wife vs. Jawad Corporation
JCC Kerr: Miami District Order Date: January 18, 2017
OJCC Case: 16-004512CMH Date of Accident: 1/30/15
Claimant’s Counsel: Ricardo Morales Employer/Carrier’s Counsel: Christine Nixon-Calamari
JCC Order: Click Here
Briefly: Death Benefits – The Employer/Carrier asserted that the deceased Claimant’s wife was not entitled to death benefits as they were not living together at the time of Claimant’s death and becuase she was not receiving regular monetary contributions from the Claimant. The JCC awarded death benefits based on the Employer/Carrier’s failure to produce evidence supporting their positions that the Claimant had married a different woman prior to his death and that he was not actually making regular contributions to Mrs. Ka’bar.
Summary: As the Claimant and Mrs. Ka’bar were not living together at the time of Claimant’s death, the spouse must show that she was substantially dependent upon the decedent for financial support and that they were living apart at that time for justifiable cause. Mrs. Ka’bar testified that the couple divorced in 1994 but remarried in 2009. The couple had seven children together, four of which have cerebral palsy. The children’s disabilities prevented the Mrs. Ka’bar from working. She relied on monthly contributions from the Claimant and two of her adult children to cover living expenses.
The JCC ruled that the Claimant and spouse were living apart for justifiable reasons and that she was receiving regular contributions from the Claimant. The Employer/Carrier failed to introduce any evidence to support their assertions that the Claimant was married to a different woman at the time of his death and that he was not making regular contributions to Mrs. Ka’bar.
Johnny Canales , v. CMI Custom Mechanical Inc./Zenith Insurance Company
JCC Owens: Port St. Lucie District Order Date: January 18, 2017
OJCC Case: 16-010214KFO Date of Accident: 2/3/16
Claimant’s Counsel: Kenneth Ehrlich and Tim Felice Employer/Carrier’s Counsel: Marissa Hoffman
JCC Order: Click Here
Briefly: Fraud/Misrepresentation & Notice – The Employer/Carrier denied compensability of the accident based on late reporting and GPS records that contradicted the Claimant’s version of events. The GPS records were excluded from evidence based on hearsay. The JCC also found that the Claimant did timely report the accident to a supervisor and granted compensability of the accident.
Summary: The Claimant asserted that he hurt his back sometime around February 3, 2016. He admitted that he could not be sure that was the correct date but remembered telling his supervisor about the injury and complaining that more men were not assigned to help lift the 800 lb A/C unit. The Employer/Carrier’s fraud defense was based almost entirely on GPS records from the Claimant’s work vehicle which contradicted his testimony.
The JCC excluded the GPS records because the Employer/Carrier failed to introduce testimony from any records custodian at Verizon, the GPS company, which could verify the accuracy of the records. The JCC also determined that because the Claimant did not request medical treatment or request to fill out a formal report, it was not surprising the supervisor may not remember the claimant reporting an injury. The Fraud/Misrepresentation defense was therefore denied and compensability was awarded.