FL Case Law Summaries – 4/29/16
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JCC ORDERS
Wallace Cruz v. American Airlines/American Airlines Worker’s Compensation Dept./Sedgwick CMS
JCC Medina-Shore; Miami District; Order Date: April 27, 2016
OJCC Case: 10-000260SMS; D/A: 9/21/2009
Claimant’s Counsel: Toni Villaverde
Employer/Carrier’s Counsel: David Gerhardt (at evidentiary hearing) & Michael Hernandez (attorney of Record)
Briefly: SANCTIONS – JCC Medina-Shore awarded sanctions against the Employer/Carrier and found the Employer/Carrier violated Rule 60Q-6.125(2)(c) when they filed a pleading containing allegations and other factual contentions that were not true with regard to a pending Motion for Summary Final Order. Specifically, the JCC found the Employer/Carrier’s factual allegations, that there were no genuine issues or material facts in dispute, were not true.
Summary: The JCC found that various disputes regarding material facts were evident in this case at the time the Motion for Summary Final Order was pending, including whether the adjuster extended authorization to a physician, whether the adjuster’s comingling payments of the 2008 and 2009 accidents had any impact on the statute of limitations defense, whether the prior communications with Dr. Fernandez’ office constitute authorization for both dates of accident, whether the two dates of service provided during the year 2015 by Dr. Fernandez were for evaluation and treatment of the 2009 date of accident, and whether the medical service rendered in September 2015 was authorized by the Employer/Carrier.
The JCC found that, despite the existence of these factual disputes, the Employer/Carrier filed a Motion for Summary Final Order alleging there are no genuine issues of material fact. The Judge cited 60Q.6125(3) as allowing a judge to impose appropriate sanctions in this situation and awarded attorney’s fees for nine hours of time by claimant’s counsel defending the Motion for Summary Order.
Sherri Holyfield v. Global TPA, LLC/Zenith Insurance Company
JCC Spangler; Tampa District; Order Date: April 27, 2016
OJCC Case: 15-019287EDS; D/A: 5/31/2015
Claimant’s Counsel: Michael Winer
Employer/Carrier’s Counsel: Stephen S. Berlin
Briefly: MISREPRESENTATION DEFENSE – JCC Spangler denied the misrepresentation defense and found the surveillance video did not provide any basis to support a staged event theory as alleged by the Employer/Carrier.
Summary: The Employer/Carrier argued that a video of the claimant’s fall partially captured on security camera supported a basis to deny compensability on the grounds the claimant staged the fall. The Employer/Carrier argued the video shows the claimant’s husband taking a cell phone photograph of the elevator, seeming to be too concerned about the welfare of his wife, not assisting his wife to stand up after the fall, and exiting the building.
The JCC rejected this theory and found the video images convincingly demonstrate the claimant sustained a rather abrupt fall and a substantial impact with the tile floor of her office building of such a nature that the injury she reported two days later would be deemed consistent with the fall. The JCC found the claimant was within the scope of her employment by entering her office to perform a task, and fell from the Employer’s elevator as she exited the building and thereby sustained documented injuries that are clearly compensable. The JCC stated that he watched the video several times and could not find any basis to support a staged event theory and could not draw contrary inferences from the actions of the claimant exhibited in the video.
Michael Phelps v. Cardinal Health, Inc./Sedgwick CMS
JCC Weiss; Ft. Myers District; Order Date: April 27, 2016
OJCC Case: 08-007414JAW; D/A: 6/27/2006
Claimant’s Counsel: Steven Goddard
Employer/Carrier’s Counsel: Janice Matson Rickert
Briefly: LACK OF PROSECUTION; ATTORNEY’S FEES – JCC Weiss granted the Motion to Dismiss for Lack of Prosecution and found there was no Record activity within one year of the filing of the Motion to Dismiss. The claim for attorney’s fees and costs was dismissed without prejudice.
Summary: The Employer/Carrier argued that while the 60Q Rules allow the Employer/Carrier to file a Motion to Compel claimant’s filing of a Verified Motion for Attorney’s Fees and Costs, the Employer/Carrier is not required to do so and may seek to dismiss the claims for lack of prosecution if appropriate.
The JCC agreed and found the 60Q Rules do not mandate that a Motion to Compel the filing of a Verified Fee Motion is the only remedy in this situation where there has been no Record activity within one year of the filing of the Motion to Dismiss. The JCC cited the case of Limith v. Lenox on the Lake, 163 So. 3d 616 (Fla. 1st DCA 2015), holding that F.S. §440.25(4)(i), the authority for Motions to dismiss for lack of prosecution, applies to pending claims for attorney’s fees and costs. The JCC found that pursuant to the statute, a Motion to Dismiss for Lack of Prosecution is appropriate wherein the preceding twelve months a Petition, Response, Motion, Order, Request for Hearing, or Notice of Deposition has not been filed unless good cause is shown.