January Briefly Speaking

Editor: Felicia Wymer

Authors: Travis Coleman and Libby Nelson

Alicia Luna Luna v. Southern Meat Sales, Inc. and Bridgefield Casualty Insurance Company

JCC Anderson: Orlando District                                                                   Order date: November 29, 2023

OJCC Case: 22-028226WWA                                                                          Date of Accident: March 1, 2022

JCC Order: Click Here

Briefly: Misrepresentation  

Summary: The Claimant slipped and fell down a flight of stars at work and was treated at Concentra, where she was diagnosed with lumbar, right shoulder, neck, and right ankle strain, as well as knee, right forearm, and scalp contusions.  The claim was accepted as compensable. The Claimant had a prior slip and fall with a different employer in 2017, resulting in injuries to the back and rough shoulder, and a motor vehicle accident in 2021 resulting in permanent injuries to her neck and back. Despite these priors, the Claimant failed to disclose prior neck and back treatment to six different treating physicians. The Claimant tried to correct these omissions at Final Hearing, but the Court found it more persuasive that none of the medical reports indicate her prior injuries. The Claimant also testified at Final Hearing that she had simply forgotten the 2021 motor vehicle accident, but the JCC found this hard to believe where the Claimant had continued to treat for same up until two months prior to the at issue accident. Another misrepresentation was found where the Claimant answered “no” to an injury statement from the E/C asking if she had ever been previously injured resulting in permanent or partial disability, given that both her prior workers’ compensation claim, and motor vehicle accident had involved permanent impairment ratings. The Claimant was also found to have misrepresented her prior condition during her deposition when she denied ever having had neck pain prior to the work accident. The JCC found the E/C met their burden by a preponderance of the evidence that the Claimant knowingly and intentionally made false, fraudulent, misleading, and incomplete oral and written statements wit ha specific intent to deceive for the purpose of obtaining workers’ compensation benefits and all claims were denied.


Noel H. Cuarezma Carmona v. Stocking Management, LLC and Florida Citrus, Business & Industries Fund

JCC Grindal: St. Petersburg District                                                Order date: 12/05/2023

OJCC Case: 23-011818EBG                                                                Date of Accident: 03/31/2023

JCC Order: Click Here

Briefly: Undocumented Alien, Average Weekly Wage, Temporary Total/Partial Disability

Summary: The Claimant, an undocumented alien, testified that he had no taxpayer identification number and had never filed an income tax return in the United States at any time including for any earnings from the employer. The Claimant was able to establish that he earned income for the 12 weeks preceding the week of the accident. Section 440.02(40) of the Florida Statues provides that “wages” must be reported for federal income tax purposes to be included in the average weekly wage. The Court found that it made no difference that the employers had not reported the Claimant’s earnings to the IRS, as this does not relieve the Claimant of his obligation to report the earnings for them to be wages under section 440.02(40). The JCC found that the Claimant’s average weekly wage was $0.00, and no compensation was due.


Alicia K. Knedgen v. HROI d/b/a Halifax River Yacht Club

JCC Arthur:   Orlando District                                                      Order date:   12/6/2023

OJCC Case:   20-018199WWA                                                         Date of Accident:    1/23/2020

JCC Order: Click Here

Briefly:  Notice, Major Contributing Cause

Summary: The claimant was injured when a door swung open, striking her on the top of her head. The E/C authorized medical treatment for injuries to the head and neck, but the claimant also reported numbness and pain in her shoulders, arms, and hands, after bracing herself from falling. The claimant eventually came under the care of a pain management physician, Dr. Gernert who, after an MRI of the left shoulder, found no abnormalities or anything related to the work accident, and opined the accident was not the MCC of the claimant’s left shoulder pain. The claimant then moved to Arkansas, and her pain management physician there diagnosed the claimant with adhesive capsulitis caused by the work accident. The E/C denied due to the claimant not giving notice of a separate injury to her left shoulder. The JCC noted that the E/C had immediate notice of the injury on the date of accident. The JCC then turned to the MCC issue and found that the claimant’s initial pain management doctor was more convincing for three reasons. First, he saw the claimant closer in time to the industrial accident. Second, he is more experienced than the Arkansas doctor. Finally, Dr. Gernert treated the claimant for several months. The JCC also found that the claimant’s reports of not having shoulder pain from 2012-2020 would require an expert medical opinion and not lay testimony. The JCC found the left shoulder was not compensable, denied payment of past medical expenses related to the left shoulder.


Joseph Hornbeck v. Vermeer Southeast Sales & Services

JCC Arthur:   St. Petersburg District                                                           Order date:   12/6/2023

OJCC Case:   21-015054JPM                                                                           Date of Accident:    9/16/2019

JCC Order: Click Here

Briefly:  Fraud/Misrepresentation

Summary: The claimant injured his right leg when it got caught between a mixing machine and a trailer. During the course of treatment, the claimant underwent a total of four surgeries, with the last occurring in January 2022. Following surgeries, the Claimant alleged problems in the low back and left hip. During discovery, the E/C uncovered a motor vehicle accident in 2019 when the claimant was rear-ended. The claimant reported this accident caused pain only in his neck and upper back, and denied any pain or treatment to his lower back. The claimant denied prior chiropractic treatment or physical therapy to the lower back, and any MRIs. In the JCCs analysis, the Court determined that the claimant made false statements regarding his medical history during his deposition. Specifically, the claimant only admitted to seeing a chiropractor when he was involved in a motor vehicle accident when he was 19 years old. However, there were 20 dates of chiropractic treatment from June 25, 2019 through February 4, 2020 for the 2019 motor vehicle accident. The claimant also made false statements in his deposition when he stated that the 2019 motor vehicle accident only resulted in neck pain. The claimant’s medical reports from after that motor vehicle accident contained reports of lower back pain on many visits, resulting in a 5% permanent impairment rating for the lower back. The JCC also reviewed the surveillance video obtained by the E/C. During the surveillance, the Claimant was recorded walking and standing without difficulty, and with no outward sign that he was in any pain. This was contrary to statements made to Dr. Rodriguez, the authorized treating physician, that the claimant was unable to fully stand on his right leg. As Dr. Rodriguez found this to contrast with the claimant’s reports and physical examination, this could not be explained as simply a good day for the claimant. Finally, the JCC found that the claimant’s testimony was self-serving and often contrary to the facts on record, at several points becoming defensive and argumentative. The JCC accepted the evidence as more credible and reliable than the claimant’s testimony. The JCC, after reviewing all of the evidence, found that the claimant knowingly made intentional false, fraudulent and misleading oral statements for the purpose of obtaining workers’ compensation benefits, and dismissed all pending PFB’s with prejudice.


Deborah Spiwak v. Timothy J. Parker DMD, P.A. and Technology Insurance Company, Amtrust North America of Florida

JCC Timothy S. Stanton: Jacksonville District                                       Order date: 01/04/2024

OJCC Case: 23-011460TSS                                                                   Date of Accident: 4/10/2023

JCC Order: Click Here

Briefly: Fraud/Misrepresentation, Authorization of Medical Care, Temporary Partial Disability

Summary: The Claimant, a dental assistant, was attacked by a patient while in the process of sedating the patient for a surgical procedure. The Claimant sought TPD benefits, authorization of medical care and compensability to her left eye, head, neck, back, both shoulders, and both arms. The Employer/Carrier denied the claim based on fraud and misrepresentation arguing that the claimant made false, incomplete, or misleading statements about prior headaches, having a regular eye doctor, or disclosing prior headaches to authorized providers. The JCC, after observing the Claimant’s demeanor and candor, found that the Claimant did not intend to deceive to wrongfully receive workers’ compensation benefits. Specifically, the JCC noted that the Claimant’s testimony focused on the severity of her current headaches as being more than she had previously suffered/experienced, and she testified that she had never had headaches of that severity in the past. The E/C’s defense of misrepresentation was denied. The Claimant offered uncontroverted medical opinions as to the compensability of her injuries and they were accepted as compensable by the JCC. As the left eye injury and treatment for headaches were found to be compensable, the JCC found that the claimant was entitled to the requested medical treatment. However, the E/C remained in control of the selection of the doctor. The Claimant was found to not be at overall MMI and TPD benefits were payable. The court found the employer was unable to accommodate the Claimant’s restrictions and the Claimant was awarded TPD benefits.