Case Law Updates
May 2009
Pepsi Bottling Group, Inc. and Sedgwick Claims Management Services, Inc.
Case No. 1D08-6216
May 7, 2009
Subject: Overpayment of Indemnity, S/L and Petition for Ceriorari
The E/C appealed the JCC's order requiring them to schedule a medical evaluation to establish an MMI date and PIR rating. The respondent, an unrepresented claimant, injured his back in a compensable accident. After undergoing back surgery and being paid benefits, the claimant left his employer and began working for another employer in 7/2005, earning a salary. The E/C, however, continued to pay TTD benefits through 1/2006. When the error was discovered, the E/C filed a motion for repayment and claimed that the statute of limitations had run.
The JCC granted the motion but ordered a medical evaluation to determine MMI and a PIR with the thought that the claimant would be entitled to some credit against the overpayment of TTD benefits. The E/C contended that the order would result in revival of an expired claim and abrogation of their S/L defense. Such ruling would cause irreparable harm.
On appeal the 1st DCA held that the "evaluation" was not treatment or remedial care and would not revive the claim. Further, a credit against the overpayment would also not revive the claim because it would simply be a reclassification of benefits already paid. Petition for certiorari denied.
Mark Burgess v. Buckhead Beef Florida and Sentry Insurance Company
Case No. 1D08-0987
May 11, 2009
Subject: Judicial Abuse of Discretion/Evidence
The claimant appealed the JCC's denial of all benefits. The claimant was injured in 2 compensable accidents and filed PFBs. The cases were consolidated and scheduled for mediation. After an unsuccessful mediation, pretrial statements were exchanged and the JCC noticed a merits hearing for 29 days after entering the pretrial order.
Both parties attempted to complete discovery. Claimant's counsel attempted to set several medical depositions but E/C refused to coordinate or schedule because of vacation. Claimant unilaterally scheduled depositions of three doctors. The E/C then filed a motion for protective order.
JCC entered an order granting the E/C's motion and quashing the Claimant's notices of deposition. JCC denied the Claimant's request for relief reasoning that discovery should have been done before mediation. Further, the JCC denied Claimant's motion to continue. The denial of the claimant's discovery was based on a "per se" application of a discovery cut-off date. The hearing proceeded with the Claimant appearing live but he was not allowed to introduce any medical testimony. All benefits were denied.
On appeal, the 1st DCA held that even testimony of undisclosed witnesses can be allowed into evidence upon a case-specific determination as to whether admission would result in procedural prejudice to the objecting party. Further, the 1st DCA stated that the exclusion of testimony from properly disclosed witnesses based upon a "per se" application of the JCC's interpretation of the administrative rules was not only antithetical but also in direct conflict with the legislative intent of workers' compensation law. The JCC abused his discretion. Reversed and Remanded.
Benicia Demedrano v. Labor Finders of the Treasure Coast and Amisure Insurance Company
Case No. 1D06-6122
May 13, 2009
Subject: Attorney Fees & Paralegal Time
An attorney fee paid as part of a lump sum settlement is based on the fee schedule now mandated by statute and includes paralegal time within the award of attorney time. Affirmed.
Tari Boggs v. USA Water Ski, Inc. and The Claims Center
Case No. 1D08-1515
May 13, 2009
Subject: Disability Benefits and Evidence
In this case, several issues were raised. The 1st DCA affirmed the apportionment issue only because the Claimant's arguments on appeal were not preserved. The Court also affirmed the denial of disability benefits for two periods finding that the JCC's findings were supported by competent, substantial evidence. Finally, the Court reversed the JCC's denial of TTD for several other periods.
Initially this claim was accepted as compensable as an aggravation of a preexisting condition under the 120 day rule. Claimant was under a no work status. During this time, the E/C offered her light-duty which she declined because of her TTD status. The Claimant was then terminated and the claim was denied. Ultimately, the claimant underwent surgery through her own treating physician and was again placed under a no work status. PFBs were filed for both indemnity and medical coverage.
The JCC found that the surgery and medical care was compensable but denied all indemnity benefits because the Claimant VOLed her income and because her doctor was unauthorized.
On appeal, the 1st DCA noted that the JCC could not deny TTD benefits on the basis that the claimant was able to return to work in the absence of evidence the claimant was informed or should have known that she was released to work. The JCC failed to make the appropriate findings to support his denial of TTD benefits for the time the claimant was on no work status.
The JCC denial of other TTD benefits was because the Claimant's physician opinion was inadmissible pursuant to section 440.13(5)(e). Yet, the JCC found that the medical treatment was compensable. Thus, the 1st DCA held that the JCC could not exclude the records and opinions of the unauthorized physician.
Elis E. San Pedro v. Taco Bell/Yum! Brands and Gallagher Bassett
Case No. 1D08-3995
May 19, 2009
Subject: Motion for Summary Final Order/Due Process
The JCC granted the E/C's motion for summary final order. Claimant appealed the dismissal of his PFB alleging that the he did not receive the motion until after the time for filing a response. The JCC did not address the Claimant's motion to vacate.
The 1st DCA held that under due process considerations a party must be given proper notice. The response to the motion for summary final order must have be made within 30 days of receipt plus 5 days for mailing (35 days from the date on the certificate of service). Here the motion's certificate of service was dated 5/19/08. The Claimant alleged she did not receive a copy until 6/24/08, more than 35 days after 5/19/08. Reversed and Remanded.
Americo Vargas v. Conway Southern Express and Travelers Insurance Companies
Case No. 1D09-0674
May 19, 2009
Subject: Jurisdiction - Timely filing
The Claimant failed to respond to the court's order to show case. Any document received by the JCC office after 5:00 p.m. shall be deemed filed as of 8:00 a.m. the next regular business day. Dismissed.
