Case Law Update January 2020
This Update contains summaries of all relevant Appellate decisions usually for the preceding week, with comments on how a particular decision affects you. In addition, we review daily the Merit Orders posted on the DOAH website. This Update contains summaries and links to relevant JCC decisions for the past week or so.
HR Law Cases
JCC Stanton (Gainesville) – Issued an Amended Order denying all benefits for misrepresentation following E/C’s Motion for Rehearing. The JCC found the claimant committed multiple misrepresentations. She initially injured her lumbar/thoracic spine in 3/19, and reported a negative history of any prior low back injuries or medical treatment, to the NCM, initial treater, physical therapist and orthopedist. The E/C paid the claimant TP as the employer could not accommodate her 5 pound lifting limit. Subsequent surveillance showed the claimant placing her children in car seats and selling items at a flea market, both of which she denied doing at any time. At her deposition in 8/19, the claimant stated she had received medical treatment for her back in 1/19 at Lake City medical, and that the incident had occurred at work. Two weeks before the 11/19 Merit Hearing, the E/C obtained the January records, which stated the claimant was injured while moving when a washer she was loading into a U-Haul fell back on her, and had a lumbar CT scan. At hearing, she testified she made up that version of events as she was afraid the ER would not treat her, and she did not report the January incident as work related because she thought she would be terminated. The JCC found that the claimant knowingly withheld the information from the January visit (whatever version really occurred) to obtain WC benefits. He also found she knowingly misrepresented in deposition her ability to place the children in and out of car seats, as well as whether she sold items at a flea market, and that such false testimony resulted in a total denial of benefits, including claimed medical, indemnity and a $2,000.00 advance.
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JCC Havers (Miami) (Sandra Guzman) – Denied all benefits for misrepresentation pursuant to 440.105(4)(b) and 440.09(4). The claimant was involved in an initially compensable industrial accident on December 2, 2016, which resulted in injuries to his head, arms, neck, and headaches. He was transported to the ER where he was diagnosed with a head injury, neck sprain, paresthesia, and was instructed to follow up with his PCP. Unrelated to the accident, the claimant treated with Dr. Septien under his private health insurance but did not report his work related injuries over the course of 6 visits that spanned from December 8, 2016 through October 7, 2017. The claimant then suffered a subsequent workplace accident with another employer on April 20, 2018. Under the 2018 claim, orthopedic physician Dr. Donshik was authorized. The claimant provided history of the 2016 workplace accident and explained to the doctor that he did not receive any follow-up treatment for that accident because his employer did not have workers compensation insurance nor did he have personal health insurance. Dr. Schechter was then authorized to treat and the claimant provided an identical history. At the Final Hearing, the claimant admitted that he had health insurance from 2016 through 2018 and did not make complaints of neck pain to Dr. Septien because he feared that his health insurance would not pay for medical bills associated with his work accident. The JCC determined that the claimant made false and misleading statements to both Dr. Donshik and Dr. Schechter and did so with the intent of obtaining workers’ compensation benefits.
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JCC Weiss (Ft. Meyers)(Scott Miller) – The JCC denied compensability of the claimant’s knee injury. The claimant drove a cement mixer. He testified as he was walking towards his truck, on a flat surface, his knee “popped”. He received initial treatment via the employer, but ultimately the E/C denied compensability. The claimant subsequently had a non-authorized partial knee replacement due to pre-existing osteoarthritis. The E/C’s denial asserted , per Valcourt, that an accident is compensable only if the employment exposed Claimant to conditions that would substantially contribute to the risk of injury and to which Claimant is not normally exposed during his non – employment life. The Claimant argued that the E/C waived their right to deny compensability and, alternatively, Claimant’s employment placed Claimant in a position increasing the dangerous effects of a fall, such as on a ladder, near machinery or sharp corners, or while pivoting in the sand. The JCC agreed with the E/C, finding that no waiver occurred, nor did the claimant show estoppel. In relation to the arising out of element, the JCC found the claimant failed to show how merely walking on compacted dirt results in a compensable accident. The claimant argued that he was pivoting in the sand, but his testimony was that he had turned, and as he was walking back to the truck his left knee popped. The injury did not occur while Claimant was pivoting, or twisting, but rather after he had turned and was simply walking back to his truck.
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JCC Dietz (Sebastian/Melbourne)(Derrick Cox) – Granted E/C Motion to Enforce Settlement. The claimant testified that there was no dispute as to the amount of settlement or the terms as noted in the Mediation Agreement, but rather he took issue with language in the general release. The JCC found he had no jurisdiction over the terms of the general release, but granted the motion to enforce directing the parties to submit the required paperwork for approval.
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DCA Cases
Hauser v. Goodwill Ind. Of SW FL/Utd. Heartland, (Fla. 1st DCA 12/20/2109) Evidence/Inadmissible Hearsay
The JCC found the employer justifiably terminated the claimant for misconduct and denied TPD. However, the DCA agreed with the claimant that the JCC erred in admitting the employer’s exit interview form, as it contained inadmissible hearsay. The JCC overruled the claimant’s objections, finding she admitted to the conduct. The DCA found that although she admitted to certain conduct, she denied making the statements contained in the document and attributed to her. Second, the JCC admitted the form via the business records exception. The DCA noted that although the form appeared to come in under this rule, the statements attributed to the claimant were again hearsay within hearsay, which F.S. s. 90.805 says may be admitted, provided each part of the combined statements confirms with an exception to the hearsay rule. A manager had prepared the report based upon what a bystander customer allegedly heard the claimant say. As the exit interview form was inadmissible, the DCA reversed and remanded for a new trial.
McDonald v. City of Jacksonville (Fla. 1st DCA 12/20/2019) First Responder Presumption/Burden of Proof re. Trigger
The DCA reversed the JCC’s denial of compensability of the claimant’s coronary artery disease (CAD) finding he placed the burden of proof regarding the trigger on the wrong party. The E/C denied the claimant’s PFB for compensability of CAD. The officer’s history was that while on duty Thanksgiving day, he went to a voluntary brunch at the station, returned to work, and thereafter experienced what he thought was indigestion. On Saturday he went to the hospital, where doctors diagnosed a heart attack, resulting in a five day hospital stay. Evidence showed he had CAD, which led to a plaque rupture and heart attack. Claimant’s IME (Mathias) testified he could not say what caused the CAD, while the E/C IME (Dietzus) stated the cause was a combination of non-occupational factors. The EMA (Borzak) stated the cause of the event was the presence of hypercholesterolemia, hypertension, diabetes and age and that those non-occupational risk factors “were sufficiently strong in this case to reach the standard of more likely than not resulting in his coronary event.” He added that “[w]hile the onset of symptoms was on the job, there is no clear or identifiable triggering factor.” The JCC’s Order found the claimant met his burden under the presumption, and as he relied solely on the presumption, the E/C’s burden to rebut was to present competent, substantial evidence that the cause of the CAD was non-occupational. Thereafter, the JCC engaged in a trigger analysis, which the DCA concluded improperly shifted the burden to the claimant. The burden remains on the E/C after the presumption is met to establish that the heart disease was caused by a “combination of wholly non-industrial causes”—i.e., that the trigger of the claimant’s heart disease is not work-related.
Hobby Lobby Store, Inc. v. Cole (Fla. 5th DCA 1/3/2020) Workers’ Compensation Retaliation/Enforceability of Arbitration Clause
The employer terminated the claimant following a workers’ compensation accident, resulting in the employee bringing suit for WC retaliation under F.S. s 440.205. The employer moved to compel arbitration, pursuant to an agreement the employee signed upon hire. The Circuit Judge denied the Motion, finding the agreement was a contract of adhesion. The DCA reversed, finding the agreement was not procedurally unconscionable, as the employee did not show he could not read it, nor was there coercion or confusion, or evidence of a fair opportunity to inquire or enlist assistance in understanding any of the terms. The agreement was not substantively unconscionable, as it didn’t short the SOL, allowed the claimant to select between arbitration rules and did not require payment of all attorney fees if contesting provisions other than its applicability.
2k South Beach Hotel, LLC v. Mustelier, (Fla.1st DCA 1/15/2020) Hearing Procedure/Medical Benefits
The DCA issued a PCA without opinion on 10/15/2019, affirming the JCC’s award of certain benefits. The E/C filed a Motion for Rehearing and requested a written opinion. The DCA withdrew the PCA, and issued this written opinion. The parties were to try issues of authorization of home health, compression socks, water therapy and a psychiatrist. Three weeks prior to hearing, the parties deposed a doctor who testified claimant ambulated with a cane. As this was new information, the E/C obtained surveillance the week prior to hearing, showing no cane use, but free use of her hand and arm (she had a diagnosis of CRPS). The claimant testified the day prior to hearing that she never used a cane. In the wee hours on the morning of the hearing, the E/C moved to admit the video into evidence and to amend their defenses to include misrepresentation. They provided the surveillance that morning. The JCC denied the E/C motions, finding granting them would violate due process. The DCA rejected all five of the E/C points on appeal, including (1) that the JCC erred in not admitting the surveillance (the claimant was prejudiced and there had already been a continuance; (2) that the JCC erred in denying amendment of the Pre-Trial (finding that obtaining late surveillance regarding the cane use was a change of litigation strategy, which was insufficient to allow amendment); (3) that the JCC erred in not allowing surveillance representatives to testify in rebuttal re. the claimant’s use of her hand ; (4) that the JCC erred in awarding six months of water therapy vs. six weeks because the Rx was not authenticated (the Rx was received into evidence as an attachment to the PFB without objection among other reasons; and (5) that the JCC erred in awarding psychiatric care because the referral was based upon subjective complaints. The DCA stated that CSE supported that the referral was based upon the claimant’s feelings of despair, for which he diagnosed anxiety, nervousness and adjustment disorder, which satisfies the “objective relevant medical findings” requirement of F.S. s. 440.09(1).
Salus v Island Hospitality Florida Management, Inc., (Fla. 4th DCA 1/15/2020) F.S.s. 440.205/Workers’ Compensation Retaliation/Fact Issues/Summary Judgment
The 3d DCA reversed and remanded the Circuit Court’s grant of Summary Judgment to the employer. The employee sustained a work place accident, received authorized care and discussed the injury and follow up treatment with his employer. After the accident, the employee allegedly threatened several co-workers with physical violence. The employer terminated the employee, noting it had nothing to do with his accident. The employee then filed a claim for retaliatory discharge and two weeks later, filed a PFB. The employer moved for Summary Judgment arguing the claimant could not establish a prima facie case for retaliation because his termination occurred before the PFB filing, and that they had a legitimate, nondiscriminatory reason for terminating the employee. The Circuit judge granted Summary Judgment, stating that the employee’s actions pre-PFB were insufficient to claim benefits, and thus there was no prima facie case of retaliation. The DCA reversed, analyzing the prima facie elements of retaliation: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action. They observed an employee’s failure to file a formal claim for WC benefits until after termination does not automatically preclude a claim for retaliation. The employee’s act of obtaining treatment was sufficient. The DCA further noted that accepting the Employer’s argument would result in absurdity, as an employer could terminate a claimant post -accident, but pre-PFB, and this would never be considered retaliation.
McNair v. Dorsey & Armstrong d/b/a Armstrong Tree Service, (Fla. 1st DCA 1/22/2020) WC Immunity/Estoppel
The DCA affirmed the trial court’s granting of Summary Judgment as to the employer’s ability to claim WC immunity. McNair worked for Armstrong. Dorsey was his co-worker. McNair alleged injury while carrying a branch to a wood chipper. He filed a WC PFB, and the employer filed a Notice of Denial asserting no compensable accident occurred. After a second PFB, the parties completed a Pre-Trial, in which the E/C asserted that no accident/injury had occurred, the claimant was not in the course and scope and that he committed misrepresentation. A month later, the claimant dismissed his PFBs and filed a circuit court negligence action against Dorsey and Armstrong. An amended complaint alleged Armstrong was estopped from asserting WC immunity, since he claimed no accident in the course and scope of employment. Armstrong’s motion for partial summary judgment alleged the claimant was in the course and scope, and the trial judge granted the Motion, finding the exclusive remedy was through WC. The DCA examined WC immunity, and the elements of estoppel, which can bar immunity. Those are 1) a representation of a material fact that is contrary to a later-asserted position; 2) reliance on that representation; and 3) a change in position detrimental to the party claiming estoppel that is caused by the reliance on said representation. They held that a party asserting immunity is not always foreclosed from doing so simply because they deny compensability “especially” when the employer asserts no work accident occurred at all. They distinguished Byerly v. Citrus Publ’g, 725 So.2d 1230 (Fla. 5th DCA 1999) and Coastal Masonry, Inc. v. Gutierrez, 30 So.3d 547 (Fla. 3d DCA 2010), finding that while Armstrong may have asserted WC defenses that a JCC might accept to deny compensability, they did not deny the claimant was an employee. Thus the case could have been brought under WC and the employer was not estopped from asserting immunity.
Please note that the DCA Opinions and Merit Orders contained in this newsletter are non-final until 30 days after their rendition. Until that time, they are subject to amendment, vacation, or other action which may remove or alter some or all of the decision. Please contact any HRMCW attorney if you have a question as to the finality and applicability of an Opinion or Order. We endeavor to include any amendments or alterations to Opinions or Orders that may occur at a later date