Total Cases: 93
Petition for Death Benefits filed by personal representative of deceased at a time prior to the appointment of the personal representative. Petition did not include the Certificate of Good Faith and Fraud Statement that by statute is required in the filing of a petition. JCC dismissed petition and appeal taken. Appellate court reversed. Failure to provide a Certificate of Good Faith and Fraud Statement is no basis upon which a Petition for Benefits should be dismissed. Section 440.105(7) does not provide for the dismissal of a claim for failure to provide the statements with the petition. In this case, the personal representative filing the petition was appointed personal representative after the filing of the petition. Court determined that such appointment related back to the date of the filing of the petition. Accordingly, court determined that JCC's dismissal of petition was in error.
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Claimant was injured in compensable accident but retired from her job prior to when the possibility of entitlement to PTD ripens when either she reaches the maximum number of temporary benefits payable or reaches overall maximum medical improvement. In determining if the claimant was PTD, the JCC erred in denying permanent total disability benefits on the date of the claimant's retirement versus when temporary benefits were exhausted or overall maximum medical improvement was reached. The mere fact of retiring does not foreclose eligibility for permanent total disability benefits.
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Claimant filed a claim against his employer for workers' compensation benefits but later withdrew the petition. After the withdrawal of the petition, the JCC exercised jurisdiction over certain discovery requests made by the employer. The JCC held a hearing on this discovery request and entered an order holding that he had jurisdiction over the employer's discovery efforts within the workers' compensation arena. On appeal, decision of JCC reversed. The court determined that the dismissal of the petition for benefits divests a JCC of jurisdiction. When all claims asserted through a petition for benefits are dismissed, the JCC loses jurisdiction to address those claims. Such dismissal divests JCC of jurisdiction to take any further action in the case.
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JCC erred in denying claim for reimbursement of medical expenses, mileage and co-payments incurred by the claimant following accident on the grounds that the claimant had failed to request this medical care. The claimant's supervisor was aware of the claimant's injuries but the employer failed to provide initial treatment or care and did not notify the carrier of the accident in a timely manner. See Section 440.13(2)(c), Florida Statutes.
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JCC denied claimant's attorney a fee based on the fact that a filed petition for benefits failed to meet the requirements of Section 440.192, Florida Statutes, i.e., the petition for benefits seeking a second medical opinion did not have attached a written opinion from the authorized surgeon with a recommendation for such second opinion. The employer/carrier did not file a motion to dismiss the petition for benefits based on the lack of specificity or answer the petition within 30 days. Eventually, the second opinion was provided. Court determined that the employer/carrier's failure to object to the absence of the attachment was deemed to be a waiver of specificity and ripeness defenses. Section 440.192(2)i, Florida Statutes, does require that whenever a benefit is being claimed as requested by an authorized doctor, the medical report from that doctor should be attached to the petition. However, the requirements of specificity of petition can be waived if there is a failure to object. This same requirement to object applies to benefits claimed in a petition that are not ripe, due and owing at the time of the filing of the petition.
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JCC erred by reserving jurisdiction over claims that were not subject to a pending Petition for Benefits at the time of the final hearing. The JCC may properly reserve jurisdiction over petitions that have been filed but not mediated because mediation is mandatory under Section 440.25(2), F.S.
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Second Notice of Voluntary Dismissal operates as an adjudication of denial of claim or petition for benefits previously the subject of a voluntary dismissal. See Florida Administrative Code Rule 60Q-6.116(2). JCC in this case erred in not applying the two dismissal rule to the instant claim for permanent total disability benefits.
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Employer/carrier took the claimant's deposition prior to the institution of any claim or Petition for Benefits as permitted by Section 440.30, Florida Statutes. The claimant's attorney attended the deposition and in accordance with Section 440.30, Florida Statutes, filed a request for the payment of a reasonable attorney's fee for such attendance. The employer/carrier did not dispute the claimant's attorney's entitlement to a fee but did dispute the amount of the requested fees. As a part of determining the amount of a fee, the employer/carrier took the claimant's deposition. After attending the second deposition, the claimant's attorney filed an amendment to his motion for fees requesting fees for attending the second deposition related to determining the amount of the fee. Also, the claimant's attorney requested payment of expert witness fees for testifying in regards to the amount of the fee. JCC denied fees to the claimant's attorney for attending his own deposition but awarded fees for attending the claimant's deposition.
Since the denial of attorney's fees payable to the claimant's attorney for his attendance at the second deposition was predicated on the JCC's interpretation of the law, not discretionary factors, the standard of review is de novo.
On appeal, court determined that claimant's attorney was entitled to a fee for attending the second deposition related to the amount of attorney's fees payable. The taking of the claimant's attorney's deposition for the purpose of determining a proper fee was related to the taking of the deposition of the claimant prior to the filing of a claim. See Section 440.30, Florida Statutes (2010). Court determined that claimant's attorney's motion to collect attorney's fee due under the authority of Section 440.30, Florida Statutes, is not a claim and therefore, the deposition was taken prior to the filing of a claim entitling the claimant's attorney to a fee for attending his own deposition. A "claim" as used in Section 440.30, Florida Statutes, is properly construed as the filing of a petition for benefits under Section 440.192, Florida Statutes.
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Claimant filed petition claiming benefits and certifying that a good faith effort had been made to resolve the dispute. Employer/carrier filed a Motion to Dismiss based on the fact that no good faith effort had been made to resolve the dispute. JCC dismissed petition. On appeal, court determined that this was error. Section 440.192, Florida Statutes, does not independently give the JCC authority to go behind a counsel's representation of good faith effort to resolve the dispute in a petition for benefits. Florida Administrative Code Rule 60Q-6.125 arguably would permit the employer/carrier to seek sanctions for failure to comply with Section 440.192, Florida Statutes, but the employer/carrier did not meet the procedural requirements of that rule. The JCC erred also in excluding from fees awarded the time spent in regards to the Motion to Dismiss that was filed by the employer/carrier that was inappropriately granted by the JCC.
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Petition for Benefits filed. The issue that was the subject of the petition was subsequently settled between the parties and the mediator was requested to cancel the mediation since the parties had resolved all issues except for attorney fees and costs, over which jurisdiction was reserved by the JCC to determine. A subsequent claim was filed and the question was whether the statute of limitations had run. The JCC determined that the statute had run reasoning in part that the petition that was previously filed was no longer pending because the letter to the mediator indicated a resolution of the issues and therefore, the letter operated as a voluntary dismissal of the earlier petition. On appeal, the court reversed.
The court determined that since all issues had not been resolved since the attorney fee question remained open, the previously filed petition and its continued existence on the issue of attorney fees tolled the running of the statute of limitations. Accordingly, the statute of limitations had not run in this case because the claim for fees and costs remained pending. The JCC erred in dismissing the later filed petition on the basis that it was barred by the statute of limitations.
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Original opinion at 36 FLW D572 - Claimant did not file a Petition for Benefits seeking reimbursement for out of pocket medical expenses. Accordingly, order awarding such benefits reversed. The JCC's finding that the employer/carrier stipulated to determination of this issue at trial was not supported by competent and substantial evidence. Due process bars a ruling on matters not at issue because the parties are entitled to notice in order to fairly present their case. Concurring opinion.
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JCC entered order approving a life care plan that had been prepared by a certified life care planner for various medical benefits plus medical care/costs to be incurred in the future. The treating physician had approved the life care plan that had been prepared. On appeal, JCC's order reversed. The future benefits were not in default and ripe, due and owing. In addition, the JCC erred in approving the life care plan as opposed to awarding the benefits recommended in the life care plan. A life care plan is not in itself a benefit recognized under the workers' compensation law. The JCC also erred by expressly stating that the employer/carrier would have to modify the order before it could deny the benefits recommended in the life care plan although those benefits were not ripe, due and owing.
The JCC also ordered attendant care. The applicable statute for awarding compensation for attendant care is the statute in effect at the time the compensable care was given. The order failed in this case to specify the type of assistance and the level of care required. An award of attendant care providing a safe environment for the claimant is too vague to adequately describe the type of care required. In addition, financial management of the claimant's affairs is not a compensable form of attendant care. Section 440.13(2)(b), Florida Statutes, requires that the prescription itself specify the time periods for such care, the level of care required, and the type of assistance required. Passive or on-call attendant care is awardable when medically necessary. The testimony of a life care planner is not competent to establish the medical necessity for such attendant care.
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The JCC found that the employer/carrier timely authorized an alternative physician when the claimant made his initial request. Claimant failed to attend an appointment with the physician as authorized. Court determined that JCC did not err in denying the claimant's request for a change in the treating physician under these facts.
In accordance with Florida Administrative Code Rules 60Q-6.116(2), the second voluntary dismissal of a claim shall operate as an adjudication of denial of any claim previously the subject of a voluntary dismissal. JCC ruled that if the same claim/petition files multiple claims for the same benefit, the dismissal of that claim/petition acts an adjudication of the multiple claims for the same benefits. Under this rule for there to be an adjudication of denial, the second dismissed petition must have been dismissed previously, establishing the need for two separate documents dealt with on two separate occasions. The adjudication of denial as found in Rule 60Q-6.116(2) requires two separate documents dealing with the same benefit filed on two separate occasions. In this case, two requests for the same benefit (in this case authorization of an alternate physician) were dismissed simultaneously as they were stated in a single Petition for Benefits and since there were no separate documents filed at separate times, the rule above noted did not apply.
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A JCC’s ruling in a Summary Final Order is evaluated using the summary judgment standard; thus, the ruling is reviewed de novo and all reasonable inferences must be drawn in favor of the party opposing summary judgment.Petitions for Benefits cannot be dismissed if the claimant does not sign a fraud statement or in the Petition for Benefits provide an OJCC number of verified Motion for Assignment of a substitute identification number. See Section 440.105(7), Florida Statutes, and Florida Administrative Code Rules 60Q-6.103(1)(d) and 6.105(4). Petitions for Benefits may only be dismissed for lack of specificity under Section 440.192, Florida Statutes.
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Claimant filed multiple Petitions for Benefits and in one document dismissed all pending petitions. A claim or petition may be dismissed by the claimant or petitioner without an order by filing a notice of voluntary dismissal. A second notice of voluntary dismissal operates as an adjudication of denial of any claim or petition for benefits previously the subject of a voluntary dismissal. See Rule 60Q-6.116(2)FAC. The JCC in this case declined to apply this "two-dismissal rule" based on the fact that only a single notice of voluntary dismissal was filed.
Court determined that multiple claims can be dismissed by filing a single pleading. Accordingly, the claimant’s single filing constituted multiple notices of voluntary dismissal. The JCC erred in concluding that since only one piece of paper was filed to dismiss multiple claims, Rule 60Q-6.116(2)FAC would not apply. Appellate court determined that the two dismissal rule barred awards for benefits for certain periods of time.
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JCC entered a notice of administrative closure of case indicating that the case would be closed unless a verified petition for attorney’s fees was filed within forty-five days. The notice also advised that all pending petitions for benefits would be subject to dismissal without a hearing unless a party filed an objection. Thereafter, an order closing file was entered by JCC and all petitions for benefits dismissed.
A Verified petition for attorney’s fees was filed but not within the time periods required in the notice of administrative closure of case. Court determined that JCC did not have the authority, pursuant to either statute or rule, to set a time limitation for filing the verified petition for attorney’s fees. Such authority was not granted in the workers’ compensation statute and accordingly, the JCC had no such authority. Gillislee v. FPL, EBY Construction, 31 FLW D1461 dated May 21, 2006.
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Claimant suffered two accidents while employed by the employer, i.e., March 1, 2003 and August 13, 2003. A Petition for Benefits was filed only for the March 1, 2003 accident. Medical evidence supported the fact that the claimant’s injuries were associated with the August 13, 2003 accident. Court determined that JCC erred in awarding benefits to the claimant when there was no medical evidence supporting the causal relationship between the only claimed accident date and the resulting injuries. Although the JCC may consider lay testimony in addition to medical evidence to determine major contributing cause, the lay testimony in this case supported the doctor’s conclusion that it was the second accident (August 13, 2003) that caused the claimant’s medical problems and not the first claimed accident.
Court determined that the claimant and employer/carrier had not tried by consent the issue of the compensability of the claimant’s August injury. An issue in a workers’ compensation case may be tried by consent of the parties even if the issue was not listed in the claimant’s original petition for benefits. However, in this case, there was no evidence that the second accident was tried by the consent of the parties.
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Claimant voluntarily dismissed Petition for Benefits. Employer/carrier did not agree to the dismissal and requested the JCC to determine whether the claimant made false, fraudulent or misleading statements for the purpose of securing workers’ compensation benefits in violation of Section 440.105, Florida Statutes. JCC determined that she had no jurisdiction to make that determination once the claimant had voluntarily dismissed the Petition for Benefits. Thereafter, employer/carrier filed a Petition requesting a determination as to whether such false, fraudulent or misleading oral or written statements were made for the purpose of securing workers’ compensation benefits in violation of Section 440.105(4)(b), Florida Statutes.
Court determined that JCC did not have jurisdiction to rule on the request for a determination of fraud made by the employer/carrier in the absence of a pending Petition for Benefits filed by the claimant. Any JCC determination as to false or fraudulent statements made by the claimant pursuant to the request by the employer/carrier was deemed error since there was no pending Petition for Benefits filed by the claimant.
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Court determined that it was error to strike the petition for benefits filed by the claimant as being insufficient for failure to include the claimant’s social security number. See Cagnoli v. Tandem Staffing, 888 So.2d 79 (Fla. 1st DCA 2004).
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Court determined that it was error to strike the petition for benefits filed by the claimant as being insufficient for failure to include the claimant’s social security number. See Cagnoli v. Tandem Staffing, 888 So.2d 79 (Fla. 1st DCA 2004).
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Court determined that JCC did not have the authority to hold the owner of a corporation liable for workers
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Court determined that requiring an injured worker to list his social security number as required by Section 440.192, Florida Statutes, violates the Federal Privacy Act of 1974, 5 USC Section 552. Judge erred in dismissing Petition for Benefits for failure to list social security number.
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An order of a JCC dismissing a petition for benefits without prejudice based on failure to comply with certain statutory pleading requirements is a non-final, non-appealable order.
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Court determined that a petition for benefits seeking palliative care and treatment only, as opposed to remedial care and treatment, is subject to the managed care grievance procedures. Because the claimant had not exhausted the managed care grievance procedures prior to the filing of his petition, the JCC lacked the jurisdiction to consider the claim.
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Claimant requested medical care which was never responded to by the adjuster or managed care arrangement (MCA). Thereafter, petition for benefits filed and the employer/carrier defended on the grounds that the claimant had not exhausted the MCA grievance procedures prior to the filing of a petition and accordingly, the Judge of Compensation Claims did not have jurisdiction to award medical care. Court determined that the failure of the employer/carrier to respond to the request for medical treatment could not be used as a means of raising jurisdictional issues as to the ability of the claimant to file a petition for benefits. The court also ruled that the claimant's letter for medical care constituted a grievance and the employer/carrier's failure to act within the time constraints for responding to such request created a legal conclusion that the claimant exhausted the required grievance procedures prior to filing a petition for benefits. (On Motion for Rehearing and Rehearing En Banc denied.)
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Employee of employer filed civil cause of action
against employer and manufacturer/designer of equipment
where claimant was injured. The manufacturer of the
equipment filed a claim for indemnification against the
employer alleging intentional misconduct. The
claimant's claim against the employer also alleged
intentional misconduct on the part of the employer in
removing a safety feature on the machine that allegedly
caused the injury to the claimant.
Employers are generally afforded immunity from common
law negligence suits filed by employees. An exception
to this immunity however is for intentional torts.
Employees and third parties alike may assert an
intentional tort claim against an employer otherwise
immune from common law claims of negligence. To prove
the existence of an intentional tort, an employee or
third party must allege that the employer either
exhibited a deliberate intent to injure or engaged in
conduct which was substantially certain to result in
injury or death. The Supreme Court in reversing
several previous decisions, stated in the case of
Turner v. PCR, Inc., 754 So.2d 683, that although
"substantial certainty" requires a showing greater than
gross negligence, the appropriate standard is
"substantial certainty" and not the heightened "virtual
certainty" standard used or applied by some district
courts.
The court in the case of Turner, supra, rejected the
notion that substantial certainty of injury required a
showing that the employer had actual knowledge that its
conduct would cause the employee's injury. There is no
need for the injured worker to prove actual intent on
behalf of the employer. Instead, an employee need only
show that a reasonable person would understand that the
employer's conduct was substantially certain to result
in injury to the employee.
The court ruled in this case that the
manufacturer/designer of the equipment in question
satisfied its burden of attempting to plead a cause of
action for contribution against the employer alleging
intentional conduct that was substantially certain to
result in injury. The court also determined that the
trial court had abused its discretion in denying the
manufacturer/designer's motion for leave to amend its
crossclaim to assert a contribution claim against the
employer. Amendments to pleadings should be readily
given by the court unless there is a showing that the
amendment would prejudice the opposing party, the
privilege to amend had been abused, or an amendment
would be futile. None of these obstacles to amendment
were present in this case.
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The filing of a motion for emergency conference
pursuant to Section 440.25(4)(8), Florida Statutes,
satisfied any pleading requirements under Section
440.192, Florida Statutes, i.e., notice and filing
requirements may be excused in emergency situations.
Since the employer/carrier refused to authorize
medically necessary emergency care even after the
motion for emergency conference was filed, attorney's
fees were payable. Concurring opinion.
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Claimant requested medical care which was not provided
by employer/carrier. Thereafter, Petition for Benefits
filed and within 14 days of the date of the petition,
medical treatment was provided. Court determined that
attorney's fee was due payable by the employer/carrier
even though treatment had been provided within 14 days
of the Petition for Benefits. When a specific request
for reasonable and necessary medical care is made, the
employer/carrier is under an obligation to provide the
benefits within a reasonable time, whether or not a
petition for medical benefits is ever filed. Since
medical care provided, attorney fee is due payable by
employer/carrier.
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The issue in this case is whether the
employer/carrier's denial of the claimant's Request for
Assistance entitled the claimant's attorney to a fee
payable by the employer/carrier even though the
employer/carrier timely paid all benefits following
claimant's filing of a petition for benefits.
Initially, following the filing of a Request for
Assistance, a Notice of Denial was filed by the
employer/carrier. The claimant subsequently filed a
Petition for Benefits and the employer/carrier accepted
the claimant as permanently and totally disabled within
the 14 day statutory time frame. No fee was payable in
this instance by the employer/carrier. The Request for
Assistance procedure is part of the informal dispute
resolution process. Pursuant to Section 440.191(2)(d),
Florida Statutes, there is no liability for attorney's
fees for services rendered in connection with the
informal dispute resolution process.
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JCC ordered benefits to claimant which were not claimed
in the Petition for Benefits or addressed in the
pre-trial stipulation. While the court recognized that
a claim listed in the parties' pre-trial stipulation
can be considered even if it is not identified in the
Petition for Benefits, there is still a requirement
that the employer/carrier be put on notice of the
claims being filed and be given an opportunity to
defend. In this instance, there was no claim for the
benefits sought either in the petition for benefits or
in the pre-trial stipulation. Accordingly, the order
awarding unclaimed benefits reversed. Although a claim
can be presented at the final hearing for benefits not
claimed in the petition or in the pre-trial stipulation
if done so by the consent of the parties, there was no
agreement in this case that such benefits could be the
subject of the hearing and resulting order.
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Sections 440.192(2) and (4) set forth basic information
which a petition for benefits must identify or contain
on its face. In the event that such information is not
contained on the face of the petition, dismissal
without prejudice is mandated. Claimant's attorney
argued that the allegations of the petition were in
substantial compliance with the statutory requirements
since the information presented in the petition was
sufficient information to enable the employer/carrier
to understand the benefits sought. Notwithstanding
this argument, the court determined that the
allegations of the petition did not meet statutory
standards and accordingly, the JCC did not err in
dismissing the petition since.
Court determined that attorney's fees were not due the
claimant's attorney in this instance payable by the
employer/carrier. The claimant was denied permanent
total entitlement and thereafter accepted as PT within
the 14 day time period provided by Section 440.192(8),
Florida Statutes (1994). In addition, no fee was
payable by the employer/carrier since Section
440.192(7), Florida Statutes (1994) prohibits an award
of an attorney's fee payable by the employer/carrier
for services expended or costs incurred prior to the
filing of a petition that does not meet the
requirements of Section 440.192, Florida Statutes.
In footnote to opinion, court determined that it had
jurisdiction to review the non-final order dismissing
the petition for benefits.
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JCC dismissed third amended petition for benefits
without prejudice and was allowed to amend within
twenty days as directed by the judge or to obtain leave
of court to file another claim after the twenty day
period. The filing of a request for assistance for a
related claim did not excuse non-compliance with the
order of the JCC. Even though the claimant did not
request the entry of a final order in order to take an
appeal, this did not preclude review of the dismissal
of the third amended petition without prejudice which
was a non-final order. Court determined that third
amended petition complied with statutory requirements.
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In following the case of North River Insurance Company
v. Wuelling, 683 So. 2d 1090, court determined that
employer/carrier's failure to timely file a notice of
denial did not forfeit their rights to contest
compensability of an alleged on-the-job accident.
Employer/carrier's failure to file timely notice of
denial was the procedural equivalent of denying a
petition for benefits.
Temporary total disability and medical benefits found
properly payable through the date at which time the JCC
found the claimant to have reached maximum medical
improvement.
Dissenting opinion. Dissenting judge opined that JCC
erred in establishing MMI date. There was a
controversy between two doctors as to the correct MMI
date. Although a JCC need not generally explain why
the testimony of one doctor is accepted over that of
another, an explanation is required if the reason is
not apparent from the record or if it appears that the
JCC overlooked or ignored evidence. This rule is
particularly applicable in regards to the establishment
of an MMI date. A determination of MMI should be based
upon a clear explicit expression of that fact set forth
in medical records or medical opinion testimony.
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In following the case of North River Insurance Company
v. Wuelling, 683 So.2d 1090, court determined that
carrier's failure to file a notice of denial did not
forfeit the carrier's right to contest compensability.
Failure to respond to the receipt of a petition for
benefits operated not as an admission of compensability
but as a denial of every allegation in the petition.
Failure to act does not alter the timetable for giving
notice of the mediation conference or actually holding
the conference. In those situations where the
employer/carrier fails to timely respond to a petition
for benefits, this is tantamount to the same activities
of an employer who timely denies a petition for
benefits. Concurring opinion.
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The employer/carrier appealed an order which determined
compensability in favor of the claimant on the basis of
Waffle House v. Hutchinson, 673 So. 2d 883 (Fla. 1st
DCA 1996). Appellee filed a confession of error noting
that the court receded from the Waffle House opinion in
Waffle House v. Wuelling, 683 So. 2d 1090 (Fla. 1st DCA
1996). JCC's order reversed.
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(en banc) Court receded from its opinion in Waffle
House v. Hutchinson, 673 So. 2d 883 (1st DCA 1996) and
determined that the employer/carrier does not
automatically accept compensability of a claim by its
failure to timely file a notice of denial to a petition
for benefits. Although not relevant to the findings in
this case, the court suggests that the failure to file
a timely notice of denial would preclude denial of a
claim by the employer/carrier had the employer/carrier
elected to "pay and investigate" a claim for a period
of 120 days as provided for in Section 440.20(4),
Florida Statutes.
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An order dismissing a claim for failure to exhaust
procedures for informal dispute resolution and for
failure to comply with statutory pleading requirements
is neither an appealable non-final order or an
appealable final order.
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JCC denied medical only petition for attorney's fees
based on the fact that the claim for such medical
benefits contained an incorrect date of injury contrary
to the provisions of Section 440.19(1)(d), Florida
Statutes (1989). On appeal, court reversed stating
that the claim sufficiently appraised the
employer/carrier of the need for treatment and the
actual date of injury. Accordingly, attorney's fees
awardable.
The employer/carrier had actual knowledge of the
correct date of accident as evidenced by medical
reports attached to the initial claim which stated the
correct date of accident. The claimant's attorney had
also written three letters to the carrier requesting
authorization of medical care, all of which contained
the correct date of accident. The court rejected the
judge's determination that the correct date of accident
must be contained on the claim for benefits. If
information contained within a claim provides an
employer with reasonable information permitting
ascertainment of the correct date of accident or if the
employer/carrier is otherwise provided with actual
notice of the correct date, the claim should not be
dismissed.
The legislative purpose for requiring the employee to
furnish information designated in Section 440.19(1)(d),
Florida Statutes, is to protect an employer from being
unfairly disadvantaged in defending a claim for
benefits. Once the information, however, is adduced,
from which one can decide that an employer has
reasonable or actual notice of facts required to defend
the claim, the legislative requirement has been met and
there is no showing of prejudice.
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Notice of denial filed by employer/carrier questioning
the compensability of a stroke suffered by the claimant
allegedly as the result of stress on the job.
Thereafter, a claim for benefits was filed and the
employer/carrier did not file a notice of denial to the
petition. Based upon the decision of Waffle House v.
Hutchinson, 21 FLW D1018 (1st DCA 1996), the court
determined that the employer/carrier's failure to
timely deny the petition for benefits as required by
subsection 440.192(8) was deemed to be an acceptance of
the compensability of the alleged injury. The denial
of the original notice of injury did not stand over as
against the petition for benefits filed.
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Section 440.34(3)(b), Florida Statutes, allows for the
payment of a reasonable attorney's fee where the
employer/carrier fails or refuses to pay a claim within
21 days of the filing of the claim. Section
440.19(1)(e) states that attorney's fees are not
payable if the claim for benefits does not satisfy the
requirements of that subsection. At the time the
petition for benefits was filed for permanent total
compensation in this case, the claimant was not
permanently and totally disabled but became so 12
months thereafter. Court determined an award of an
attorney's fee in this instance was error since at the
time the petition for benefits was filed, the claim for
permanent total compensation had not matured. While
benefits may mature and become due following the filing
of a claim thereby commencing the running of the 21 day
period for payment, no determination of the passage of
21 days without payment could be made on the record in
this case because the time would not commence until the
date of the hearing and the close of the evidence.
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Employer/carrier initially accepted claimant's injuries
as compensable. Approximately a year thereafter, the
employer/carrier raised the Martin v. Carpenter defense
which was stricken by the JCC pursuant to Section
440.192(8), Florida Statutes, which requires the
employer/carrier to either commence payment of
requested benefits or file a Notice of Denial within 14
days. Section 440.192 took effect on January 1, 1994.
Previous law required the filing of a notice to
controvert within 21 days of the receipt of an
acknowledged claim from the Division or be subject to
the payment of a penalty. Court determined that
Section 440.192, Florida Statutes, was procedural and
because of the fact that the employer/carrier did not
deny the claim within 14 days or pay benefits, they
were thereafter precluded from denying the
compensability of the claim. See Waffle House v.
Hutchinson, 21 FLW D1018(Fla. 1st DCA 1996).
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Claimant allegedly suffered on-the-job accident.
Employer filed notice of denial. Thereafter, petitions
for benefits were filed and the employer failed to file
notices of denial in response to these petitions.
Notwithstanding the fact that an initial notice of
denial was filed, the court found that the failure to
file notices of denial to the petitions required the
employer/carrier to pay the claimed benefits,
notwithstanding potential defenses that could be
asserted. Section 440.192(8), Florida Statutes,
requires the employer/carrier to file a notice of
denial or pay benefits within 14 days after receipt of
a petition for benefits by certified mail. A carrier
that neither pays nor timely denies compensability is
deemed to have accepted the employee's injuries as
compensable.
Subsection 440.192(8), Florida Statutes, does not
impact the substantive rights of the parties or alter
their statutory entitlement to benefits. Accordingly,
the changes in this provision are procedural as opposed
to substantive and have retroactive application. (Case
subsequently in part overruled. See the North River
Insurance Company v. Wuelling, 21 FLW D2492.)
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Claim for Benefits filed seeking permanent total
compensation. In the pre-trial stipulation, the
claimant included in addition to the PTD claim, claims
for correction of his average weekly wage as well as
medical care and treatment. Motion to Dismiss filed by
employer/carrier for claims for average weekly wage
recalculation and medical care. It was the position
of the employer/carrier that claimant had not filed a
Request for Assistance and had not exhausted the
procedures for informal dispute resolution as provided
in Section 440.191, Florida Statutes, regarding the
average weekly wage and medical claims. Court allowed
the amendment to the claim as reflected in the
pre-trial stipulation without the need for referral to
the employee assistance and ombudsman office.
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Order of judge requiring that the employer/carrier
provide the claimant with an independent medical
examination at the employer/carrier's expense was not a
departure from the essential requirements of law. The
claimant is not required to exhaust his administrative
remedies in dispute resolution process of the employee
assistance and ombudsman office prior to filing a
request for an IME to be paid by the employer/carrier.
The Florida Workers' Compensation Rules of Appellate
Procedure do not provide for an appeal of a non-final
order. The court in this instance however elected to
treat this appeal as a Petition for Writ of Certiorari.
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Under Section 440.30, Florida Statutes, an attorney's
fee is due and payable to the claimant's attorney if
the employer/carrier takes the deposition of the
claimant prior to the filing of a claim. In this
instance, the deposition was taken of the claimant by
the employer/carrier after a request for assistance had
been made but before a formal petition for benefits had
been filed. Court determined that the request for
assistance did not constitute a claim and accordingly,
since the claimant's deposition was taken before the
filing of the claim, an attorney's fee was due for the
claimant's attorney's attendance at the claimant's
deposition.
The request for assistance does not function as notice
of the commencement of litigation but is an alternative
approach for the claimant to seek resolution without
beginning the litigation process and acquiring the need
for legal services. The filing of a "claim" in Section
440.30, Florida Statutes, should be construed as the
filing of a petition for benefits under Section
440.192, Florida Statutes and not the filing of a
request for assistance under Section 440.191, Florida
Statutes. JCC erred in determining that a request for
assistance is the claim under Section 440.30, Florida
Statutes. Counsel for the claimant prepared for and
attended the deposition of the claimant prior to the
filing of a claim and therefore is entitled to a
reasonable attorney's fee pursuant to Section 440.30,
Florida Statutes.
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Claimant injured in 1991. Claim for permanent total
benefits filed and simultaneously, with the filing of
this claim, a Request for Assistance was filed with the
EAOO office pursuant to Section 440.191, Florida
Statutes (1994). Docketing judge dismissed claimant's
Petition for Benefits, without prejudice, based upon
the failure to meet the specificity requirements of
Section 440.192(2), Florida Statutes, and for failure
to include a certificate indicating that a good faith
effort had been made to resolve the dispute as required
by Section 440.192(4), Florida Statutes.(1994)
Claimant not accepted by employer/carrier as
permanently and totally disabled within 21 days of the
filing of the claim that had been dismissed by the
docketing judge. Because this accident occurred prior
to the 1994 changes in the workers' compensation law
relating to the payment of attorney's fees, the 21 day
rule applied and even though the claim for benefits was
dismissed under the 1994 amendment as being
non-specific, the 21 day rule began when the initial
claim was filed which did in fact meet the specificity
requirements of law applicable as of 1990. Attorney's
fees awarded since claimant not accepted as PT within
21 days of the filing of the claim for benefits.
Statutory changes relating to attorney's fees are
substantive and the law in effect at the time of the
accident applies.
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JCC erred in determining that he lacked jurisdiction to
determine the merits of a Motion to Dismiss a petition
for benefits on the ground that the docketing judge had
already ruled on the sufficiency of the petition
pursuant to statute. See 440.45(3), Florida
Statutes.
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Claimant was entitled to attorney's fee despite the
fact that the initial claim for wage loss benefits
failed to meet the specificity requirements of Section
440.19, Florida Statutes. The employer/carrier failed
to move to dismiss the claimant but rather responded to
the claim on the merits more than 21 days after
receiving notice of the claim and litigated the claim
to resolution. If the claim is non-specific, the
employer/carrier has the burden of filing a motion to
dismiss to challenge the sufficiency of the claim under
subparagraph 4 of Section 440.19(1)(e), Florida
Statutes. If the employer/carrier does not move to
dismiss a non-specific claim, it must be assumed that
the claim sufficiently puts the employer/carrier on
notice of the benefits sought by the claimant to make
an informed decision with respect to the claim. If the
motion to dismiss is granted, under subparagraph 5 of
Section 440.19(1)(e), Florida Statutes, attorney's fees
may be payable under Section 440.34 but would preclude
the award of any fee to the claimant's attorney for the
time spent defending the motion to dismiss and would
not include the time that the filing of the initial and
amended claim exceeded the reasonable time for filing a
specific claim.
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Competent and substantial evidence supported the
judge's findings that the employer/carrier did not
offer reasonable alternative care in response to the
treatment requested by the claimant. Accordingly, the
claimant's chosen doctor deemed to be authorized.
Employer/carrier considered to be placed on notice of a
claim for temporary total benefits where the filed
claim sought "full temporary partial wage loss benefits
without the use of the 80/80 rule".
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Supreme Court in the opinion of { Barragan v. City of Miami Beach 545 So.2d 252 Case_503} determined that a City of Miami ordinance allowing for an offset against city pension benefits for workers' compensation received was unconstitutional. This court held that the Barragan decision had retroactive effect to 1973 when Section 440.09(4) was repealed. Ordinarily, a claim that is ripe for adjudication is waived if not litigated or considered in a hearing. An exception to this rule, however, is if the law has changed since the initial hearing or if there has been an intervening decision since the initial hearing that would change the benefits payable. At the time of the first hearing, a claim for benefits was ripe for adjudication but it was not claimed. If claimed, those benefits would have been denied based upon the law and the court decisions at the time. Thereafter, a court decision was entered allowing for the benefits to be paid. Court determined that the claim for benefits could be asserted since the laws had been changed since the first hearing and benefits were now payable.(On Motion for Rehearing-Original Opinion 17 FLW D1473)The case of {uldb Barragan v. City of Miami, 545 So.2d 252 Case_503} precluded the City of Miami from deducting workers' compensation benefits received by the claimant from disability benefits payable under a pension plan established by the City. Court determined that the Barragan opinion had retroactive effect and applied to compensable injuries occurring after July 1, 1973. Claimant failed to assert in prior hearing that the City of Miami could not take an offset against pension benefits payable for workers' compensation benefits received. Court determined that the failure to take this position in prior hearing did not preclude him from thereafter asserting the inappropriateness of the offset. At the time of the original hearing, caselaw did not permit the offset. At the time of the subsequent hearing, the law disallowed the offset.If an employer fails to pay compensation benefits when due, it is mandatory that a 10% penalty be assessed. The penalty can be excused only if a timely and appropriate Notice to Controvert has been filed or the employer's non-payment has resulted from conditions over which the employer had no control. In this case, benefits were not paid because of the existing law at the time the employer did not pay. However, by caselaw, that law changed. Court determined that a penalty was due since neither of the two exceptions to the payment of penalties as above noted were applicable. The burden of proving that penalties are not due based on the above two stated exceptions to the award of penalties is on the employer/carrier. Issue certified to the Supreme Court.{uldb Barragan v. City of Miami, 545 So.2d 252 Case503} stated that an offset of workers' compensation benefits received against pension benefits of the city could not be taken as long as the claimant was not paid in excess of his average weekly wage at the time of the accident. Court refused to allocate excess benefits paid over average weekly wage between the City's pension fund and the workers' compensation benefits. Because of the fact that the employer was self-insured, the allocation of benefits payable is an internal municipal matter appropriately resolved by the City alone.
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Section 440.19(d) Florida Statutes (1987) requires that an order dismissing a claim for lack of specificity must state with particularity why the claim is not specific. If dismissed for lack of specificity the claimant would have 60 days from the date of the order to amend the claim. In this case it was error to dismiss the claim without allowing 60 days to amend. In addition the motion to dismiss for lack of prosecution should have been denied where there had been a prior application for hearing filed.
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Court determined that it was error to deny attorney's fees for securing chiropractic care on the ground that no formal claim for chiropractic care had been filed. A claim had been filed which requested remedial care and attendant. Court determined that this was sufficient to raise the issue of the claimant's need for chiropractic care.
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Employer/carrier filed motion to dismiss a filed claim arguing that it failed to specify the benefits due and it requested benefits not yet due. Judge of compensation claims granted motion without prejudice. This order was not final and therefore was unappealable. In this case if the claimant is unwilling or unable to amend his claim to correct the defects raised in the motion to dismiss his proper course is to so advise the Judge of Compensation Claims and request entry of a final order of dismissal without prejudice which may be appealed.
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The award of rehabilitation benefits was error where no claim for rehabilitation had been filed.JCC awarded claimant attendant care at the rate of $200.00 per week. This award was reversed on appeal. There was no finding concerning the number of hours needed for attendant care the rate of pay or the quality of care required by the claimant. There was competent and substantial evidence suggesting the need for some attendant care but the JCC failed to inform the parties as to the extent of the need. The JCC also erred in failing to exclude the time during which claimant was hospitalized.
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Award of attorney's fees on basis of bad faith was premature where bad faith attorney's fees were not specifically requested and noticed for hearing and there was no opportunity to present evidence on the issue.Claimant suffered psychiatric difficulties following a series of injuries on the job. Case remanded to judge for a finding of whether the claimant's psychological condition was related to which of several injuries that occurred on the job.
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Grieco v. Lehigh Corp.
549 So.2d 748, 14 Fla. L. Week. 2338, (Fla.App. 1 Dist., Oct 03, 1989)
1989-10-03
Procedure
The only basis upon which a Motion to Dismiss can be granted in workers' compensation matters is if the claim fails to comply with Section 440.19(1)(d) Florida Statutes relating to specificity and if there has been a lack of prosecution pursuant to Rule 4.110(b) Florida Workers' Compensation Rules of Procedure. Court determined that it was error for a deputy commissioner to grant the Motion to Dismiss in this case on the basis that the claimant was receiving his salary during the period of claimed temporary total compensation.Sections 440.14(3) or Section 440.20(14) might support a setoff against compensation payable for periods of time that the claimant was continuing her regular salary. However the employer/carrier would have to assert one or both of these statutes as a defense and would have the burden of proving the entitlement to an offset under either section. If the judge found that the employer/carrier was entitled to such an offset the judge would be required to set forth findings of facts supporting this result including claimant's average weekly wage and the amount of credit to which the employer and carrier would be entitled.
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Garza v. Jordan Farms
532 So.2d 720, 13 Fla. L. Week. 2177, (Fla.App. 1 Dist., Sep 20, 1988)
1988-09-20
Procedure
Section 440.19(1)(d) Florida Statutes allows the claimant to file an amended claim within 60 days if his claim is dismissed because of vagueness. This 60 day period does not extend the time for filing a claim and if the original claim that was dismissed because of vagueness was not filed within the statute of limitations' time period the 60 day provision would not extend the time for filing an otherwise untimely filed claim. The purpose of this statutory provision is to allow the claimant an additional 60 days to refile a claim without interference with the statute of limitations in those situations where the claim was initially timely filed. See statutory changes to S440.19
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Court reversed deputy commissioner's findings as to the amounts earned by the claimant in concurrent employment. The only testimony received by the deputy commissioner was from the claimant's father who stated that the office told me the amounts earned by claimant. This constituted hearsay evidence insufficient to support a determination as to the amounts earned in concurrent employment. No company records or income tax returns from the concurrent employment were presented as evidence.Court determined deputy commissioner erred in requiring the furnishing of various health programs since these benefits were not claimed either in the claim for benefits application for hearing notice of hearing pre-trial stipulation or the summary of issues discussed at the outset of the final hearing.
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Claimant originally filed claim for temporary total or temporary partial. Deputy commissioner ordered temporary total and this decision was reversed on appeal. Thereafter claimant claimed temporary partial benefits. Court determined that the second claim for temporary partial benefits for the same period of time that temporary total had been reversed on appeal was permitted and not barred by the doctrine of Res Judicata. Claim for temporary partial benefits was not adjudicated in first hearing.
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Treating physician has a right to assert an independent claim for payment of his medical services. Doctor has such a right even though the compensability of the workers' injury has not yet been determined by the deputy commissioner. In this case the doctor was asserting the payment of his bill based upon the specific authorization from the carrier for such treatment.
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Rule 4.100(a)(2) Florida Workers' Compensation Rules of Procedure allows for amendments to claims and defenses at a pre-trial conference. The language in this rule allowing for amendments is compulsory. This rule seeks to encourage such amendments at the pre-trial. Claimant should be permitted to amend his claim at the pre-trial conference.Deputy commissioner erred in dismissing claimant's claim for benefits because of the claimant's refusal to stipulate at pre-trial conference to an accident date. The date of accident was disputed in good faith.When amendments to a claim are made at a pre-trial conference the deputy commissioner can move the hearing to another date to allow proper response to the amendment. It is not necessary for the deputy commissioner to secure the permission of the attorney for the other party.
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Claimant is not required to file a claim against a specific carrier in order to collect workers' compensation benefits. An injured worker has no responsibility to file a claim against each insurer associated with an employer; rather the worker is only required to file one claim with the Division of Workers' Compensation.Court determined there was compentent substantial evidence to support the Deputy's finding that the carrier had received proper notice of hearing.There is a presumption that a properly mailed notice of hearing was received by the parties. Evidence must be presented by the complaining party of no notice in order to contradict presumption.Deputy in two prior hearings had determined that Niagara Fire Insurance Company was the carrier for the employer. In third hearing Continental Insurance Company was named as the carrier. For a period of eight (8) months having had knowledge of the alleged wrongly named carrier Continental failed to correct this. The court ruled that Continental was estopped in asserting they were not carrier in this case. In workers' compensation cases the rule relating to estoppel should be applied where an obvious wrong would otherwise result even if estoppel is not plead according to the requirements of law applicable to civil cases.
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Court determined it was error for deputy commissioner to award permanent total disability benefits because the application for hearing notice of hearing and pre-trial stipulation failed to provide notice to the employer and carrier that these benefits were being claimed.Court found heart attack of claimant compensable and found competent and substantial evidence to suppport deputy's finding to this effect. Claimant suffered a battery while employed as chief of police and thereafter was subjected to stresses of job. Court determined one incident of a battery to the claimant constituted sufficient acts of an identifiable accident to create a compensable heart attack.
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Attorney's fees can only be awarded to the claimant or injured worker. A claim for attorney's fees filed by a doctor who sought the payment of his bill is not payable.A treating doctor or chiropractor has standing in his individual capacity to bring a claim for the payment of medical bills.If the claimant makes a request for alternate medical care pursuant to Section 440.13(2)(b) F.S. the carrier must select a list of different doctors from whom the claimant can seek treatment. Only the injured employee can make such a request however for alternate medical care. A doctor or other health care provider cannot make the request for the claimant.A treating doctor or chiropractor has standing in his individual capacity to bring a claim for the payment of medical bills.Once an order has been entered by the deputy commissioner deauthorizing a particular doctor the burden of seeking a change in the status quo is shifted to the claimant requiring him to show good cause why the deauthorized care should be reauthorized.
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While the claimant's untimely filing of wage loss forms may be excused due to the employer/carrier's negligence there is no reason to waive the filing requirements entirely. Without wage loss benefit forms it is impossible to determine accurately the amount of wage loss benefits due unless and until the employer/carrier is informed of the amount of wages if any actually earned by the claimant during the claimed period of wage loss benefits.
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A claims evaluation rendered by the Division is relevant to the question of whether the employer/carrier acted in bad faith when they declined to voluntarily accept the claimant as permanently and totally disabled. In this case specialist recommended the payment of wage loss benefits to the claimant as opposed to permanent total compensation and the employer/carrier paid wage loss as recommended. Court determined that this should be considered in determining if bad faith exists. Claimant being paid wage loss benefits when claim for permanent total compensation made by claimant's attorney. DC subsequently found claimant permanently and totally disabled as claimed and awarded an attorney fee based on bad faith. First District Court of Appeal reversed bad faith finding and determined that attorney fees are not payable based on bad faith each time the DC rules contrary to a position taken by the employer/carrier. Court determined that employer/carrier had made a reasonable investigation as to benefits due claimant and accordingly bad faith was not present. This was particularly true in view of the fact that the claimant was receiving wage loss compensation during the period the employer/carrier was investigating the permanent total claim. Court did determine also that when a PT claim is made a more extensive investigation is needed than of lesser type claims. Also the specialist's report could be considered by Deputy in determining if bad faith exists.Although a wage loss request need not be submitted on any particular form and need not be technically perfect or complete down to the last detail there still is a requirement that a request of some type for wage loss benefits be filed.
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If the employer/carrier takes the claimant's deposition and no claim has been filed then the employer/carrier must pay the claimant's attorney a reasonable fee for attending the deposition pursuant to Section 440.30 F.S. Court determined that the employer/carrier's filing of a Notice to Controvert did not constitute the filing of a claim and accordingly attorney fees were awarded to the claimant's attorney for attending his deposition.Claimant injured in alleged compensable accident and following filing of First Report of Injury Notice to Controvert was filed. Court ruled that the filing of the Notice to Controvert did not constitute the filing of a claim. The case of { Ridge Pallets Inc. v. John 406 So.2d 1292 (Fla. 1st DCA 1982) Case_2166} was distinguished.Deceased claimant died in work related accident leaving 3 natural children who at the time of the claimant's death were living with their mother the claimant's wife. Deceased claimant was living with another person and providing support to her minor children. Court ruled that minor children of the person with whom he was living at the time of the accident and for which support was being provided could not qualify as step-children of the deceased employee since the deceased claimant could not have married their mother. The doctrine of virtual adoption does not create the legal relationship required by the workers' compensation statute to create a legal beneficiary.
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Claimant filed claim with Deputy Commissioner but not with the Division within period of statute of limitations. It was not received by the Division until after the running of the statute. A copy of the claim filed with the Deputy Commissioner was sent to carrier. Court ruled that in order to toll the state of limitations the claim must be filed with the Division. The only exception to this situation is where the claim is filed with the Deputy Commissioner but not timely forwarded to the Division. Howeverin this case this one exception did not apply. Since the claim was not filed with the Division within the period of the running of the statute the claim was barred.
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Wage Loss Form filed by claimant's attorney without claimant's signature or indication of whether claimant receiving social security or unemployment compensation. Court reversed itself and held that even without signature this created a valid claim for wage loss benefits. Court determined that a claim for wage loss benefits is adequate under Section 440.20(4) if it is sufficient to give knowledge of the claim to the carrier or employer. Information in regards to SS and unemployment compensation is not required to be included in order for a claim to be in compliance with the law governing contents of claims nor is the signature of the claimant needed. Court also said that it cannot be said as a matter of law that the E/C could not be guilty of bad faith in failing to pay or make a proper investigation as the form filed in the case was not signed.The self-executing nature of the W/C law does not provide that failure to comply with technical requirements in filing wage loss benefit request forms should defeat a valid claim for such benefits. In this case the claimant failed to sign the claim for wage loss benefits and the court said that this is not a technical omission but one of substance. The requirement of the employer/carrier to pay wage loss benefits did not accrue until such time as the claimant actually signed the wage loss request form and also signed the social security release and information form. Reversed on rehearing.
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Claimant filed "shotgun claim" and claimed among other things temporary total compensation. Notice of hearing and application for hearing did not request TT and court ruled that hearing the issue of TT at the time of the hearing did not provide the employer/carrier adequate notice. This is true even though the original claim did claim TT.
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Court determined that a claim for wage loss benefits should not be denied because of the failure to comply with the reporting requirements found in Section 440.185(10) F.S. STATUTORY CHANGE
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Employer/carrier objected to the claim being filed because of lack of specificity. Court determined however that the employer/carrier was on notice of the benefits being claimed. The doctor had written to the employer/carrier advising employer/carrier of the need for medical care which was being denied by the employer/carrier.
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Pursuant to Section 440.30 F.S. the claimant's attorney is entitled to a fee if the employer/carrier takes the deposition of the claimant without a claim having been filed. In this case the claimant filed a BCL13B requesting wage loss benefits. No notice to controvert was filed by the employer/carrier and the deposition of the claimant was taken. Court ruled that an attorney fee was due since the filing of the BCL13B did not constitute the filing of a claim. Court further found that the filing of a claim begins when the employer/carrier actually files a notice to controvert with the Division.
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Claim filed for benefits but did not include wage loss compensation for a particular period of time. However in the application for hearing the specific awarded benefits were claimed. Court held that the application for hearing was considered to be a claim and it is not reversible error to award benefits not originally claimed in the claim for compensation but noted in the request for hearing.
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Section 440.19(2)(d) F.S. requires a claimant to file a claim for specific benefits due him under Chapter 440. DC can only award those benefits that have been properly claimed. In this case no claim was made for temporary total yet they were ordered by a DC. First DCA ruled this to be error distinguishing the case of { Farm Stores v. Dyrda 384 So.2d 269 Case_2523}.
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Claimant failed to report wage loss benefits on proper form within 30 days of the month in which they were due as required by statute. Court said that failure of claimant to do this did not forfeit claimant's right to wage loss benefits since neither the carrier nor the state department rules required the employer/carrier to notify the claimant when the form must be filed.
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Section 440.19(2)(d), Florida Statutes (1979) mandates particularization of a claim for benefits. It was the intent of the Legislature in passing this particular provision to discourage the filing of shotgun claims. In this instance, a claim was filed for benefits from the date of accident forward. The application for hearing requested temporary total benefits. Court determined that the carrier was never put on notice that it will be called upon to defend a temporary partial disability claim. The employer's first notice of a claim for temporary partial was the claimant's request for such benefits at the time of the final hearing. The employer/carrier promptly urged dismissal of the amended claim on the ground of improper notice. The judge should have granted the motion.
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Claimant's attorney filed a motion and application for hearing to obtain approval of a contract to employ the attorney pursuant to Section 440.34 F.S. Carrier then took 4 depositions and the question in this case was whether the claimant's attorney was entitled to a fee pursuant to Section 440.30 F.S. for attending these depositions. Court ruled that the motion for the acceptance of the contract to employ was not considered to be a claim and therefore the claimant's attorney was entitled to a fee.
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Deputy Commissioner awarded benefits not claimed by claimant. 1st DCA ruled that this was error.
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Division of Workers' Compensation advised the claimant that there was the possibility that if he did not amend his claim that it was subject to being dismissed for lack of specificity. Court determined that it was the deputy commissioner not the Division who determined the sufficiency of claims. The letter from the Division only informed the claimant of a possibility that his claim might be dismissed but in fact made no determination as to its validity. Court determined that claimant had prematurely sought review of the possible dismissal of his claim since no judge had made a determination of adequate specificity.
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Claimant's claim for PT benefits did not waive his claim for permanent partial benefits. Accordingly even though claimant made a claim for PT benefits before the judge the judge could still rule on the permanent partial disability benefits if any.
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Although the claim for benefits showed a different date of accident, there was still competent and substantial evidence of record to support a compensable injury on the date found by the judge.
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It is error for the Judge to go beyond the stipulated reason for the hearing and order the payment of benefits not claimed.
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Claimant failed to properly identify employer and carrier. IRC found this nonprejudicial to E/C and held it error for JIC to dismiss claim without right to amend.
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The boilerplate claim of "all benefits under the act" is not sufficient to put the employer on notice of a claim for P.T. benefits.
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The boilerplate claim of "all benefits under the act" is not sufficient to put the employer on notice of a claim for P.T. benefits.
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In order to permit JIC to order some benefit to claimant a claim must first be made for this benefit.
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The claimant may withdraw his claim voluntarily at any time before he rests but not thereafter. This refers to case in chief not rebuttel. See Hamman v. Churchman Tower Service. {\i Case not in WCR database}
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Claim asserted that claimant had been injured on two dates. At time of hearing, judge allowed amendment to claim to conform with dates of accidents as found in employer's records. Court allowed the amendment to the claim stating the correct dates of accident since claimant could not remember the exact dates but had attempted to get copies of the reports reflecting correct dates of accident. Under the facts of this case, the employer/carrier did have notice of the actual claim against them and accordingly, the amendment was allowed. Even if the employer/carrier did not have notice of the actual claim against them, the record reflected that the employer/carrier acquiesced to the amendment.
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Claimant was TT and being paid all benefits due. Claim filed by attorney and IRC said claim was premature and allowed motion to dismiss. IRC said JIC could have awarded penalties against claimant for frivolous claim.
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Court determined that it was not an abuse of the judge's discretion in dismissing a claim where claimant refused to provide documents based on the invocation of his fifth amendment rights.
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Court determined that it was error for the JCC to award temporary partial wage loss benefits where the employer and carrier were not given notice of a claim for such benefits. No claim had been filed for these types of benefits they were not discussed at the pre-trial conference or at the final hearing.
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The boilerplate claim of "all benefits under the act" is not sufficient to put the employer on notice of a claim for P.T. benefits.
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