Cases

Claim made for hypertension benefits.  The JCC determined benefits were payable after having appointed an Expert Medical Advisor based on conflicting medical reports/opinions concerning MMI dates and permanent impairment ratings. Employer/Carrier appealed based on the fact that there were no conflicting medical opinions warranting the appointment of an EMA and there was no competent and substantial evidence to support the judge's acceptance of the EMA's opinion.

Once an EMA is appointed, his/her opinion is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.  Clear and convincing evidence is evidence "of a quality and character so as to produce in the mind of the JCC a firm belief or conviction without hesitancy as to the truth of the allegation sought to be established." This heightened standard of proof does not change the appellate court's standard of review, however, the appellate court's function is not to conduct a de novo proceeding  or re-weigh the evidence by determining independently whether the evidence as a whole satisfies the clear and convincing standard but to determine whether the record contains competent and substantial evidence to meet the clear and convincing evidence standard.  The appellate court determined that there was competent and substantial evidence to support the JCC's determination to accept the findings made as to the award of benefits.

The Employer/Carrier had objected to the EMA's opinion based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579(1993).  The objection based on Daubert was first raised in an amendment to the parties' pre-trial stipulation. The appellant did not re-affirm the objection at trial or on re-hearing.  The objecting party made no attempt to depose the EMA to ascertain whether he had a sufficient basis for his opinions and did not file a Motion in Limine, Motion to Strike, or any other motion to limit or exclude any medical expert's opinion and provided no specifics on the basics of the Daubert ojection. Court determined that appellants had failed to preserve their Daubert argument for appeal. To be preserved on appeal, the issue must be presented in the lower court and the specific legal argument or ground to be argued on appeal must be a part of the presentation.

Court reminded appellants that the standard of review in workers' compensation cases is when a competent and substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below. Dissenting opinion discussing methodology in determining medical findings related to hypertension findings and the percentage of impairment for determining benefits payable.

An appellate court may raise subject matter jurisdiction sua sponte even where neither party raises the issue.  Courts are bound to take notice of the limits of their authority and if want of jurisdiction appears at any state of the proceedings, original or appellate, the court should notice the defect and enter an appropriate order.  Courts of compensation claims are not courts of general jurisdiction and therefore do not have general jurisdiction over any subject matter beyond that specifically conferred by statute. Workers' compensation is purely a creature of statute. All rights and liabilities under that system are created by Chapter 440, as is the deputy's power to hear and determine issues in a workers' compensation case.

Dismissal of Petitions for Benefits divests the JCC of jurisdiction. The loss of jurisdiction occurs even when the dismissal of a Petition for Benefits is without prejudice.The effect of a voluntary dismiss is to remove completely from the court's consideration the power to enter an order, equivalent in all respects to a deprivation of jurisdiction. Chapter 440 does recognize limited exceptions in which a JCC has jurisdiction over certain matters in the absence of a Petition for Benefits.  See Vazquez v. Romero, 179 So.3d 402(Fla. 1st DCA 2015). Most of the exceptions generally involve discovery requests or disputes.  See also 440.33(1), Florida Statutes.  See case for additional circumstances where the JCC has jurisdiction to decide issues where there is no pending Petition for Benefits.

In this case, without the existence of a Petition for Benefits, the claimant filed with DOAH a motion requesting the JCC to vacate an arbitration determination that the parties had voluntarily entered into. Section 440.1926 allows for a process for alternate dispute resolutions as opposed to the filing of a Petition for Benefits pursuant to Chapter 440, Florida Statutes.  This provision, however, specifically states that such provision for arbitrations shall be governed by Chapter 682, the Florida Arbitration Code.

The JCC interpreted the jurisdiction to apply to the ability of a JCC to interpret the statute utilizing the in pari materia statutory construction processes to allow for the JCC to have jurisdiction in this matter. On appeal, court determined that utilizing this statutory process for interpretation did not apply in this case since the language of the statute is clear that there is no occasion for resorting to the rules of statutory interpretation and construction. The employer/claimant can mutually agree to seek consent from a JCC to enter into binding arbitration in lieu of any other remedy provided for in Chapter 440 to resolve all issues in dispute regarding an injury. However, the enforcement of an arbitration award is available in the same manner and with the same powers as a final compensation order entered by the JCC.  Section 4440.211 and 440.1926, Florida Statutes, provides separate and distinct provisions setting forth two avenues of dispute resolution. One mandatory per pre-employment or pre-accident contractual agreements of the parties and one optional formed post-employment and post-accident subject to the consent of the JCC. The claimant in this case filed a Motion to Vacate the arbitration award with the JCC.  However, the JCC did not have jurisdiction to modify the arbitration agreement/findings.

The standard of review in workers' compensation cases is whether competent substantial evidence supports the decision, not whether it is possible to recite contradictory record evidence which supported the arguments rejected in proceedings before JCC. The appellate court will not re-try a claim at the appellate level and substitute its judgment for that of the JCC on factual issues supported by competent substantial evidence.

DCA affirmed JCC's opinion and denial of benefits claimed by claimant utilizing the "Tipsy Coachman" doctrine which allows an appellate court to affirm a trial court's decision for wrong reasons so long as there is any basis which would support the judgment in the record.

Medical marijuana is not compensable under the Workers' Compensation Act.  The claimant's attorney had filed a motion with the JCC requesting a medical evaluation as to whether the claimant would benefit from treatment utilizing marijuana.  Since medical marijuana was specifically excluded from being compensable under the Workers' Compensation Act and because of the federal determinations that medical marijuana was of no consequence, the court affirmed the JCC's denial of the claimant's motion for an evaluation to determine the efficacy of medical marijuana treatment for the individual claimant.

JCC awarded attendant care benefits to injured worker and this order was appealed by employer/carrier.  While on appeal, it was determined that the JCC did not have jurisdiction to rule on a Petition for Benefits that were the subject of the appellate review.  Newly filed petition for benefits were the same attendant care benefits if awarded that was currently on appeal. The portion of the JCC's order dismissing the petition for benefits because of a lack of jurisdiction is an appealable non-final order adjudicating jurisdiction under the Florida Rules of Appellate Procedure 9.180(b)(1)(A).

(On Motion for Rehearing and written opinion) On the morning of the final hearing, the employer/carrier moved to admit surveillance film or alternatively to continue the final hearing.  Also, the employer/carrier moved to amend the pre-trial stipulation to add a misrepresentation defense or alternatively to continue the final hearing. The motions were denied by the JCC finding prejudice to the claimant and no good cause for the employer/carrier's delay in adding the surveillance films and adding witnesses.  The JCC also found that the late addition of a misrepresentation defense would violate claimant's due process rights.

Court determined that findings made by JCC was supported by competent and substantial evidence.  The primary inquiry in regards to adding witnesses or new defenses to a pre-trial stipulation is whether there is prejudice to the objecting party.  

The standard for review in determining an order from the JCC denying a Motion to Amend the Pre-trial Stipulation is abuse of discretion.  In the original pre-trial stipulation, the employer/carrier listed "surveillance rep, if any."  This note is in contravention of the instruction "to list the specific full names of all witnesses" as well as to specify "live or by deposition." The efforts made by the employer/carrier to add the defenses and the subject of other motions was not just a clarification of the witness list as argued by the employer/carrier.  The court determined that the attempts at amending the pre-trial stipulation was nothing more than the employer/carrier, upon receipt and review of the surveillance, deciding to change their litigation strategy which does not justify amending a pre-trial stipulation. A party's mere change of litigation strategy without more, provides insufficient grounds to set aside a binding stipulation agreement. 

JCC ruled that the claim for surgery made by the claimant was premature and there was no medical testimony from the authorized treating physician that such surgery was needed. On appeal, JCC's findings reversed. The employer/carrier waived any objections on the grounds of ripeness and specificity by not asserting that defense or moving to dismiss the claim. There was an IME opinion presented by the claimant's attorney indicating that surgery was needed for the claimant whereas the treating authorized doctor stated that surgery was not needed. Court determined that IME opinions are admissible and can support claims for specific medical benefits.

Pursuant to Section 440.105(4)(b)1-3, Florida Statutes, it is unlawful for any person to make or cause to be made any false, fraudulent, incomplete, or misleading oral or written statement for the purpose of securing compensation. An employee who knowingly or intentionally violates Section 440.105(4)(b), 1-3 is not entitled to workers' compensation benefits.  See Section 440.09(4)(a), Florida Statutes.  

Under Rule 60Q-6.113(2), a fraud or misrepresentation defense based on Sections 440.09(4)(a) and Section 440.105, F.S., must be detailed specifically in the pre-trial proceedings in the trial stipulation with specificity detailing the conduct giving less to the defense.  To establish a defense, the employer/carrier must prove violations of Section 440.105(4)(b) by a preponderance of the evidence.  The JCC is then required to determine whether the claimant knowingly or intentionally made the false, fraudulent, incomplete or misleading statement, whether or oral or written, for the purpose of obtaining workers' compensation benefits or in support of his claim for benefits. The false, fraudulent or misleading statement does not need to be material to the claim; however, it must be made for the purpose obtaining workers' compensation benefits. A JCC's ruling on a fraud or misrepresentation defense is reviewed for competent and substantial evidence and the factual findings will be upheld if any such evidence supports the JCC's decision, regardless of whether other persuasive evidence if accepted by the JCC might have supported a contrary ruling.  But to the extent the ruling involves the JCC's interpretation and application of the statute, it is a question of law subject to the de novo standard of review.

Based upon the credibility of the injured worker, the JCC determined that the claimant did not mis-state facts to the employer/carrier supporting a misrepresentation defense.  Court determined that it is within the JCC's discretion to resolve a conflict in the evidence and make credibility determinations.

JCC also determined that the claimant did not make fraudulent misrepresentations to her doctor based upon surveillance films obtained by the employer/carrier. The misrepresentations statute requires that the employer/carrier prove the claimant made or caused to be made a false, fraudulent, or incomplete or misleading oral or written statement for the purpose of securing compensation.  JCC determined that there was no oral or written statement by claimant to her doctor that would serve as the necessary predicate for a valid misrepresentation finding.

In order for there to be a compensable accidental injury, the accident must be the major contributing cause of resulting injuries.  The injured worker bears the burden of proving entitlement to claimed medical benefits with evidence that the compensable industrial injury is the major contributing cause for the requested medical treatment.  Once the claimant establishes that the accident is the major contributing cause of the injuries, the employer/carrier bears the burden of proof to demonstrate a break in the causation chain, such as the occurrence of a new accident or that the requested care was due to a condition unrelated to the injury which the employer/carrier accepted as compensable. 

In this case, the employer/carrier accepted as compensable injuries to the lumbar spine without being specific as to the exact diagnosis that was admitted to be compensable, similar to the broad stipulation between the accident and resulting injuries as referenced in the case of Jackson v. Merit Elec., 37 So. 3d 381 (Fla. 1st DCA).  There was no evidence of any specific diagnosis that was admitted by the employer/carrier to be compensable; just the general statement that treatment for the claimant's back pain. 

Court determined that by accepting treatment for the general diagnosis made, this had the effect of admitting to compensability of all treatments to the claimant's back even though some of the treatment related to preexisting degenerative changes in the back.  By accepting general treatment to the back, court determined that the employer/carrier had stipulated that all treatment to the back would be compensable.  In this case, the employer/carrier failed to demonstrate a break in the causation chain such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the injury which the employer/carrier had accepted as compensable.  Court determined that the employer/carrier's failure to prove a break in the causation chain precluded the employer/carrier denying compensability and accordingly, the court awarded benefits to the injured worker overturning the JCC's order to the contrary. The claimant was not required to establish major contributing cause because the employer/carrier entered into a broad stipulation with the claimant that did not define the accepted compensable injury any more narrowly than the lumbar spine.  As a result of that stipulation, the burden shifted to the employer/carrier to demonstrate a break in causation and the employer/carrier failed to provide evidence of any intervening or competing cause.

Claimant requested a one-time change in physicians and named a particular doctor that he wished to see.  Employer/carrier responded by offering another doctor of its choice. Claimant went to the employer/carrier's chosen doctor alleging that he had no choice but to attend appointments with the employer/carrier's doctor because he lacked the money to pay for an unauthorized physician. Court determined that because the claimant went to the employer/carrier's doctor, he waived his right to make his own selection of an alternate medical care doctor.  If going to the employer/carrier's doctor, the claimant objected, he should have advised the employer/carrier that he was seeing their chosen doctor under protest.

The JCC denied claimant's entitlement to temporary benefits based on the misconduct defense, i.e., the claimant was terminated by the employer because of his misconduct. On appeal, this denial of benefits was reversed.  The issue in this case was not whether the employer had a cause or the right to terminate the claimant's employment but instead whether the employer/carrier proved termination was based on actual misconduct.  Whether a claimant commits misconduct is a question of law but the findings of fact of which the legal question is based upon must be accepted if supported by competent substantial evidence.

Generally, a single instance of failure to follow employer policy has not been reviewed as rising to the level of misconduct.  While a violation of an employer's policy may constitute misconduct, repeated violations of explicit policies after several warnings are usually required.  In this case, the court determined that there was no competent substantial evidence to support the judge's decision that the claimant had violated the employer/carrier's drug policy.  The only evidence of a violation was testimony of the employer that the claimant tested positive following a drug test.  Court determined that such testimony was inadmissible hearsay. 

Failure to make a contemporaneous objection to the admissibility of evidence can result in the waiver of such hearsay evidence when deciding if competent substantial evidence supports a JCC's ruling.  However, under Section 90.104(1)(b), Florida Statutes, if the court has made a definitive ruling on the record admitting or excluding evidence either at or before trial, a party need not review an objection or offer proof to preserve a claim of error for appeal. In this case, the JCC had made a prior ruling limiting the purpose of the hearsay testimony concerning test results.  Court ruled on appeal that the claimant had not waived his right to the admissibility of the employer's hearsay testimony in regards to the fact that the claimant's drug test tested positive.

The claimant's attorney emailed the attorney for the employer/carrier requesting a one-time change in physicians.  The following day, a formal Petition for Benefits was filed.  In response to the email requesting the one-time change, the attorney for the employer/carrier authorized such.  In response to the Petition for Benefits filed, the employer/carrier denied the request for one-time change since the statute of limitations had run.  The question in this case is whether the employer/carrier was estopped in asserting the statute of limitations defense. Rulings on the statute of limitations are reviewed by competent substantial evidence as to the JCC's findings of fact and de novo as to the JCC's legal conclusions.  It was agreed in this case that the statute of limitations had run but it was asserted by the claimant's attorney that the employer/carrier was estopped in asserting the statute as a defense. 

There are two situations where the statute of limitations defense can be avoided:  1) where an employer/carrier fails to assert the statute of limitations as a defense in its initial response to a Petition for Benefits, and 2) where the employer/carrier is estopped from raising the statute of limitations defense.  Since in the proceedings before the JCC , the initial response to the Petition for Benefits was not challenged by the claimant's attorney, accordingly on appeal, the JCC's determination that the claimant failed to demonstrate estoppel pursuant to Section 440.19, F.S., was considered by the court.

To demonstrate estoppel, the claimant must show that: 1) the employer/carrier misrepresented a material fact; 2) the claimant relied on the misrepresented fact, and 3) the claimant changed his position to his detriment because of the misrepresentation.  Section 440.19(4) does not include a requirement of intent (i.e., where the employer/carrier misleads the claimant as to his or her rights or availability of workers' compensation, even unitentionally, resulting in the claimant's failure to file a timely claim, the employer/carrier may be estopped in denying benefits).

In this case, the claimant never alleged that he relied on any initial authorization for a one-time change in physician.  Accordingly, the JCC found that the claimant failed to prove estoppel.  There was no evidence in the record to show that estoppel existed. 

JCC denied temporary partial benefits to the claimant.  JCC's finding in regards to a claim for TPD benefits are reviewed for competent substantial evidence. Whether the JCC used the correct legal standard is reviewed de novo.

The claimant returned to work after a compensable accident.  He thereafter stopped work in order to attend to matters relating to his father's death.  When he returned to work, the job that he was performing was no longer available.  The employer/carrier denied temporary partial disability benefits based on the defense of voluntary limitations of income.

Although the defense of voluntary limitation of income was removed from the workers' compensation law, in considering Section 440.15(4)(a), F.S., the court has likened this defense to proving what an injured worker "is able to earn post-injury."  In addition, this defense has been analygized to the statutory defense of refusal of suitable employment found in Section 440.15(6), Florida Statutes, in ruling that although there is no legal requirement to continue offering jobs to an employee, there must be a showing of continued availability of a job for each period in which temporary partial benefits are claimed.

In this case, the JCC made no findings as to whether a job was available to the claimant when he returned to a job that he was working post-accident.  The employer/carrier argued that the "tipsy coachman rule" would apply in denying benefits to the claimant.  However, this doctrine cannot be utilized when the JCC did not make any factual findings on that issue.  The JCC failed to use correct legal standards in evaluating the claimant's claim for TPD benefits.  If the claimant  left his employment post-accident "without just cause" then TPD benefits would be payable based on deemed earnings just as if the claimant had remained employed.

A decision in favor of the party without the burden of proof need not be supported by competent substantial evidence.  A JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves.

The employer/carrier's expert witness testified that the claimant's respiratory problems were related to the claimant's 17-year history of smoking rather than the claimant's alleged exposure to debris during the 11 days he worked for the employer.  It was asserted by the claimant that the claimant's IME doctor was not qualified to render such an opinion because he was not a board certifired internist or a pulmonologist.  The determination of a witness's qualifications to express an expert opinion is within the discretion of a trial judge whose decision will not be reversed absent a clear showing of error.  The court in this instance determined that the selection of an IME is not limited to a board certified physician.  The court also stated that there was no need for the testimony of the expert witness in this case to be a pulmonologist, a specialist in the treatment of respiratory disease. In this case, the employer/carrier's IME was a board certified occupational medicine specialist with extensive experience in exposure cases.  A witness may be qualified as an expert through specialized knowledge, training or education, which is not limited to academic, scientific or technical knowledge.  In this case, the doctor's extensive training and experience in exposure cases established his qualifications to opine on the disputed issues of causation.  

In the case of Heckford v. Florida Department of Corrections, 399 So. 2d 247(Fla. 1st DCA 1997), the court had excluded the admissibility of an IME report of a doctor whose opinion had been solicited exclusively and solely for litigation.  The court ruled that the McElroy case did not apply in workers' compensation cases.  There was no showing in this instance that the employer/carrier expert rendered an opinion outside of his areas of expertise as demonstrated by licensure and applicable practice parameters. Such opinion evidence would be prohibited under the specific IME provisions of Section 440.13(5)(a), Florida Statutes.

Treating physician provided medical testimony and designated a retroactive maximum medical improvement date precluding claimant's entitlement to temporary benefits since MMI had been reached prior to the period of time for which temporary benefits were claimed.  The retroactive MMI date resulted from an ex parte conference with an employer/carrier representative.  On appeal, the question before the court was whether the doctor could testify to a retroactive MMI date ??? Section 440.13(4)(c), Florida Statutes, allowing for ex parte conferences with a doctor violates the privacy clause of the Florida Constitution.

The question of whether a claimant has reached MMI is a medical question that should be answered by medical experts.  In this case, the claimant argued that it was error for the doctor to provide a retroactive MMI date since the doctor did not examine the claimant on that date.  The court ruled that a doctor does not have to actually examine a patient on the date of the assigned MMI.  Court determined that there was competent and substantial evidence to support the JCC's determination as to the correctness of an assigned MMI date.  Claimant also argued that because of the fact that the claimant continued receiving medical care after the assigned MMI date constituted competent and substantial evidence that MMI date had not been reached as of the assigned MMI date by the doctor.  However, the medical evidence before the JCC regarding MMI was the opinions of the doctor that retroactively assigned MMI ?????

A review of constitutionality claims is de novo.  In regards to the claimant's claim for not allowing ex parte communications with the treating physicians by the employer/carrier was not a violation of the constitutional rights of the claimant based upon rights of privacy.  The court in the case of S & A Plumbing v. Kimes, 756 So. 2d 1037 expressly held that Section 440.13(4)(c), Florida Statutes, does not violate the Florida constitutional right to privacy.

JCC admitted into evidence the testimony of the claimant's IME in establishing the compensability of a mold exposure case.  Court determined that JCC erred in admitting testimony from expert.  A JCC's decision to admit evidence is reviewed for abuse of discretion.

The court reaffirmed previous findings that the Florida Evidence Code applies to workers' compensation proceedings.  Court determined in this case that the claimant did not supply a sufficient evidentiary basis for concluding that claimant was exposed to mold in her workplace or that the mold exposure at work was the major contributing cause of the claimant's symptoms. 

The claimant's IME doctor improperly bolstered his opinions by the professional opinions and reports of others.  An expert's reference to other expert's opinions and publications as to occupational causation is relying upon incompetent evidence.  The IME of the claimant also bolstered his testimony with opinions of another doctor who he had talked to about such exposures.  Such reliance upon other doctors' opinions did not constitute a situation where the IME doctor relied upon his own independent opinion.  The court also determined that the IME doctor also relied on inadmissible medical records of the claimant's co-workers to bolster his opinion.  Such reliance is improper.

The court also determined that the IME testimony lacked a sufficient factual foundation to establish occupational causation.  There must be testimony as to the specific substance involved in the exposure at levels causing injury which the expert in this instance did not testify to.  

In conclusion, the JCC abused his discretion when he admitted into evidence the testimony of the claimant's IME doctor supporting occupational causation for the claimant's medical problems.

Claim filed based on allegations of exposure to mold in the workplace.  Claimant's IME doctor testified over the objection of the employer/carrier that in his medical opinion, the exposure to mold in the workplace was the cause of the claimant's developed symptoms including sinus infection, cough, voice loss, bronchitis, and swelling of the legs.  Claimant's IME doctor who expressed this opinion was a general practitioner with no specialized licensing in mold exposure or any related field and had never claimed to be an expert on mold related injuries or diseases. As a part of his research on the development of such symptoms, the claimant's IME doctor spoke with an infectious disease doctor in New York, who specialized in mold exposure and reviewed medical records of the clamant's co-workers who had similar symptoms.  The question in this case was whether the opinions of the claimant's IME physician were admissible. 

The decision to admit evidence is reviewed by the appellate court based on abuse of discretion.  The court determined that the JCC abused his discretion in admitting the expert testimony over the employer/carrier's objection because it was based on improper bolstering and lacked a sufficient factual foundation.  

The court determined that the claimant's IME opinion was improperly bolstered by the professional opinions and reports of others.  Improper bolstering occurs when an expert is used as a conduit for otherwise inadmissible evidence and the expert reaches an opinion by relying on the opinions and publications of other experts.  In this case, the IME doctor relied on several published articles.  In addition, the IME doctor's testimony was bolstered by his testimony that he relied upon the opinions of a New York based infectious doctor.  The doctor did not reach his opinion independently.  The doctor did not rely on his own independent opinion in making these determinations.  The doctor also relied on the inadmissible medical records of the claimant's co-workers to bolster his opinion.

In addition, the IME doctor's testimony lacked a sufficient factual foundation to establish occupational causation.  By statute, this medical opinion had to be based on clear and convincing evidence establishing that there was an exposure to the specific substance involved at harm causing levels.  The doctor was unable to determine which mold existed in the claimant's workplace and which mold caused the symptoms.

The JCC abused his discretion when he admitted the claimant's IME doctor's occupational causation opinion testimony into evidence.

Claimant filed a petition for temporary benefits.  Part of the claimed benefits were denied because of the fact that the claimant had reached maximum medical improvement.  That order was appealed and was currently on appeal.  A subsequent petition was filed seeking temporary benefits for periods of time subsequent to times in prior order.  JCC determined that he did not have jurisdiction to make a decision on the second filed petition since this would require him to resolve the same issues concerning the date of maximum medical improvement that had been decided in the first case that was on appeal. The second order finding no jursidiction was appealed.  Court determined that the standard of appellate review was de novo when the issue on appeal is subject matter jurisdiction.

Under Section 440.15(4)(a), Florida Statutes (2014), TPD benefits are payable if MMI has not been reached and medical conditions resulting from a compensable injury create restrictions.  A finding of MMI is precluded where a claimant is entitled to remedial care, i.e., where there is a reasonable expectation that the necessary treatment will bring about some degree of recovery even if that treatment ultimately proves ineffective.

Court determined that JCC erred in concluding that once the claimant was at MMI, he must forever stay at MMI. There can be changes of condition that may entitle a claimant to further remedial care even after assignment of a date of MMI.  Accordingly, even if the prior order had found MMI, there was still a possibility that the MMI date had changed.  Accordingly, the judge did have jurisdiction to make a determination on whether there is a new MMI date allowing for an award of temporary benefits.  The prior order and award of temporary benefits should have been interpreted as awarding temporary benefits "to the date of the hearing and for as long as such benefits are proper" as opposed to an order awarding temporary benefits "through the present and continuing."

Claimant filed a motion for a $2,000 advancement for the purpose of paying the expenses associated with obtaining an Independent Medical Examination.  The JCC denied the advancement because there was a lack of evidence establishing a financial need for the advance. On appeal, JCC's order affirmed.

Claimant claimed that she was not required to prove financial need because she had established eligibility for an advancement based upon her impairment rating (1%) and the fact that the purpose of the advancement was to pay the expenses of an IME to support her pending Petition for Benefits.  The Motion for Advancement was denied by the JCC because she had failed to present evidence that her income was insufficient to pay for an IME and the claimant did not otherwise demonstrate a financial need for the advance.  The claimant had returned to work with a base salary of $75,000.

Ordinarily, orders concerning advances are typically reviewed for an abuse of discretion.  However, because the issue in this case was a legal issue (what a JCC may consider when deciding whether to award an advance), is a legal one.  Review as de novo.

The purpose of an advance is a "stop gap" to help the claimant avoid defaulting with creditors while awaiting the potential distribution of workers' compensation benefits when the reduction in income is caused by the injury.  The question in this case is whether a JCC may consider a claimant's financial need when the stated purpose for the requested advance is to obtain an IME in furtherance of a pending Petition for Benefits.  The court agreed that paying litigation costs was a sufficient basis for an advance.  However, the judge can consider the claimant's financial need (or lack thereof) when determinine whether to award an advance even if the purpose of the advance is to fund litigation costs.  

Court reversed and remanded for recalculation of an attorney's fee as awarded by the JCC.  The JCC erred in calculating and using a discount factor based on evidence outside of the record.  See Section 440.34(1), Florida Statutes.

Where the JCC’s findings are called into question as not consistent with the evidence, appellate review is based on abuse of discretion.

This case involved conflicting medical opinions as to the claimant’s need for surgery.  Medical testimony that was adopted by the JCC found that the surgery was reasonable.  However, reasonableness is not the only standard to apply when awarding medical care.  As noted in Section 440.13(2)(a), the treatment ordered must also be medically necessary.  It is the claimant’s burden to prove medical necessity.  In this case, the doctor whose opinion the JCC adopted did not opine that the surgery was medically necessary.  To the contrary, he made it clear that he was not recommending the surgery since it was unlikely that the patient would benefit from the surgery.  The doctor explained that his concern was that the surgery could possibly make the claimant worse and was unlikely to offer the claimant any relief.

Court determined that JCC committed error in relying on the reasonableness of requested treatment and ignoring medical necessity.  The doctor did acknowledge that another physician might perform such a surgery but the court determined that this is not clear and convincing evidence of medical necessity. 

Court determined that the JCC failed to apply the correct standard in assessing the doctor’s opinion that was accepted and further failed to clearly articulate a reason for rejecting the EMA’s opinion finding that the surgery was not appropriate.

Claimant was injured while trying out for a position with the Arena Football League Orlando Predators.  The parties agreed that the claimant's claim was dependent on the contract that the claimant had with the football team. The parties stipulated that whether the claimant was an employee at the time of this accident depends on his contract with the football team.  Court determined that when reviewing contracts to determine coverage, review is de novo. 

The contract that the claimant signed was to be executed by three parties - the claimant, a team representative, and a league representative.  The claimant and the team representative had signed the contract but the leage had not. The question in this case was whether there was a contract or wasn't there? The claimant argued that there was a contract since there was nothing contained in the agreement that says that all parties were required to sign.  The court rejected this argument since a contract can be enforceable against the non-signator simply because of the fact that the contract does not expressly provide that signatures are required.

The claimant also argued that there was a provision in the agreement that the league could unilaterally cancel the contract without an agreement between the claimant and the team.  However, the contract also provided that absent this approval, it would become effective in 7 days automatically. There was no notice from the leage that the contract was disapproved.  However, this did not mean that a contract was automatically approved or that a binding agreement was formed.

Court determined that there was no contract between the claimant and the team contrary to the decision by the JCC.  Accordingly, there was no employer/employee relationship on the date of the injury.

Appellate review of constitutional issues is de novo.  Because the JCC does not have authority to address the constitutional issues, the JCC in this case made no findings on the constitutional challenge.  Even though the JCC does not have jurisdiction to determine the constitutionality of provisions of the Workers' Compensation Act, the claimant is not prohibited from creating a supporting record before the JCC as related to constitutional issues.

In this case, the claimant argued that the imposition of prevailing party costs ordered payable by the claimant was unconstitutional as a denial of access to courts.  In order to establish standing to make this challenge, the claimant first must demonstrate an injury which is both real and immediate, not conjectural and hypothetical. In this case, the claimant argued that the requirement of claimant paid costs has a potential chilling effect on the pursuit of claims.  However, there was no evidence presented to support a real or immediate injury to the claimant. Although the claimant may well be adversely affected by the prevailing cost statute, he did not explain how this distinguished him from the claimant whose standing was denied in the case of Punsky v. Clay Cty Board of Cty. Comm'rs, 60 So.3d 1088(Fla. 1st DCA 2011).  Because the claimant failed to establish a real and immediate injury resulting in a denial of access to courts, the court determined that he lacked the necessary standing to pursue a constitutional challenge on this ground.  Court affirmed the award of claimant paid costs.

Deceased employee worked for employer/defendant where he was allegedly exposed to hazardous material and allegedly as a result, subsequently died of cancer. The decedent's wife sought to obtain workers' compensation benefits from the employer but was advised that her "husband's illness was not a work related illness."  In response to the petition for workers' compensation benefits, the employer filed a Notice of Denial stating that "entire claim denied as claimant's employment is not the major contributing cause of his death."  Upon receipt of the Notice of Denial, the deceased employee's estate voluntarily dismissed the workers' compensation petition and filed a wrongful death suit against the defendant employer.  Lower court entered summary judgment based on exclusive remedy of workers' compensation statute. The question in this case is whether the defendant employer was estopped from claiming workers' compensation immunity because of the denial of workers' compensation benefits.

Appellate court review on a summary judgment motion is de novo.

Florida Workers' Compensation Statutes provide a strict liability system of compensation for injured workers.  In return, an employee is generally precluded from bringing a common law negligence action.  However, where injuries are not encompassed within the Workers' Compensation Act, the employee is free to pursue his or her common law remedies.  If an employer takes the position in a workers' compensation proceeding that the employee is not owed workers' compensation because the injury did not occur within the course and scope of employment or that there was no employment relationship, the employer may be subsequently estopped from claiming immunity on the grounds that the workers' compensation exclusive remedy was workers' compensation.  However, if an employer merely states a defense within the workers' compensation proceedings, an employer may not be estopped from later asserting immunity.

The employer alleged that the position taken in the workers' compensation proceeding was a "medical causation" defense and by asserting such, it was not taking inconsistent position to that taken in the civil cause of action estopping the employer from asserting the exclusive remedy doctrine defense.  The court, however, determined that this defense only applies when the accidental compensable injury is not the major contributing cause of a resulting injury.  On the other hand, if there was a denial of an entire claim because of the claimant's employment altogether (not accpeting the fact that there was a compensable injury), this would be inconsistent and would estop the assertion of the exclusive remedy doctrine defense in the civil cause of action.  Because it was unclear as to the position taken by the employer in this workers' compensation case, summary judgment entered by lower court reversed since there was a question of fact in interpretation as to the position being taken by the employer and whether that position estopped it from asserting the exclusive remedy defense.

JCC denied permanent total disability benefits ruling that the claim for PT was not ripe for adjudication since maximum medical improvement had not been reached.  At the time of the hearing, the claimant had not reached maximum medical improvement according to the health care provider and was entitled to temporary partial benefits.  The parties stipulate that the claimant would be eligible for temporary partial disability benefits but for the expiration of 104 week eligibility limitation as found in Section 440.15(4)(e), Florida Statutes (2011).  The stipulation referenced the case Westphal v. City of St. Petersburg, 194 So. 3d 311 which determined that the 104 week limitation of benefits was unconstitutional as it applied to temporary total benefits.  The court concluded that the 104 week limitation would not apply to temporary partial benefits either.  Court determined that the Westphal decision applied also to temporary partial benefits for a limitation of 260 weeks.

JCC's opinion denying permanent total compensation as being premature was affirmed but for different reasons as stated by the JCC.  If a trial court reaches the right result but for the wrong reasons, it will be upheld if there is any basis to support the judgment in the record.  In this case, the JCC's conclusion that the claimant's permanent total disability claim was premature was correct not for the reason given by the JCC but based upon the reasoning and application of the Westphal decision.

Order of JCC awarded specific handicap-accessible housing and automobile insurance.  Claimant in 2014 filed a Petition for Benefits and sought the payment of rent for a three bedroom apartment instead of a two bedroom apartment that had been provided by the employer/carrier.  The claimant lost on this claim with the JCC finding that the claimant could not explain why he needed an upgraded apartment in excess of that which was being provided by the employer/carrier. The court ruled also that the employer is obligated to provide handicap-accessible housing to the claimant; however, the extent of that obligation requires the employer only to pay the difference in rent between the claimant's apartment at the time of the accident and his handicap-accessible apartment.

Thereafter, another petition was filed by the claimant requesting an increase in the amount of rent that the employer/carrier was paying for an enhanced house over that which was provided by the employer/carrier.  The employer/carrier argued that the initial order was res judicata of this issue and that order had properly determined the amount of housing that was required to be paid by the employer/carrier.  Court determined that the doctrine of res judicata did not preclude the filing of this claim for increased housing since it was determined that the facts or evidence necessary to maintain the second claim was not the same as the initial claim and therefore res judicata did not apply. The employer/carrier has a continuing obligation to provide handicap-accessible housing.  Because the facts in evidence did change since the first order, the JCC correctly rejected the employer/carrier's res judicata defense. 

The employer/carrier also argued that the JCC lacked a basis for entering the housing award as claimed by the claimant.  Appellate court reviewed the JCC's order of one housing alternative over another for an abuse of discretion but reviews a JCC's fact findings justifying an award for competent substantial evidence.

The JCC had determined that the housing as selected by the claimant was awardable because of the employer/carrier's failure to act in determining reasonable housing for the claimant.  The employer's failure to act does not necessarily make the claimant's request for housing a reasonable one and the JCC's order did not make factual findings to support the conclusion that the claimant acted reasonably in choosing housing.  In particular, there was no showing that it was reasonable for the claimant to be awarded a four bedroom house costing more than three times that which was reasonably necessary for the claimant.  Claimant bore the responsibility and burden to make a showing of reasonableness of the housing sought.  Case remanded to JCC to determine whether the housing arrangement sought by the claimant was reasonable and necessary.

On appeal also, the employer took the position that the claimed vehicle insurance awarded to the claimant by the JCC was excessive and included additional costs reflecting business use of the vehicle and a speeding ticket that the claimant might have received.  The employer's obligation to pay for the insurance was not in dispute in this case.  Because the JCC failed to specifically identify facts that would justify an excessive amount for insurance on the claimant's vehicle, order awarding insurance costs reversed.

To the extent that an issue on appeal turns a resolution of the facts, the review standard is competent substantial evidence; to the extent it involves an interpretation of law, this standard is de novo.

In this case, the claimant passed out and fell to the ground striking his head on a concrete pavement.  The case was accepted as compensable and emergency room treatment was provided.  Thereafter, a CT brain scan was read as indicative of a stroke.  Additional diagnostic testing was recommended which was denied by the employer/carrier. On appeal, claimant argued that the additional diagnostic testing was necessary to determine the nature and extent of the claimant's compensable head injury. 

Diagnostic testing is compensable if the purpose is to find out the cause of the injured worker's symptoms, i.e., which symptoms may be related to a compensable accident.  This is true even if the tests prove the symptoms are unrelated to the compensable injury. The same principle applies in cases governed by the major contributing cause standard applicable to dates of accidents beginning January 1, 1994.  The claimant has the burden of showing that the diagnostic tests were reasonably required by the nature of the claimant's workplace injury.

The employer/carrier argued in this case that once the initial head CT scan was read as indicative of a stroke, no further testing was required for the workplace injury.  However, the evidence of record demonstrated that the additional testing was needed to determine if the claimant's CT findings were related to the compensable accident.

The denial of costs is subject to review under an abuse of discretion standard.  To the extent an award of costs presents an issue of statutory interpretation, however, the standard of review on the statutory interpretation question is de novo.

Pursuant to Section 440.34(3), Florida Statutes, the prevailing party is entitled to reasonable costs it incurred in proceedings before the JCC.  An award of costs to the prevailing party is mandatory. In this case, the JCC determined that the claimant was not entitled to costs as the prevailing party since the employer/carrier provided benefits timely under sections 440.192(8) and 440.34(3), Florida Statutes.

The court in this case ruled that the claimant was deemed the "prevailing party" for the taxation of costs even though benefits had been timely paid following the filing of the petition.  The petition included certification by the claimant (not challenged by the employer/carrier) that the claimant and/or the attorney had made a good faith effort to resolve the dispute over benefits with the carrier but was unable to do so. The provisions of Section 440.34(3), F.S. relate to the award of attorney fees, not costs.

To the extent resolution of an appeal requires statutory interpretation, the appeals is subject to de novo review.  Whether the JCC utilized the correct legal standard is also reviewed de novo. 

Claimant sought a diagnostic medical evaluation to determine whether a potential neck or head condition was related to a compensable workplace accident. The claimant alleged that since the date of accident, he had complained of neck and head pain.  Only a right shoulder injury had been originally diagnosed and treated by an authorized doctor.  The employer/carrier had denied the request for the diagnostic evaluation on grounds that the head or neck condition had not been accepted as compensable and that the compensable accident was not the major contributing cause of any neck or head condition.  On appeal, the JCC's order awarding an evaluation to determine the causal relationship of the neck and head injury was reversed.

JCC erred in ordering a diagnostic evaluation to determine if the claimant's subjective complaints of pain in his neck and head were related to the compensable accident. It is the claimant's burden to prove causal relationship between a medical condition and a workplace accident in the first instance and the claimant's failure to do so in this situation resulted in an error by the JCC to order the diagnostic care.  Claimant's subjective complaints, standing alone, were insufficient to prove the claimant's injury and its occupational cause within a reasonable degree of medical certainty based on objective relevant medical findings. 

A JCC's determination as to whether a claimant is entitled to an advance is reviewed for abuse of discretion.  To the extent that statutory construction is necessary, this appellate court's review is de novo. 

JCC denied $2,000 advance pursuant to Section 440.20(12)(c),2, Florida Statutes.  To qualify for an advance under this section, the claimant is required to show one of the following: 1) a failure to return to employment at no substantial wage reduction; 2) a substantial loss of earning capacity; or 3) an actual or apparent physical impairment.  The claimant is also required to show that there was adequate justification for her request which means that the advance has some plausible nexus to the principal purpose of Chapter 440 which is to address medical and related financial needs arising from workplace injuries. 

Court determined that JCC erred in failing to grant the advance.  At the time of the advance, the claimant was on unpaid leave and received no income for a period of at least one month.  The basis for the advancement was to pay unpaid bills.  The JCC found that there was no nexus between the claimant's need for an advance and the workplace injury since the claimant was already behind in the payment of her bills when the request for an advance was made. Even though this was the case, the claimant still missed one week of wages which established the nexus requirement.  Even after her return to work, she continued to experience a loss in wages.  Because the claimant's indebtedness would only grow worse due to her loss of wages, the requisite nexus existed between the need for an advance and the workplace injury. 

Findings regarding an apportionment defense asserted by the employer/carrier are reviewed for record competent substantial evidence.  Apportionment is an affirmative defense and the employer/carrier has the burden of proof to establish entitlement to a reduction of benefits payable to an injured worker pursuant to Section 440.15(5)(b), Florida Statutes.  Court determined that competent substantial evidence supported the JCC's finding that the employer/carrier is entitled to apportion 25% of the cost of the claimant's shoulder surgery.   The claimant's preexisting right shoulder condition was exacerbated/aggravated by a compensable injury.  Court denied apportionment concerning the preexisting degenerative change in the claimant's shoulder since there was no evidence that the degenerative changes were exacerbated/aggravated by the compensable injury.

The claimant asserted that the apportionment statute was unconstitutional since it violates a claimant's right to access to the courts.  Such assertion is reviewed de novo.  Due to the strong presumption of constitutional validity of Section 440.15(5)(b), Florida Statutes, such a claim on constitutionality should be denied unless it is determined to be invalid beyond a reasonable doubt.  Court determined in this case that it could not conclude that this section was invalid.  There was no evidence that the doctor could not perform surgery based on the apportioned sum. There was also no evidence presented that the treatment of the preexisting condition was necessary because it was otherwise a hindrance to recovery from the work place injury.  "Hindrance to recovery" clearly requires employer/carrier to be responsible for treatment of conditions not causally related to the employmernt only if one of the primary purposes of the treatment is to remove hindrance to recovery from the compensable condition and only to the extent treatment of unrelated conditions is necessary to effectively treat the compensable condition. 

Court determined that JCC erred in improperly considering medical testimony of a physician who was not a treating physician, independent medical examiner, or expert medical advisor.  See Section 440.13(5)(e), Florida Statutes.  However, such errror was harmless. There was no reasonable possibility that this error contributed to the result of the case or the decision of the judge or there was a reasonable possibility that a different result would be reached were the case remanded for reconsideration. The test for harmless error requires the beneficiary of the error to establish there was no reasonable possibility that the error contributed to the verdict.

The JCC does not have jurisdiction over reimbursement disputes between medical providers and carrier.  The JCC has jurisdiction to resolve issues of medical necessity as between the claimant and the carrier.

Claimant was hospitalized on two occasions.  The JCC ruled that the first hospitalization was not compensable but the second hospitalization was compensable.  On appeal, court determined that the JCC's decision finding not compensable the first hospitalization was error.  The facts that establish the second hospitalization as emergency services as concluded by the JCC were basically the same facts surrounding the first hospitalization. 

Costs awarded against claimant under subsection 440.34(3), Florida Statutes.  The claimant argued in this appeal that some of the costs awarded were unreasonable and not recoverable under Florida law, specifically the cost for her deposition and the cost of medical record review by a physician.  An award of specific costs is generally reviewed for abuse of discretion. In reviewing a discretionary act, the appellate court should apply the "reasonableness test" to determine whether the trial judge abused his discretion.

On appeal, the cost for the claimant's deposition was awarded against the claimant and this was affirmed on appeal.  There was no proof that an extra charge for the claimant's deposition for an expedited deposition transcript was included in the cost.

In awarding costs, Rule 60Q-6.124(3)(e) provides that the Statewide Uniform Guidelines for Taxation of Costs in civil actions shall be considered by the JCC in determining the reasonableness of an award of cost reimbursement. These guidelines are advisory only and the taxation of costs in any particular proceeding is within the broad discretion of the judge. The moving party requesting the payment of costs has the burden to show that requested costs were reasonably necessary to defend or prosecute the case at the time the action precipitating the cost was taken.  In this case, the doctor's services under question related to a medical record review and a conference with the doctor but no evidence was presented establishing a separate cost of each service.   In this case, the claimant voluntarily withdrew her only pending petition for benefits related to a claim that had any relevance to a conference with a doctor.  Nonetheless, the employer/carrier's attorney prepaid for a conference with the doctor and met with the doctor.  In this case, the court determined that because of the dismissal of the petition, a conference was not reasonably necessary at the time it was held and therefore, the cost was denied.

A Writ of Prohibition is the appropriate vehicle to test the validity of a denial of a Motion for Disqualification of a JCC.

A Verified Motion for Disqualification must contain an actual factual foundation for disqualifying a judge.  A mere "subjective fear" of bias will not be legally sufficient; rather, the fear must be objectively reasonable.  In determining whether a motion to disqualify is legally sufficient,  the appellate court reviews the motion's allegations under a de novo standard. The judge against whom the motion to disqualify is directed must determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged.  Thus the facts and reasons for disqualification must be taken as true.  Significantly, the standards for disqualification do not turn on a demonstration of actual bias or personality of the part of the judge or the judge's own perception of his or her impartiality.  Rather, disqualification is required where the facts alleged and established which must be taken as true would place a reasonably prudent person in fear of not receiving a fair and impartial proceeding.

In a previous case, the JCC in question had referred the claimant to the Florida Bar.

The JCC had referred the claimant's attorney to the Florida Bar for pursuing a claimant paid attorney's fee in an improper situation.  In referring the claimant's attorney to the Bar, the JCC found that the claimant's attorney was "not credible," had made false misleading written statements and had willfully overcharged for legal services.

While reports of unprofessionalism of a particular attorney to The Florida Bar cannot be the basis of disqualifications, the judge in this instance charged the claimant's attorney in previous proceedings with more than just unprofessionalism,  Not only had the judge made findings of unprofessionalism by the claimant's attorney, findings were also  made of criminal deceit as a part of an established pattern of behavior in other cases not before him.  There was a finding of dishonesty and the claimant's attorney had committed a crime in these other proceedings suggesting that such findings went beyond just a finding of unprofessionalism.

Based on allegations in the Motion to Disqualify, the JCC erred in not disqualifying himself in these proceedings.

An award of specific costs to the prevailing party pursuant to Section 440.34(3), Florida Statutes (2011) is generally reviewed for abuse of discretion.  In reviewing a discretionary act, the appellate court should apply the "reasonableness test" to determine whether the trial court abused its discretion.  Court agreed with the claimant that the costs reasonably necessary to defend the claims in this instance would not include the cost of the condensed versions of deposition transcripts which was incurred in addition to the cost for the original and one copy (i.e., a third copy of the depositions).  Court reduced the costs awarded to exclude the $150 in costs for the condensed transcripts.  As modified, the JCC's award of costs against the claimant was affirmed.

An employer may offer evidence of a congenital condition to overcome the occupational presumption of compensability of a heart or hypertension condition created by Section 112.18, Florida Statutes.  In this case, the JCC's finding that the claimant's condition was not congenital was a finding that may have contributed to the ultimate conclusion in this case.  The employer argued that the JCC ignored or overlooked parts of the medical opinion testimony when he concluded in an order that the claimant did not have a congenital condition.  The court determined that apparently the JCC had overlooked or failed to address the testimony of one doctor who indicated that the claimant's preexisting condition created the medical problems for which the claim had been filed. Where it is demonstrated that the JCC overlooked or ignored evidence which if considered by the JCC could change the outcome of the case, the proper remedy is reversal and remand for consideration of this evidence.  Case reversed and remanded to the JCC for consideration of the medical evidence in its entirety.

JCC denied permanent total benefits as claimed by the claimant's attorney since the claimant had not reached maximum medical improvement and it was premature to make the determination on PT entitlement.  A claim was thereafter filed for temporary total compensation from the date benefits had been discontinued.  JCC denied the claim for temporary total based on the doctrine of res judicata since the claimant could have pled a claim for temporary total disability benefits when permanent total benefits were claimed and denied. On appeal, JCC's decision deemed error.  A lower court's ruling that bars relief on the grounds of res judicata is reviewed de novo. 

The doctrine of res judicata can be applicable to workers' compensation cases.  The general principle behind the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is absolute and puts to rest every justiciable issue as well as every actually litigated issue.  The foundation of the doctrine of res judicata is the existence of a final judgment on the merits in a previous action.  Thus, where there is an absence of a final adjudication on the merits, res judicata does not apply. 

The prior order entered by the JCC finding MMI not to have been reached withheld adjudication on the entirety of the claimant's claim for PTD benefits, with no portion of the claim being adjudicated with finality because the JCC concluded the claim was premature.  The denial of the PT claim was expressly made without prejudice.  The dismissal of a prematurely filed claim does not bar a subsequent action under the doctrine of res judicata.

Plaintiff's employer entered into an employee leasing arrangement with appellant leasing company. Pursuant to that agreement, there was an arbitration clause which required that any dispute with the leasing company be arbitrated in Texas.  Plaintiff was injured in a work related accident and his employment was terminated shortly thereafter.  Plaintiff then sued the leasing company for wrongful termination claiming that the reason he was terminated was because he made a valid claim for workers' compensation benefits.  The question in this claim is whether the arbitration clause requiring arbitration in Texas applied in this instance to the plaintiff's claim for wrongful termination.  Trial court denied leasing company's Motion to Compel Arbitration ruling that the arbitration provision was invalid because it did not exclude workers' compensation proceedings from its scope and it violated public policy by requiring an hourly wage employee to arbitrate an employment dispute in a state other than Florida.  The standard of review for denial of a Motion to Compel Arbitration is de novo. 

Under both federal and state law, there are three elements to consider in ruling on a Motion to Compel Arbitration of a given dispute: 1) whether a valid written agreement to arbitrate exists; 2) whether an arbitrable issue exists, and 3) whether the right to arbitration is waived.  It is for the court, not the arbitrator, to determine whether a valid written agreement to arbitrate exists.  It is also for the court and not the arbitrator to determine whether an arbitration agreement violates public policy. 

An agreement to arbitrate future disputes in another jurisdiction is outside the authority of the Florida Arbitration Code and therefore renders the agreement to arbitrate voidable at the instance of either party.  If, however, the Federal Arbitration Act applies to the agreement, a Florida court must enforce a valid arbitration clause which provides for arbitration in a foreign state.  The Federal Arbitration Act applies to a transaction that in fact involves interstate commerce even if the parties did not intend the transaction to have an interstate commerce connection.  The court in this case determined that the employment transaction between the plaintiff and the leasing company involved interstate commerce and accordingly, the arbitration clause to arbitrate outside of the state of Florida was enforceable. 

An agreement to require arbitration of a workers' compensation retaliation claim is not violative of public policy.  The court determined that a claim for workers' compensation benefits is distinct from a cause of action of retaliatory discharge under Section 440.205, Florida Statutes.  Because the Federal Arbitration Act applied, the fact that the agreement provides for arbitration in another state is not grounds for invalidating it. 

Court also determined that the leasing company did not waive its right to arbitrate the retaliatory discharge claim in another state.  The leasing company took no action that was inconsistent with its right to arbitrate the plaintiff's retaliatory discharge claim.  The filing of a workers' compensation claim for workers' compensation benefits did not constitute a waiver of the right to arbitrate a retaliatory discharge claim. 

Finally, the plaintiff did not establish any defenses to arbitration such as duress or unconscionability.

The court interpreted the formula for computing an attorney's fee under Section 440.34(1), Florida Statutes.  Because the court engaged in statutory construction, review was de novo.

At mediation, the parties agreed to settle for a certain sum with the claimant paying a fee based upon the formula outlined in Section 440.34(1), Florida Statutes.  The parties also agreed that the employer/carrier would pay a fee based on the claimant's attorney's having secured past indemnity benefits. (Side fee.)  The JCC approved the claimant paid fee based on the settlement but declined to approve the side fee. The JCC reasoned that there can be only one $5,000 in benefits secured for which a 20% fee can be approved and only one $5,000 in benefits for which a 15% fee can be approved.  Once the $10,000 threshold is reached in the life of the case, any additional fee would be limited to 10% of the benefits secured.  Accordingly, the side fee should be based on 10% of the benefits secured in this instance since the settlement of the entire case was more than the $10,000 threshold amount.  On appeal, JCC's determination that the side fee should be based on 10% of the benefits secured reversed.

The court ruled that there can be more than one claim that would qualify for the application of the attorney's fee formula and the limitations as found in Section 440.34(1), Florida Statutes, applies to each claim filed and not cumulatively to all claims.

Attorney's fees claimed under Section 57.105, Florida Statutes, are not awardable in workers' compensation proceedings before a JCC. The Florida Workers' Compensation Law sets forth in Chapter 440 the liability of an employer thereunder as exclusive and in place of all of other liability to an injured employee.  There are a host of specific sanctions and remedies which includes attorney's fees for frivolous claims and defenses under Section 440.32, Florida Statutes. Section 57.105 contains no suggestion of legislative intent to include workers' compensation cases in this award of attorney's fees.  Section 57.105, Florida Statutes, only applies to an award of reasonable attorney's fees for baseless claims and defenses raised in administrative proceedings pursuant to Chapter 120, Florida Statutes.  There is no similar amendment to Section 57.105(5), Florida Statutes, that would expressly include workers' compensation cases.  Under the doctrine inclusio unius est exclusio alterius, an inference must be drawn that the Legislature did not intend to include workers' compensation proceedings within Section 57.105, Florida Statutes.  Court determined that JCC properly denied claimant's award of attorney's fees under Section 57.105, Florida Statutes.

JCC improperly denied claimant reimbursement for any and all of the costs for two videotaped depositions.  A denial of costs is subject to review under an abuse of discretion standard. 

The JCC in this case denied the cost of videotaping the depositions without proof that the witnesses would be unavailable to testify live at the final hearing.  The JCC did not consider the reasonableness of claimant's strategic decision to videotape the testimony of adverse witnesses who might later testify and be cross examined using the videotaped depositions.  This was the correct standard for determining if the cost for the videographer could be awarded.  The standard was not a showing that the claimant must prove that the witnesses could not appear at the trial.  Even though the videotaped depositions might be used in subsequent civil proceedings against the employer, they still could be taxable costs.  Costs incurred exclusively for a purpose unrelated to the workers' compensation claim would not be reimbursable; however, the fact that the depositions may ultimately serve a dual purpose is not enough to preclude the associated expenses as a reasonable cost in the pursuit of workers' compensation benefits.

JCC erred in granting the employer/carrier's Motion for Summary Final Order based on the application of Rule 60Q-6.116(2) often called the "two dismissal" rule. The claimant had filed three claims for permanent total disability benefits and the employer/carrier alleged in the Motion for Summary Final order that the first two dismissals acted as an adjudication of denial for permanent total disability benefits as alleged in the third petition.  See American Woodmark Company v. Sipe, 117 So. 3d 70 (Fla. 1st DCA 2013).  JCC had determined that the two dismissal rule bars a PTD claim under principles of res judicata where two prior voluntary dismissals of a PTD claim had been entered.  The appellate court's review of a summary final order is de novo.

In determining if the two dismissal rule applies in any case, the elements of res judicata must be applied.  If res judicata is to apply, the determining factor is whether the cause of action being sought is the same as the previous claims dismissed and whether the facts or evidence necessary to maintain the claim are the same in all actions. It is this factor that is key to determination of whether the claimant's third Petition for Benefits was barred by the two dismissal rule in res judicata.  Even where the class of benefit may be the same (in this case PTD), the question remains as to whether the evidence is the same in proving all of the claims.  The burden in this case was on the employer/carrier as the moving party to prove that the claims were the same.  In this case, the court determined that the third petition for PTD claimed entitlement effective on a date subsequent to the filing date of the previously dismissed petitions.  In addition, the third petition alleged a new condition that required consideration in determining if the claimant was PTD.  These new allegations represent a difference of fact than were present in the previously dismissed petitions and accordingly, in this case, the two dismissal rule did not apply.

Section 440.15(3)(c), Florida Statutes (2002), limited the payment of "temporary impairment and supplemental income benefits" to 401 weeks.  Court determined that this 400 week limitation of "temporary benefits" included the 104 weeks of temporary benefits as provided in Section 440.15(2) and (4), Florida Statutes.  Dissenting opinion.  Since decision of court concerned the interpretation of a statutory provision, the appeal was reviewed de novo.

Claimant's treating doctor recommended the claimant be evaluated by a Spanish speaking neuropsychologist.  The employer/carrier provided a neuropsychologist but authorized a translator to accompany the claimant to this appointment rather than scheduling a Spanish speaking neuropsychologist.  The basis of a referral to a Spanish speaking psychiatrist in neuropsychologist was the possibility that the referral doctor would get the wrong information without adequately communicating with the claimant.  The JCC found that the referral based solely on the possibility that one could get the wrong information did not equate to medical necessity for such a referral and accordingly denied the specific request for the Spanish speaking physician or psychologist.

A determination of reasonable medical certainty depends on the substance of the evidence rather than the use of "reasonable medical certainty" terminology or on any other so called magic words by a medical witness.  This is a factual issue that remains within the adjudicatory function of the JCC based on the substance of the evidence presented.  Court on appeal determined that there was sufficient evidence of record sustaining the JCC's determination of a lack of medical evidence concerning the necessity for treatment.  It may have been preferable for a Spanish speaking physician to treat the claimant but Section 440.13(2)(a), Florida Statutes, requires that recommended treatment be medically necessary if the employer is to pay for it.  Court determined that the JCC did not err in rejecting the testimony of the authorized doctor that a Spanish speaking physician was necessary to provide care for the claimant.

Unrebutted medical testimony can be rejected by the JCC so long as there is a reasonable evidentiary basis for doing so.  A reasonable basis for the JCC to reject medical testimony can include conflicting medical evidence; evidence that impeaches the expert's testimony or calls such testimony into question, such as a failure of the claimant to give the medical expert an accurate or complete medical history; or conflicting lay testimony or evidence that disputes the claim. 

Concurring opinion concluding that the provision of a qualified psychiatrist, coupled with an interpreter, met prevailing standards of care related to medical necessity of treatment as provided for in Section 440.13(k), Florida Statutes (2014).  Dissenting opinion opined that this case of first impression incorrectly denied a Spanish speaking claimant a medically necessary evaluation by a Spanish speaking psychiatrist, a treatment which the claimant's authorized doctor recommended that the claimant receive.

Court determined that it was error to compensate the claimant's attorney for fewer hours than those claimed in a Verified Petition for Attorney's Fees without specifically explaining the basis for reducing hours.  The reasonableness of an attorney's fee award is reviewed for competent substantial record evidence in support of the award.  The JCC did review the various factors and made general findings concerning the amount of the attorney's fee.  However, no specific basis for reducing the claimant's attorney's hours was explained.  Accordingly, the case was remanded for further proceedings with directions that the JCC make findings that will allow meaningful appellate review. 

JCC entered order determining that claimant was not entitled to further medical care for cervical and shoulder problems and that the accident was only a temporary aggravation of a pre-existing condition.  Thereafter, an additional petition was filed requesting right shoulder treatment.  The employer/carrier filed a Motion for Summary Final Order asserting that the previous order entered by the JCC was Res Judicata prohibiting a relitigation of the issue concerning treatment of the claimant's right shoulder.  The claimant filed a response attaching a medical report from the treating physician noting the need for treatment to the shoulder.  Thereafter, the JCC entered an order granting the Motion for Summary Final Order.  The appeal of this case concerned the granting of the Motion for Summary Final Order.

Review considered de novo.  Rule 62.-6.120 provides for the filing of a Motion for Summary Final Order and directs the opposing counsel to file a response to the motion within thirty days together with supporting depositions, affidavits, and other documents.  The JCC then enters an order and if there are no genuine issues of material fact, the moving party is entitled as a matter of law to the entry of a final order if dispositive of the issues in the case.  Issues that would be dispositive include whether the claimant is barred by Res Judicata, which was the issue in this case.

The response in this instance by the claimant to the motion was only that the authorized treating physician had written a prescription for treatment to the claimant's shoulder.  Court determined that the response to the motion by the claimant failed to demonstrate any material fact issue precluding application of the doctrine of Res Judicata based upon the previous order entered.  The claimant argued that the treatment was for diagnostic purposes but the affidavit attached to the response to the motion did not demonstrate the existence of any new facts inconsistent with the JCC's prior order denying treatment.

Claimant's attorney filed a motion requesting that the JCC enter an order appointing an expert medical advisor because of a conflict in the medical evidence as to the claimant's maximum medical improvement date.  The motion to appoint the expert medical advisor directed the JCC to appoint the expert medical advisor asking the JCC on his own motion to make the appointment.  Rather, the JCC entered an order requiring the appointment of an EMA as requested by the claimant's attorney thereby making the claimant responsible for all costs associated with the EMA.

Court determined that JCC erred in considering the motion for the appointment of an EMA a motion filed by the claimant requiring the claimant to be responsible for the cost of an EMA.  Claimant's attorney notified the JCC of the conflict in the medical evidence.  JCC should have ordered the EMA and in accordance with Section 440.19(9), the appointment should have been made on the judge's own motion to be paid for by the employer/carrier. 

Statutory interpretation is a question of law, reviewed de novo on appeal.  Interpretation of written pleadings is also reviewed de novo on appeal. 

The claimant had sought a ruling from the appellate court that the EMA provisions of the workers' compensation statute were unconstitutional.  However, an appellate court, when presented with the possibility of reading a statute in a constitutional manner versus determining it unconstitutional has a duty to construe the statute in such a way as to avoid conflict with the constitution.

JCC erred in rejecting testimony of EMA that accident caused claimant's injuries.  When the JCC rejects the opinion of an EMA, on appeal that decision is reviewed based upon the competent and substantial evidence standard.  There must be clear and convincing evidence in existence to contradict the opinions of an EMA.

When a JCC rejects the opinion of an expert medical advisor, on appeal, the record is reviewed for competent and substantial evidence to support the JCC's determination that clear and convincing evidence existed to contradict the EMA's opinion.  In this case, because the JCC failed to articulate clear and convincing reasons for rejecting the EMA's opinion testimony, the JCC erred in awarding the requested benefits claimed by the claimant.  Likewise, the JCC erred in awarding attorney's fees and costs.

Court determined that it was an abuse of discretion by the JCC in failing to allow for a continuance of a hearing to take the deposition of a doctor or allow for post-hearing depositions to be taken in accordance with Rule 60Q-6.121(5).  The treating physician's deposition had been scheduled but at a wrong address where the doctor was located.  The deposition could not be rescheduled before the final hearing although the employer/carrier's attorney had offered to take the deposition by telephone.  Such denial constituted reversal error since the right of a litigant to call witnesses is an important due process right.

Claimant had argued that it was harmless error not to allow for the deposition to be taken.  The test for harmless error in workers' compensation cases is whether "but for error, a different result may have been reached." The proper inquiry centers upon whether the error may yield a different result than that which was determined by the JCC.

The final determination made by the court was that it was an abuse of discretion for the JCC to deny the employer/carrier' right to take the deposition of the claimant's authorized doctor.

4th DCA.  The standard of review of an order granting summary judgment is de novo.  When reviewing an order granting summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party.  It is the burden on the party moving for summary judgment to prove conclusively the complete absence of any genuine issue of material fact.

The question in this case related to whether the plaintiff was deemed to be an employee of a subcontractor, providing exclusive workers' compensation immunity in a civil cause of action against the general contractor.  In particular, this case concerned whether the plaintiff qualified as an owner/operator of a motor vehicle that transported property under a written contract with a motor carrier in accordance with Section 440.02(15)(d)4, Florida Statutes.

In this case, the alleged owner/operator had contracted with an entity identified as a "broker" and it was alleged by the plaintiff that such broker relationship did not constitute a contract with a motor carrier as referenced in Section 440.01(15)(d)4, Florida Statutes.  It was undisputed that the plaintiff otherwise met the statutory elements of an owner/operator status as referenced in this statutory provision. 

Utilizing the definition of a "motor carrier" as provided in Section 320.01(3), Florida Statutes and federal law, the court concluded that the term "broker" was not included in the definition of a motor carrier.  Also the Code of Federal Regulations definition of a "broker" was utilized by the court in this case in determining that a motor carrier contract did not exist.  Whether a company is a broker or a carrier is not determined by what the company labels itself as but by how it represents itself in the world and its relationship to a shipper.  Because the difference between a carrier and a broker is often blurry, the carrier/broker inquiry is inherently fact intensive and not suited to summary judgment.

To the extent a JCC's order turns on a resolution of the facts, the standard of review is competent and substantial evidence.  To the extent it involves an interpretation of the law, the standard is de novo. 

Once compensability of an injury is established, a carrier can no longer contest that the accident is the major contributing cause of the injury.  To avoid responsibility for treatment thereafter, the employer/carrier must demonstrate a break in the causation chain between the accident and the injury for which treatment is sought.  In this instance, the JCC rejected the assertion that the claimant suffered a subsequent injury that could have been the major contributing cause of the claimant's injuries along with all medical opinions founded upon this proposition.  Because of the fact that the employer/carrier produced no affirmative evidence of another competing cause of the claimant's injuries following the compensable accident, the claimant satisfied his burden of persuasion in establishing the compensability of the medical condition for which treatment was sought.

In determining the definition of emergency treatment as that term is used in Section 440.13(1)(f), Florida Statutes, the court referenced Section 395.002(9)(a), Florida Statutes.  An emergency medical condition is a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:  (1) serious jeopardy to the patient's health (2) serious impairment to bodily functions (3) serious dysfunction of any bodily organ or part.  In proving whether emergency care services have been provided, and determining compensability under Chapter 440, the following questions must be answered in the affirmative:  (1) whether the service provider is a licensed physician (or other appropriate personnel acting under the supervision of a physician); (2) whether an evaluation, screening or examination was conducted by that physician (or other authorized personnel); and (3) whether such care was undertaken by the physician with the intent of determining if an emergency medical condition exists.  See Section 395.002(10), Florida Statutes (2005).  If each of these questions are answered in the affirmative, such services are deemed to be emergency.  The actual compensability of the emergency care without specific authorization from the carrier the care must be medically necessary and caused by the workplace injury.

In this case, the court determined that the emergency treatment being provided was in fact emergency care compensable under the workers' compensation statute.  Because it was compensable as emergency care, the medical provider was deemed to be "authorized" as a matter of law.  Routine medical care must be authorized by the carrier and only through such authorization can the physician become eligible for payment (except for the self help provisions of Section 440.13(2)(c), Florida Statutes, in which the employer/carrier had wrongfully denied treatment).  As an authorized doctor providing medical treatment, the doctor's opinions were admissible as an authorized doctor.

In determining whether treatment was emergency care, the patient/claimant need not actually suffer a loss of bodily function or serious function to a body part to meet the emergency definition; rather, the question is whether in the absence of immediate medical attention such effects might reasonably be expected to occur.

Court also reviewed the JCC's finding that the emergency surgery was not compensable since the emergency provider failed to give the employer/carrier timely notice of emergency treatment in accordance with Sectioin 440.13(3)(b), F.S.  Court noted however that Section 440.13(3)(b), Florida Statutes, does not set forth any penalty to the claimant for an emergency health care provider's failure to provide timely notice of emergency treatment to the employer/carrier.  To the extent that this statutory notice requirement might affect the amount of money that the doctor was entitled to receive, as opposed to his eligibility for treatment or compensability of the treatment, the JCC had no jurisdiction over any billing disputes between the doctor and the employer/carrier.  Concurring in part decision.

A JCC's award of unauthorized emergency room treatment is reviewed for competent substantial evidence.  Court reversed JCC's determination that medical care was provided on an emergency basis.  However, there was no competent substantial evidence to support the fact that the medical treatment was causally related to the workplace injury.  It was the claimant's burden to prove that the treatment, although provided on an emergency basis, was related to the compensable accident.  The causal relationship for conditions that are not readily observable must be shown by medical evidence only.  The claimant's testimony standing alone will not support a finding that the treatment was causally related and medically necessary for a compensable injury.

On cross appeal, JCC's denial of temporary partial benefits for a period of time was reversed.  The test for determining whether physical limitations after an accident are a contributing cause to a loss of wages is whether the claimant's capabilities allow her to return to work at a prior job with the employer and whether the workplace injury caused a change in the employment status resulting in a reduction of wages below 80% of her pre-injury average weekly wage.  Once the claimant satisfies the initial burden of proving a causal connection for wage loss, this causal connection remains the established cause unless and until an intervening or superseding cause is demonstrated by the employer/carrier.  In this instance, the employer/carrier did not establish affirmative defenses to the initial finding of a causal relationship between the accident and reduced wages, i.e., deemed earnings because work was available or voluntary limitation of income, either of which would have been an intervening or superseding cause, the JCC erred in denying payment of benefits for periods of time subsequent to the finding that the accident on the job caused wage reductions.

With respect to a claimant who is not represented by counsel, settlement agreements are contingent upon JCC approval for the formation of a binding agreement and are not a legal agreement until approved by the JCC.  Court refused to enforce settlement between employer/carrier and unrepresented claimant based upon a signed mediation agreement.  Because resolution of the case involved the JCC's application of undisputed facts to the law, review by the appellate court was de novo.

A finding that the claimant is at statutory maximum medical improvement (MMI) because of the fact that temporary benefits have been exhausted (i.e., 104 weeks of benefits had been paid)has no place in a determination as to whether the claimant is entitled to permanent total disability benefits.  The date of MMI is defined as "the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability."  See Section 440.02(1), Florida Statutes.  Case remanded to JCC for a determination as to whether the claimant had reached MMI.  If the claimant had not reached MMI as defined by statute and statutory MMI has been reached because of the fact that all temporary benefits have been paid, the JCC should determine whether the claimant would be permanently and totally disabled when she does reach MMI at some future date.  On the other hand, if MMI as above described has been reached, the JCC should then determine whether the claimant had established permanent total disability benefits based on the three alternative methods as set forth in Blake v. Merck & Company, 43 So. 3d 882(Fla. 1st DCA 2010).  Case remanded to JCC for a determination as to whether MMI had been reached or not.

The parties had stipulated that MMI had been reached.  The JCC is not bound by the parties' stipulation regarding MMI if it is not supported by the record.  It is the obligation of the JCC as the trier of fact to determine the correct date of MMI.

The JCC  found that no good faith work search had been performed thus precluding a PT finnding.  The court on appeal, however, ruled that a determination on the good faith work search was premature because no date for MMI had been ascertained.  It is the employee's permanent limitations and restrictions at the time of MMI is reached that is relevant in determining whether there was a good faith work search.

This case determined taxable costs to be awarded the prevailing party (employer/carrier in this instance) in workers' compensation proceedings.  The award of specific costs is reviewed on appeal for abuse of discretion.  To the extent that such resolution requires statutory interpretation, the appellate court's review is de novo.

Section 440.13(10), Florida Statutes (2007), allows for a health care provider to provide depositional testimony and charge $200 per hour.  $200 per hour is the maximum that can be obtained as a cost reimbursement.  The $200 per hour reimbursable amount only applies to physicians that provide actual services.  This includes physicians performing IMEs non-refundable reservation fees charged by physicians in excess of the actual time giving or preparing for a deposition are not reimbursable costs.

For doctors that testify as to the provision of professional services that were unrelated to the workers' compensation case, their fees/costs are capped at $200 per day.  Two doctors that testified in this case were described as being "fact" witnesses.  Fees for these doctors' depositional testimony for determining taxable costs are capped at $200 per day.  On the other hand, if they were authorized treating providers or IMEs, their fees in determining costs would be computed at $200 per hour.

All depositions of the claimant whether taken before the filing of an actual Petition or regardless of whether they were used as evidence at the time of the hearing, are taxable.  The employer/carrier's attorney testified that all depositions were taken for reasonable discovery purposes.  A condition for the reimbursement of costs is not that the deposition of the claimant must have been admitted into evidence.

Only "no show" fees charged by IME doctors are reimbursable as costs.  A claimant is not liable for a "no show" fee charged by an authorized provider.  These charges are more in the nature of claims costs rather than litigated costs.  In addition, a claimant is not responsible for a records review made by the doctor.  See Section 440.13(3)(g), Florida Statutes (2007).

The IME doctor in this instance charged a non-reimbursable fee for reserving time for an updated IME.  Court determined that this was not a reimbursable cost.  There is only a fee for a "no show" charge for the actual IME.

The appellate court reviews for competent and substantial evidence a JCC's ruling as to whether a claimant is entitled to temporary disability benefits. 

Claim was made in this instance for temporary partial benefits and the question was whether the claimant's unemployment status was causally related to the injuries/disabilities associated with the compensable accident.  Court determined that evidence of an unsuccessful job search is an alternate means by which a claimant may establish a causal relationship between a claimant's compensable injuries and the claimant's partial wage loss where the claimant is unable to establish that her compensable restrictions precluded adequate performance of her prior job.  A job search is not required when a claimant establishes that termination was caused by the claimant's inability to perform her job due to her compensable injuries.  The cause of the claimant's displacement from employment and wages, once established, remains the cause until an intervening or superceding cause is established.

In this case, the JCC had determined that, as a result of the claimant's workplace injuries, she was unable to successfully perform the task of her pre-injury job.  Accordingly, there was supporting evidence for the award of temporary partial benefits and the denial of such by the JCC was error.

There are express affirmative defenses to a claim for temporary partial disability benefits of which the employer/carrier bears the burden of persuasion.  One such defense is "misconduct".  See Section 440.15(4)(e), Florida Statutes.  In this case, the JCC rejected the employer/carrier's argument that the claimant was terminated for cause unrelated to her compensable injuries.

The claimant was the owner of the employer corporation.  He was president and his wife acted as corporate secretary and chief operating officer handling all of the business details for the corporation.  Claimant sustained an accident traveling between jobs and the claimant's wife reported the accident to the insured's automobile insurance company.  Medical treatment for the accident was provided under the PIP insurance coverage of the auto policy.  No notice was initially given to the WC insurance company.  Once ntoice was given to the carrier workers' compensation benefits were denied by the carrier citing lack of timely notice of accident pursuant to Section 440.185, Florida Statutes.  JCCdenied claim finding that the claimant and the employer were in effect the same party and because there was no timely notification to the carrier of the injuries until approximately 90 days after the accident.

When the facts are not in dispute, the JCC's application of the law based on those facts is reviewed de novo.  When the issue is one of statutory interpretation, appellate review is de novo. 

Even though claimant was the owner of the employer, notice of the accident to the employer was sufficient to establish proper notice.  Section 440.41(1), Florida Statutes, provides that when the employer is not a self insurer, notice to and knowledge of an employer of recurrence of an injury constitutes notice to or knowledge of the carrier.

The statutory penalty imposed upon an employer who fails to timely report injuries is as set out in Section 440.185(9), Florida Statutes.  To require claimant to inform a carrier of his injury within 30 days, the JCC in effect impermissibly created an equitable or non-statutory remedy.  Workers' compensation is purely a creature of statute and all rights and liabilities under the system are as established by Chapter 440, Florida Statutes.  General equitable principles do not permit non-legal (equitable) permutations of the law by requiring notice be given by the injured worker to the carrier. 

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.

Claiming repetitive trauma injuries in 1999 and 2008 for a diagnosed carpal tunnel syndrome, JCC's orders denied benefits finding no compensable accidents.  A third repetitive trauma injury was alleged in 2010 which the JCC denied because of the fact that there was no showing of a change in the claimant's condition following the two previous denials of benefits.  Court determined that JCC erred in requiring a change of condition to prove the compensability of the third alleged repetitive trauma accident.  No change in condition need be shown given the claimant's allegation of a subsequent repetitive trauma injury because every exposure to a job related trauma constitutes a new accident.  The doctors in this case were unable to show that the claimant's medical findings following the alleged 2010 accident were different from the symptoms she had in 2007.  The court determined that this was not depositive of a claim based on repetitive trauma.  Repetitive trauma can be proven by demonstrating a series of occurrences, the cumulative effect of which is injury.

Section 440.09(1), Florida Statutes, requires that causation be established by clear and convincing evidence in cases of repetitive trauma or exposure.  There is no requirement that the claimant prove that the condition has changed or somehow worsened.  The proper legal standard is a showing by clear and convincing evidence that an accident occurred.  That is, that the injury and its occupational cause be established to a reasonable degree of medical certainty based on objective relative medical findings.

In accordance with Section 112.18, Florida Statutes, only hypertension that is arterial or cardiovascular qualifies for the presumption of compensability.  In this case, the claimant was diagnosed with essential hypertension.  Unrefuted medical opinion testimony indicated that essential hypertension is the same condition as arterial hypertension.  The court had previously determined that essential hypertension was not covered by the presumption.  However, essential hypertension is not as a matter of law not covered by the presumption.  Such a determination is based on the facts of a case.  Where a claimant seeking to rely on Section 112.18, Florida Statutes, produces no evidence that his hypertension is arterial or cardiovascular, the claimant is not entitled to the presumption of compensability.

A JCC is permitted to reject even unrefuted medical testimony if he gives a reason for doing so in order to allow for appellate review.  In this case, the JCC rejected medical opinion because of the JCC's misunderstanding of the case law that essential hypertension is, as a matter of law, not arterial or cardiovascular.  Such rejection of unrefuted testimony was deemed error in this case.

2nd DCA.  In death claim, petition for workers' compensation benefits was filed which resulted in a settlement agreement.  Thereafter, civil cause of action filed against employer by personal representative of deceased employee.  A Motion to Dismiss was filed in civil cause of action alleging that the plaintiff had elected remedies under the Workers' Compensation Statute and accordingly was barred from filing the civil cause of action against employer.  Lower court granted Motion to Dismiss.  On appeal, decision of lower court reversed.  Appeal considered on a de novo review by appellate court.

Election of remedies is an affirmative defense that is not properly raised by means of a Motion to Dismiss where the affirmative defense does not appear on the face of the complaint.  In this case, the lower court considered matters outside of the four corners of the complaint in granting the Motion to Dismiss.  If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to dismissal on the basis of a motion.  The fact that the claimant had filed a petition for workers' compensation and had settled that case did not appear on the face of the complaint or any attachments to the complaint.  Rather, it was supplied by the employer through various documents and an affidavit filed in support of its Motion to Dismiss.

Alternatively, the court determined that the lower court erred in dismissing the complaint with prejudice because the plaintiff in such circumstance had the right to amend the complaint once as a matter of right.  An ore tenus motion was filed by plaintiff at the time of the hearing on the Motion to Dismiss.

In accordance with Florida Rule of Civil Procedure 1.190(a), a party may amend a pleading once as a matter of course at any time before a responsivle pleading is served.  Court determined that the filing of a Motion to Dismiss was not deemed to be a responsive pleading and accordingly, the plaintiff in this instance should have been allowed to amend the complaint. 

While represented by counsel, claimant entered into a separation agreement with the employer.  After signing the separation agreement, he filed a Petition for Benefits claiming an  accident on the job.  Employer alleged that the separation agreement constituted a settlement of his workers' compensation claim and since he was represented at the time, it was not necessary for a judge to approve the settlement.  Appellate review of case de novo since it involved the construction of a written instrument.

Because of the fact that the claimant was represented by an attorney at the time he completed the separation agreement ending his employment with the employer, the JCC did not need to approve the settlement if in fact it was a settlement of any workers' compensation claim.  In this case, the court determined that the separation agreement was broad enough to include a possible workers' compensation claim.  The plain language of the separation agreement included a workers' compensation claim and since the agreement did not require submission to the JCC for approval, court determined that all workers' compensation claims had been released.  JCC erred in finding that the claimant had not settled his workers' compensation claim when he entered into the separation agreement.  Dissenting opinion.

Claim controlled by the managed care provisions of Section 440.134, Florida Statutes (2000).  Because resolution of the issue in this case required interpretation of a statute, the appellate review is de novo.

Claimant became dissatisfied with her treating orthopedic physician and requested a change in orthopedic physicians.  Thereafter, she became dissatified with her primary care physician and sought to change to another primary care physician.  Court determined that the employee whose medical treatment is controlled, provided by a managed care arrangement, he is entitled to select a primary care provider and thereafter select one change in primary care provider even though an alternate medical care orthopedic surgeon had been provided.  The right to select a new primary care provider is not dependent upon a showing of medical necessity.

Pursuant to Section 440.20(8)(b), Florida Statutes, the Department of Financial Services imposed upon the school board penalties based upon the  late payment of temporary total compensation.  The question in this case is whether, for purposes of Section 440.20(8)(b), Florida Statutes, late payments should be interpreted to mean payments made after the date that the payments were due or payments made more than 7 days after they were due.  The Department alleged that the penalties were payable if the temporary total benefits were late in payment and the school board argued that the payments were late for purposes of Section 440.20(8)(b), Florida Statutes, if paid more than 7 days after the benefits were due.

Court accepted review of issue based on statutory interpretation.  Accordingly, review is de novo.  In utilizing statutory interpretation rules and standards, court determined that penalty assessments under Section 440.20(8)(b), Florida Statutes, were payable if the payments were not timely paid with no allowance being given to extending the period for the payments by 7 days.

The school board had argued that penalties assessable under Section 440.20(8)(b), Florida Statutes, should be construed in pari materia with Section 440.20(6)(a), Florida Statutes, because both statutes include the phrase "late payments."  The court however said that the two statutory provisions were different.  The penalty imposed in Section 440.20(8)(b), Florida Statutes, is paid into the Workers' Compenastion Trust Fund and serves a regulatory compliance purpose.  The penalty in Section 440.20(6)(a), Florida Stautes, is paid to the injured employee as additional compensation.  Accordingly, the fact that a 7-day grace period before penalties must be paid to an injured worker under Section 440.20(6)(a) has no bearing on the proper interpretation of penalties payable under Section 440.20(8)(b), Florida Statutes.

Claimant on appeal alleged that JCC's rejection of EMA findings was not supported by record evidence.  The opinions of the EMA are presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.  In this case, however, the court found that the JCC did not reject the EMA's opinion.  Rather, the JCC interpreted the EMA's opinion differently from that of the claimant.  Competent and substantial evidence supported the JCC's interpretation of the doctor's recommendations.

The claimant also alleged that the JCC erred in not adopting the opinion of the EMA regarding recommendations for the treatment of the claimant's lumbar spine because the JCC did not recite clear and convincing evidence in support of his denial of the claim for lumbar treatment.  The JCC specificially found, however, that the EMA made no recommendations for lumbar treatment. 

It is the claimant's burden to prove entitlement to any requested benefit.  When the JCC denied the treatment for the lumbar spine evaluation, concluding that claimant did not meet her burden of proof, it was unnecessary that competent and substantial evidence support the JCC's denial of benefits.  A decision in favor of the party without the burden of proof need not be supported by competent and substantiale evidence.

On appeal, JCC's orders are reviewed to determine if competent and substantial evidence supports the judge's decision.  A decision in favor of the party without the burden of proof does not need to be supported by competent substantial evidence.

JCC dismissed petitions for benefits with prejudice filed by the claimant's attorney because of the claimant's failure to pay (and her failure to attend a hearing to explain her failure to pay) costs ordered to be paid by her after the dismissal of several prior petitions for benefits.  Court determined that JCC abused his discretion in dismissing the petitions for benefits with prejudice.  The record did not establish that the claimant's failure to attend the hearing or pay ordered costs was a willful or flagrant disregard of the JCC's authority.  See Section 440.24(4), Florida Statutes.

The standard of review for orders dismissing a party's case with prejudice is whether the JCC abused his or her discretion.  In this case, the claimant was told by a paralegal in the attorney's office who was previously representing the claimant that the hearing on the issue of costs and the show cause hearing on the failure to pay costs had been cancelled.  DIsmissal with prejudice is the most severe of all sanctions and should be employed only in extreme circumstances such as where the party's conduct was willful, flagrant or deliberate and only when the moving party demonstrates meaningful prejudice.  The facts in this case did not support a finding of willful or flagrant conduct necessary to justify dismissal with prejudice.  Although sanctions may be appropriate for the claimant's unreasonable failure to attend a hearing on the order to show cause why costs had not been paid, the JCC abused his discretion by imposing a dismissal with prejudice.

Section 440.24(4), Florida Statutes, authorizes the dismissal of claims until an employee complies with an order.  The statute could not support the dismissal of the claimant's new petitions for benefits with prejudice.  In deciding this issue, the court assumed, without the deciding, that Section 440.24(4), Florida Statutes, authorizes the dismissal of a subsequent proceeding based on the employee's failure to comply with an order entered in a prior proceeding.  In a footnote, the court specifically noted that it was not determining whether Section 440.24(4), Florida Statutes, is an appropriate mechanism for a party to seek collection or enforcement of a cost order against a non-prevailing adversary. 

Claimant failed to pay costs awarded to the employer/carrier following claimant's unsuccessful attempt to obtain benefits.  Employer/carrier filed Motion to Certify Facts to the Circuit Court because of such failure pursuant to Section 440.33(2), Florida Statutes.  JCC denied motion and this appeal taken.

Resolution of this issue required statutory interpretation, thus review is considered on a de novo basis.  Court in applying the rule of statutory construction "expressio unius est exclusio alterius" determined that the mention of one thing implies the exclusion of another supported the judge's conclusion that the legislature did not intend enforcement of cost awards be resolved through the certification of this issue to the circuit court.  Claimant's failure to pay as directed by the final order, without more, was not intended by the legislature to be conduct addressed through application of this statutory provision.  This statutory provision only related to contempt proceedings used to ensure the orderly conduct of a hearing, not to enforce final orders of the JCC.  A JCC only has those powers conferred by Chapter 440.

Employer/carrier prevailed in hearing before JCC.  As prevailing party, employer/carrier was awarded costs which included those related to the taking of depositions prior to the filing of a petition for benefits for permanent total compensation.  The JCC had previously denied the employer/carrier the right to tax costs for these deposition expenses since benefits had been awarded in a previous petition for which these costs were incurred.  An award of costs is reviewed for abuse of discretion.

Claimant argued that based on the doctrine of res judicata, since the employer/carrier had been denied the taxation of costs in previous proceedings and based on the doctirine of res judicata, such denied costs should not be awarded in these proceedings.  Court rejected this argument based on the fact that workers' compensation proceedings are serial in nature and in some instances matters litigated in one petition can thereafter be relitigated.  In this case,  costs awarded arose in the hearing concerning the petition for permanent total benefits although the same costs were incurred in a prior petition related to the award of medical.  (These costs were denied in the prior hearing since benefits had been awarded.)  Accordingly, res judicata did not bar the award of costs for this proceeding. 

The question in this case was whether a settlement reached at mediation was enforceable.  Whether a settlement agreement reached at mediation is ambiguous or not is a question of law subject to de novo review.

At the time of mediation, the parties agreed to the settlement of the workers' compensation case and agreed to sign a "release."  When the settlement documents were sent to the claimant for signature, the proposed release prepared by the employer/carrier included a comprehensive release covering not only workers' compensation claims but also a wide array of other potential claims under state and federal law.  The claimant refused to sign the release.  The employer/carrier filed a Motion to Enforce the Settlement Agreement.  The judge determined that the mediation agreement was "clear, unambiguous, and enforceable" and entered an order enforcing the agreement.  In doing so and in making determinations, the judge refused to consider the settlement paperwork based on the parol evidence rule determining that such rule precluded the consideration of such extrinsic evidence not contained in the settlement documents. 

On appeal, judge's decision reversed.  The term "release" referred to at the time of the mediation settlement agreement gave rise to a latent ambiguity, making consideration of extrinsic evidence appropriate.  A latent ambiguity (as distinct from a patent ambiguity) arises when the language employed in a settlement document is clear and intelligible and suggests but a single meaning but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.  Release in this instance could have related only to a workers' compensation claim but also to all claims possible that the claimant might have against the employer.  Accordingly, extrinsic evidence was needed to make a determination as to the intent of the parties in entering into the settlement agreement.

Appellate court summarily affirmed JCC's order pursuant to Florida Rule of Appellate Procedure 9.315(a) because there was competent and substantial evidence to support the JCC's acceptance of one doctor's opinion over that of another.  The standard of review in workers' compensation is whether there is competent and substantial evidence supporting the decision below; not whether it is possible to recite contradictory record evidence which supports the arguments rejected below.

1993 accident at a time when the major contributing cause concept in determining causal relationship between accident and resulting injury was was not a part of the law.  Court deemed major contributing cause language in statute substantive and determined that employer/carrier for 1993 accident fully responsible for workers' compensation benefits since the 1993 accident did contribute to the overall need for medical care and disability.  Also, at the time of the 1993 accident also, the apportionment statutes did not allow for the apportionment of medical and accordingly, no apportionment was allowed for the medical treatment provided.  Because of the fact that the court was ruling on the application of the law to undisputed facts, the review by the appellate court was de novo.

Section 440.093, Florida Statutes 2003, discusses the four situations when mental or nervous injuries arise that may or may not be compensable.  Because of the fact that a decision in this case required the court to interpret and apply Section 440.093, Florida Statutes, appellate review is de novo.  The following are the four psychiatric types of injury (referred to in the statute has "mental or nervous injuries") that may or may not be compensable:

1.  Section 440.093(1), Florida Statutes, states that a mental or nervous injury due to stress, fright or excitement only is not an injury by accident arising out of the employment.  An example of this type of injury is where an employee experiences mental trauma after being robbed at gun point but does not suffer a physical injury requiring medical treatment or a situation where an employee suffers a mental or nervous injury as a consequence of witnessing some horrific event at the workplace.

2.  Section 440.093(2), Florida Statutes, mental or nervous injuries that accompany a separate physical injury serious enough to require medical treatment. In this instance, the claimant suffers a physical injury and a separate mental or nervous injury.  For example, if an employee in the course of employment is sexually assaulted in the workplace and suffers a physical injury that requires medical treatment, the physical injury is certainly compensable.  If at the same time, the employee suffers a mental or nervous injury separate and apart from the physical injury, the mental or nervous injury would be compensable.  In this instance, the employee would have simultaneously suffered two compensable workplace injuries:  one physical and one mental.

3.  Section 440.093(1), Florida Statutes, a physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment are not compensable.  Under this provision, an employee will not receive compensation for a physical injury if that physical injury occurred solely and as a result of the employee experiencing mental or nervous trauma at the workplace.  For example, in the situation where a claimant suffers a heart attack because of job related stress, the heart attack would not be compensable.  The physical injury (the heart attack) was caused by the mental or nervous injury (stress, fright or excitement) and would not be compensable.

4.  Section 440.093(2), Florida Statutes.  Mental or nervous injuries which are the manifestation of a physical injury otherwise compensable under Chapter 440 would be compensable.  A "manifestation" is a disease or infection that "naturally or unavoidably" results from an initial compensable workplace injury.  Under this provision, an employee who suffers an initial physical injury requiring medical treatment may recover for an mental or nervous injury that manifests, so long as the initial physical injury is the major contributing cause of the mental or nervous injury.  For example, if an employee loses a limb operating heavy machinery and over time the loss of the limb causes the employee to become clinically depressed or mentally unstable (a nature manifestation of the physical injury) the mental or nervous injury is compensable.  Another example is where an employee suffers a physical injury that causes long term chronic pain.  If the chronic pain eventually results in the employee suffering a mental or nervous injury requiring treatment, the mental or nervous injury would be compensable as the manifestation of the physical injury.

In this case, JCC's order denying benefits reversed and remanded for further proceedings.  The claimant presented evidence relating directly to the type of mental or nervous injury defined in the above referenced second description of a compensable mental injury but made an argument based on the type of injury as defined in the fourth type of mental injury referenced above, i.e., as it related to the major contributing cause of the claimant's mental injuries.

Under the "tipsy coachman" rule, when the trial court reaches the right result but for the wrong reasons, that decision will be upheld on appeal if there is any basis which would support the judgment in the record.  In this case, the judge's decision denying apportionment was upheld on appeal but for reasons different than those given by the JCC in denying apportionment.

The claimant had argued that the legislature did not intend to eliminate the long standing principle that medical benefits and temporary indemnity benefits were not apportionable when the 2003 amendments were made to Section 440.15(5), Florida Statutes.  On appeal, this argument was rejected.  The court specifically determined that the 2003 changes in the law allows for the apportionment of all indemnity benefits both temporary and permanent and all medical benefits both before and after MMI.  When the legislature makes a substantial and material change in the language of a statute, it is presumed to have intended some specific objective or alteration of the law unless a contrary indication is clear.  The changes in Section 440.15(5), Florida Statutes, specifically provides that all benefits and medical are subject to the apportionment principle.

The JCC had denied apportionment of temporary benefits and medical because of the fact that there had been no permanency evidence as to the percentage of permanent impairment related to the preexisting problems suffered by the claimant and the permanency associated with the accident.  However, the court determined that this was error since the referenced provision in Section 440.15(5)(b), Florida Statutes, only related to the apportionment of permanent benefits and not temporary/medical.  Since the issue in this case was the apportionment of medical benefits and temporary indemnity benefits, as opposed to permanent indemnity benefits, it was not required to present evidence of a permanent impairment or disability attributable to the accident in question and the preexisting condition.

Apportionment however is not permitted when the preexisting condition or injury is unrelated to an employment accident.  If the preexisting condition is work related, the employer/carrier may find a remedy for the payment of a preexisting condition in accordance with Section 440.42(4), Florida Statutes, which governs the division of liability between employers where, as in this instance, two or more workplace injures combine to cause the claimant's need for benefits.  Accordingly, to avail itself of the apportionment defense under Section 440.15(5)(b), Florida Statutes, the employer/carrier must present evidence of the extent of the claimant's preexisting condition resulting from non-occupational causes.  Concurring opinion.

Claim for permanent total compensation filed by claimant.  Employer/carrier obtained a vocational evaluation/reemployment assessment with a rehabilitation provider of its choosing.  A copy of the report completed by the employer/carrier's expert was provided to the claimant and the evaluator was listed as a witness on the pre-trial stipulation.  Less than 30 days prior to trial, the employer/carrier sought to delete its initial vocational provider from its witness list and replace it with a different vocational provider whose testimony was more favorable to the employer/carrier's position.  JCC allowed employer/carrier to exclude from evidence the report of the first evaluator to be substituted by the testimony of the second evaluator.

A JCC's decision to exclude evidence is reviewed for abuse of discretion.  A JCC's interpretation of the Evidence Code requires de novo review. 

Under the Florida Evidence Code, all relevant evidence is admissible except as provided by law.  Section 90.402, Florida Statutes (2007).  Court determined that the initial vocation provider's report was relevant and probative of many facts related to the claimant's entitlement to permanent total compensation.  There was no legal basis warranting the exclusion of such evidence.  Although the Legislature has expressly limited workers' compensation litigants to one independent medical examination, it has not created such a limit on vocational/rehabilitation providers.  In some instances, multiple reemployment/rehabilitation services must be provided by more than one individual.  The employer/carrier's argument that the initial provider's report should have been excluded on the basis of the work product privilege was also rejected by the court.  The employer/carrier did not invoke the work product privilege discovery exemption upon or after producing and disclosing the initial provider's report (thereby waiving the objection to such privilege).  In addition, the first evaluator's report did not constitute work product such that it was exempt from discovery.  Section 440.491(4)(b), Florida Statutes (2007) requires the initial vocational provider to furnish its initial reemployment assessment to the claimant.  Accordingly, this report cannot be characterized as work product. 

Claimant's employment with the employer post-accident was terminated for economic reasons.  A claim was thereafter filed for temporary partial benefits and the employer/carrier defended by asserting that the claimant's wage loss was not causally related to his workplace injury.  JCC determined that temporary partial benefits were not payable since there was no causal connection between the claimant's unemployment status and the compensable accident.  JCC affirmed on appeal.

The JCC's order comes to the appellate court clothed in a presumption of correctness.  As such, the JCC's factual findings will not be disturbed unless the appellant can demonstrate no competent substantial evidence to support the JCC's order.  To obtain benefits, a claimant carries the initial burden of demonstrating a causal connection between his injury and subsequent wage loss.  Whether a claimant has established this requisite causal connection constitutes a question of fact determined by the JCC.  Although a job search is not an absolute prerequisite for an award of workers' compensation benefits, it is still necessary for the claimant to show a causal connection between the industrial injury and a resulting loss of earnings.  An unsuccessful job search may be a pertinent factor in determining whether the claimant has satisfied this burden of showing causal connection.  There was sufficient evidence in this case to support the JCC's conclusion that the claimant failed to establish the requisite causal link between his injury and loss of earnings. 

The following must be shown to establish an owner-operator status as described in Section 440.02(14)(d)4, Florida Statutes, creating an exclusion from coverage under Chapter 440, Florida Statutes: 1) a written agreement must exist; 2) the agreement must evidence a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract; 3) under the agreement, the owner-operator must furnish the necessary motor vehicle equipment; 4) the owner-operator must furnish all costs incidental to the performance of the contract; and 5) the owner-operator is paid on commission and not on an hourly basis.  Since the motor carrier in this instance paid for insurance associated with the transportation of products by the alleged owner-operator, court ruled that these payments precluded the creation of an owner-operator status with the motor carrier.  The JCC erred in concluding that an owner-operator status was created since such insurance was of no legal significance.  In a footnote, it was noted that te 2005 Legislature changed the statutory owner-operator exclusion by providing an owner-operator is not an employee if he is required to furnish the principal (as opposed to all) costs incidental to performance of the contract.  See Chapter 2005-78, Laws of Florida; Section 440.02(15)(d)4, Florida Statutes, 2005.

Because of the appellate court's review on construction of the statute in question and the plain terms of the contract between the parties, the standard of review is de novo.  The statute in effect on a claimant's date of injury controls the substantive rights of the parties. 

The common law concept of sheltered employment in determining entitlement to temporary partial disability benefits does not apply. This concept also does not apply to the forfeiture of benefits under the defense found in Section 440.15(6), Florida Statutes, which denies benefits to injured workers if offered employment by the employer within the claimant’s limitations is refused by the claimant. The determination of whether a particular job is considered "sheltered employment" is factual in nature and thus subject to the competent substantial evidence standard for review.

The sheltered employment doctrine applies to permanent and total disability litigation where an employer creates a job for an employee merely as a litigation tactic to deny a permanent total claim. Reasonable job modifications for the purpose of accommodating an injured or partially disabled employee does not make the job sheltered employment. Federal law now requires employers to make reasonable accommodations for their disabled employees.

In regards to temporary partial benefits, wages earned in sheltered employment are considered in determining benefits due in accordance with Section 440.15(4)(a), Florida Statutes (2007). If a temporary offer of employment is perceived to be the result of gamesmanship on the part of the employer, Section 440.15(6), Florida Statutes, allows a JCC to excuse an injured worker from accepting such an offer if the JCC finds the job unsuitable or finds justification in the worker’s stated reason for refusing the job. Accordingly, there is a full remedy for a worker who is offered temporary employment which is borne of bad faith or gamesmanship on the part of the employer. The appropriateness of an offer of modified employment should be evaluated in accordance with the standards set forth in Section 440.15(6), Florida Statutes.

The denial of benefits based on the claimant’s refusal to accept offered employment is an affirmative defense. This statutory defense establishes the clear intent of the Legislature to strongly encourage injured workers to return to work if capable. The method of encouragement chosen by the Legislature was to deny all compensation when the claimant refuses suitable employment. The suitability of the offered employment and the reasonableness of the justifications for refusing the offered job are issues of fact which will not be disturbed in the presence of competent and substantial evidence supporting such findings.

The denial of benefits based on the affirmative defense of refusing offered employment applies only during the continuance of the refusal. Although an employer is not required to continually re-offer a job to avail itself of this statutory defense, the employer must establish the continued availability of the job for each applicable period to obtain the continued benefit of this defense. In this case, the employer had terminated the claimant and up to the date of termination, the employer was able to show that the offered job was available. The employee/claimant in this case had refused to come back to work until he had completed the physical therapy treatments recommended by the authorized doctor. From the date of termination up to the time that the claimant refused to come back to work, competent and substantial evidence supported the denial of temporary partial benefits. After the period that the claimant refused to come back to work, case remanded to determine if the employer had available employment for the claimant.

A properly drafted Petition for Benefits has the effect of tolling the running of the statute of limitations as long as it remains pending. Once filed, the Petition for Benefits remains pending until withdrawn by the claimant or acted upon or dismissed upon motion. The passage of time in and of itself does not terminate the pendency of the proceedings.

In this case, the Petition for Benefits was never dismissed and therefore, the statute of limitations did not run. The JCC dismissed the petition based upon the belief that the petition had been pending for too long. However, the proper procedure to dismiss the petition would have been to file a Motion to Dismiss for lack of prosecution in accordance with 440.25(4)(i), Florida Statutes (2008). That provision permits a JCC to dismiss a Petition for Benefits for lack of prosecution. However such action by the JCC can only be taken in response to a motion by a party or the judge. Dismissal for lack of prosecution would not have been appropriate here because no motion was filed requesting such action.

Read More

Employer/carrier asserted on appeal that since there were disagreements between two independent medical examiners regarding causation, the judge was obligated to appoint an expert medical advisor. However, the employer/carrier never requested that the judge appoint an expert medical advisor. Accordingly, this issue was not preserved for appeal. While the judge has an independent duty to appoint an expert medical advisor when the evidence calls for it, failure to do so does not constitute fundamental error and may not be raised for the first time on appeal.

Read More

Case remanded for further proceedings. Claimant has the burden of proof to show entitlement to workers’ compensation benefits. On review of a JCC’s findings, the question is whether there is competent and substantial evidence to support the JCC’s finding concerning entitlement to benefits. A decision in favor of the party without the burden of proof need not be supported by competent and substantial evidence. A JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves.

Read More

Competent and substantial evidence supported the JCC’s decision that psychiatric or psychological care was not causally related to claimant’s industrial injury. Claimant did not prove by clear and convincing evidence that he required such treatment that was related to the compensable accident. Because the appellate court is not permitted to reweigh the evidence or substitute its judgment for that of the JCC, and the JCC’s findings were supported by competent and substantial evidence, court affirmed JCC’s order. Case remanded to JCC to determine permanent physical impairment rating. Judge’s order indicated that claimant was at MMI with an impairment rating of either 12% or 14%, entitling claimant to a total of 36 weeks or 42 weeks of impairment benefits. Appellate court could not determine which permanent physical impairment rating was accurate.

Employer/carrier, pursuant to Section 440.20(4), Florida Statutes, paid benefits reserving the right to deny compensability of the claim within 120 days after the initial provision of such benefits. Within the 120-day period, compensability was denied. Claimant questioned the investigation performed by employer/carrier that resulted in the denial of benefits. Court determined that an inquiry in to such investigative steps was not necessary in this case since the carrier had timely controverted the claim. Such investigation is only relevant when the employer/carrier failed to timely controvert the claim and the issue is whether facts supporting a denial of compensability could have been discovered during the 120-day period. Court determined that employer/carrier in this instance was not estopped in denying the compensability of the claim.

In determining whether an accident occurred on the job, the JCC, as a finder of fact, is free to accept or reject any evidence (even claimant’s uncontroverted testimony) that an accident occurred. In this case, JCC determined that there was no compensable accident and rejected the claimant’s uncontradicted testimony that the accident did in fact occur. Order denying benefits affirmed.

The issue in this case is whether non-economic damages (pain and suffering) should be excluded from the total amounts payable to an injured worker in determining the amount of the workers' compensation lien.

Court determined that Maryland law did not specifically address whether an insurance company or employer could base its lien on the entire amount an employee recovers from a third party suit or whether the award for pain and suffering should be subtracted from the total award prior to calculating the lien. Court determined that the amount of the lien should be calculated using the total award or settlement and the amounts received for pain and suffering should not be deducted. This is consistent with Florida law.

Read More

Employer/carrier and claimant's attorney agreed on settlement of claimant's claim for benefits. Six days prior to the approval of the JP by the JCC, the claimant was admitted to the hospital for an attempted suicide. This fact was brought to the attention of the adjuster for the employer/carrier and the claimant's attorney. However, neither the JCC nor the attorney for the employer/carrier was advised of this hospitalization. JCC's setting aside of settlement affirmed on appeal. Court determined that claimant's psychiatric condition was a material factor to be considered in evaluating the settlement proposal and the judge's ignorance of this information prevented him from discharging his duties under the statute. Accordingly, the settlement was overturned. Court affirmed JCC's opinion as to the causal connection between the claimant's psychiatric condition and accident. The medical evidence upon which the judge relied was by deposition. Even though the appellate court under these circumstances can make an independent evaluation of the evidence, the case will not be retried on appeal and the resolution of conflicts in the evidence is within the fact finding authority of the JCC. While differing conclusions might arguably be reached by selectively emphasizing and giving greater weight to portions of the testimony of the depositions of the physicians, such a process is part and parcel to the fact finding function of the JCC and the appellate court will not disturb such findings by the JCC. The claimant had severe preexisting psychiatric disorders. Relying on the opinion of Ackley v. General Parcel Service, 646 So.2d 242, the court determined that the compensable accident was a stressor in the resulting psychiatric problems suffered by the claimant and accordingly, there was a causal connection between the injury and the resulting psychiatric condition.

Claim made for permanent total benefits. Deputy Commissioner ordered the payment of wage loss benefits and made no mention as to the PT claim. When evidence is presented on an issue properly before the Deputy Commissioner the final order must reflect at a minimum that the Deputy is aware of the claim and rejected it. Court determined that it was error for the Deputy not to rule on the P.T. issue. However the error was not reversible since there was no competent substantal evidence of record to support a P.T. award.