Print Page   |   Contact Us   |   Your Cart   |   Sign In   |   Register
Case Law Updates
Share |

Thank you to our Law Firm Service Partners for providing this week's Case Law Update! 

Winter Park
1560 Orange Avenue, Suite 500
Winter Park, FL 32789
TEL: (407) 571-7400
FAX: (407) 571-7401

This Update contains summaries of all relevant Appellate decisions for the preceding week, with comments on how a particular decision affects you. In addition, we review daily the Merit Orders posted on the DOAH website. This Update contains summaries and links to relevant JCC decisions for the past week.

Please feel free to contact Rogers Turner ( with questions or comments on any of the listed cases.



JCC Stephenson (Palm Beach) (Andy Borah) –Denied compensability of repetitive trauma and all additional claims;  PFBs dismissed with prejudice.  The claimant alleged a repetitive trauma injury to the right shoulder resulting from the repetitive nature of his work as an installation technician.  He later alleged an injury to his left shoulder from overuse following a surgery for the right shoulder.  Prior medical records from two orthopedists reflected that months before the alleged date of injury involving the right shoulder, the claimant reported right shoulder pain as the result of a specific incident involving lifting a TV months earlier, which contradicted the claimant’s deposition and live testimony.  The patient intake forms completed by the claimant for both doctors also contradicted his testimony.  The JCC pointed out that the attempts to impeach the claimant were effective because his deposition testimony was meaningfully inconsistent with his live testimony.  Ultimately, the JCC concluded that the claimant was not a credible witness.  The JCC also rejected the claimant IME’s opinions as they were based on unreliable information provided by the claimant.  As a result, the JCC ruled that the claimant failed to meet his burden to prove by clear and convincing evidence the requisite elements of a repetitive trauma injury to the right shoulder and, consequently, a compensable injury to the left shoulder.  Compensability was denied and all pending PFBs were dismissed with prejudice.  Click here to view Order

District Court of Appeal Cases

Cal-Maine Foods/Broadspire v. Howard, ___ So. 3d ___ (Fla. 1st DCA 7/26/2017)

Misrepresentation/Elements of Proof

The JCC denied the E/C’s misrepresentation defense. The DCA issued a lengthy, strongly worded opinion finding the JCC erred in doing so for multiple reasons.  The opinion provides extensive detail surrounding the claimant’s misstatements, but in summary he alleged that, in addition to injuring his neck and back, he also (per his amended PFB) sustained facial and brain injuries when he was thrown from a front end loader. The E/C discovered  that several months after the alleged  accident (and his termination for testing positive for meth and driving a backhoe into a body of water), he presented to Shands complaining of headaches after being hit in the head with a baseball bat eight days prior.  He presented  to a second ER a month later complaining of headaches “for a month”. Neither visit mentioned neck or back pain, or a work place accident.  In his first deposition, he stated the bat incident was false, that he later corrected the description (although no evidence showed this) and he failed to mention the workplace incident as he felt he would not receive treatment. The E/C’s IME examined the claimant, and confronted him about the bat incident, which he essentially denied. In deposition, the E/C IME also indicated claimant denied prior neck and back injuries, contrary to records provided to the IME.  The claimant failed to disclose the above information to a treating neurologist as well. Claimant told his own IME the source of his problems was the work accident, with no further information.  The E/C e-filed medical records which documented the Claimant had a history of similar, prior medical complaints and treatment, including: lower back injuries 1997 after an automobile accident; chronic back pain in 2006-2007; medical care and diagnostic studies in 2012 for constant neck pain only relieved by pain medications; injuries from a motorcycle accident, which required ongoing medical treatment for twelve years; and a previous recommendation for cervical surgery. At the merit hearing, the claimant announced he was seeking only compensability for the lower back, and dropped the remaining facial, neck, concussion and brain injury claims.

The JCC, despite the claimant testifying at trial that his allegations of facial/brain injuries were “not true”, denied the E/C misrepresentation defense, finding the multiple misstatements were “moot” for the purpose of obtaining benefits. The DCA disagreed, noting that the E/C must prove 1)  whether a false (or fraudulent or misleading) oral or written statement was made by the person; and 2) whether, at the time the statement was made, it was made with the required intent to obtain benefits. While the JCC clearly found the claimant made multiple misrepresentations, the DCA noted the JCC erred in finding the claimant did not misrepresent his prior conditions and injuries to the IMEs because they already possessed the information.  The JCC was not allowed to “excuse or nullify” false prior medical history because the doctors actually possessed accurate medical information, regardless of the source. In doing so, the JCC erred in placing an affirmative duty, not statutorily mandated, on the evaluating physicians to interrogate the Claimant regarding known misrepresentations. Nothing in either 440.105(4) or 440.09(4) provides a basis for the JCC to exonerate such misrepresentations. The opinion also rejected the JCC’s reasoning that because the claimant did not seek payment of the Shands/bat treatment, and because he did not allege he was hit with a bat at work, such statements could not constitute a misrepresentation under the statute. To the contrary, the subsections of F.S.§440.105(4)(b) broadly state that any acts made in support of obtaining benefits may suffice to invoke the statute. Finally, the opinion notes the claimant maintained his falsehoods for months, and dismissed all but the low back claims at the 11th hour. Contrary to the JCC’s findings, such “manipulation of pleadings” cannot shelter the claimant.  As the DCA noted “It should not be incumbent upon litigants to undertake exhaustive investigation to flush out the mendacities of an adversary. The parties have a right to expect that all statements, whether written or oral, are truthful and adequately responsive.”  Click here to view Opinion

JCC Merit Orders


JCC Almeyda (Miami) - Dismissed all claims with prejudice in Abbreviated Final Order. Bifurcated hearing held to determine whether the JCC had jurisdiction. The JCC determined that the employer had at most three employees and there was no Notice of Election of Coverage filed to become eligible for WC benefits as non-construction entity and, therefore, the accident was not covered by Chapter 440.    Click here to view Order

JCC Lewis (Fort Lauderdale) – Denied all benefits based on finding of misrepresentation. Claimant sustained neck, low back, and left shoulder injuries after falling off a ladder. Claimant denied any prior injury or treatment to those body parts to treating providers. However, in deposition, she admitted to a prior low back, left leg and left shoulder injuries.  At trial, she insisted that she disclosed her prior injuries and treatment to her treating doctors, despite the lack of notations in the medical records from several authorized doctors. Her trial testimony was also inconsistent with her prior deposition testimony as to dates of injury and extent of prior treatment. The JCC did not find the claimant credible, mentioning her status as a twice convicted felon. The JCC determined that she intentionally misrepresented her prior injuries for the purpose of securing WC benefits. Click here to view Order

JCC Owens (Port St. Lucie)Awarded compensability, TPD and authorization of a PCP.  Denied TTD, authorization of Dr. Toia and his medical bills (self-help), reimbursement of prescriptions, and authorization of an orthopedic.  Claimant was the president of the insured and he withdrew his position and transferred ownership interest prior to the accident, however, he continued to receive draw money and continued to work several days per week leading up to and just after the accident.  The JCC determined that there was an Employee/Employer relationship on the date of accident. The E/C alleged that the claimant feigned an injury at work after requesting a continuation of his draw for two to three months to undergo back surgery for a pre-existing condition, however, there was no evidence that the claimant had treated for the low back any earlier than 5 years prior to the accident. The JCC found the claimant more credible that he did not make that request and also found that an early history given to a doctor of an accident at work corroborated the claimant having a work accident.  The JCC accepted Dr. Simon’s opinion that the work accident was the MCC of the need for treatment. No medical evidence of TTD. Portion of TPD awarded for periods of light duty corroborated by medical evidence.  Authorization for past care based on self-help were denied. There was no referral to an orthopedic from an authorized physician, IME or EMA.     Click here to view Order

JCC Dietz (Sebastian) - Denied compensability and all claims for medical and indemnity benefits. The E/C defended on no accident in CSE, notice, claimant’s injuries were pre-existing and idiopathic, and MCC.  The Claimant alleged a foot/ankle injury after slipping on a ladder. He began treating with his PCP and told his employer about the injury but not that it happened at work. Several supervisors from the employer acknowledged being aware of an injury and seeing the claimant in a walking boot but they assumed it was due to a well-known pre-existing leg condition.  Employer was not aware that the claimant alleged it occurred at work until three months after the fact via a letter from the claimant’s attorney. The JCC rejected the notice defense, holding that the employer’s knowledge of wearing a walking boot met the statutory requirement of notice of an injury. Claimant’s history of the onset of the injury to his personal PCP was inconsistent and did not mention a ladder injury, but rather that the onset had been gradual over the prior month and the claimant woke up with swollen and discolored toes with no injury and the condition was regarded as chronic in nature. The JCC accepted the E/C’s IME Dr. Wernicki on MCC over the claimant’s IME, Dr. Kugler, who did not review the prior medical records and formed his opinions based solely on the history provided by the claimant. The JCC did not find that the claimant sustained an accident on the job and denied compensability and all medical and indemnity claims.    Click here to view Order

Permanent Total Disability

JCC Pitts (Orlando) - Awarded PTD and partial period of TPD.  The JCC determined that the E/C terminated the claimant’s employment and did not offer light duty employment or  vocational assistance.  Claimant’s treating physician, Dr. Gerber, assigned permanent sedentary restrictions and a 10% impairment rating. Dr. Rosen assigned no permanent restrictions and Dr. Weber deferred to the other treating physicians. The EMA (Scott) ordered an FCE which showed sedentary/light capacity. The JCC accepted Gerri Pennachio’s testimony and found that the claimant had a 9th grade education and did not pass the GED exam; he worked unskilled, medium duty jobs prior to the accident and had no transferrable skills and was not capable of performing at least sedentary work within a 50 mile radius of his home, and performing a job search would be futile.  Click here to view Order

Indemnity Benefits

JCC Clark (Fort Myers) Awarded TPD.  The E/C argued claimant was terminated for cause and was therefore not entitled to TPD. The E/C argued the claimant engaged in “intentional and substantial disregard of the employer’s interests”, as the claimant’s irregular attendance practices caused the facility to take on less new admissions, thereby reducing revenue. The JCC did not find the claimant’s behavior rose to misconduct. The E/C also argued that the claimant’s pre-existing heart condition caused her wage loss, but offered no medical evidence to support that the pre-existing heart conditions caused her any greater disability during the period in question.  Click here to view Order

JCC Sculco (Orlando) - Awarded partial period of TPD  with 20% reduction to recoup advance. Left shoulder surgery was scheduled and reset twice, once so that the claimant could help his mother and a second time due to the E/C’s failure to arrange transportation. Prior to the third surgery date, the E/C stopped paying TPD for non-compliance based on the claimant’s prior cancellations of the surgery. The claimant again cancelled the surgery claiming that he no longer felt the E/C was looking out for his best interests. The claimant then asked to be placed at MMI so that he could settle, but that did not occur. Dr. Winters opined that he was at MMI if he did not go forward with the surgery. The JCC held that the post-MMI treatment which included injections, medication and therapy was palliative in nature based on Dr. Winters’ testimony and only became remedial again when the claimant resumed treatment and decided to reset the surgery.  The JCC denied about 8 months of TPD between the MMI date and the date he began receiving remedial care again and making efforts to reschedule the surgery. A little over two months of TPD was awarded thereafter. The JCC rejected the E/C’s medical non-compliance defense, finding that the E/C failed to establish that the claimant unreasonably delayed the surgery. Regarding the $2,000 advance, the JCC held that the E/C could recoup 20% from the back TPD award and 20% from future indemnity payments as opposed to recouping the entire $2,000 from the back TPD award.    Click here to view Order

JCC Beck (Sarasota) - Awarded TPD, denied  E/C’s Motion to Appoint EMA and  denied request for proper determination of the impairment rating. The claimant had a compensable back injury with continued complaints, athough scant objective findings. The claimant had previously resisted injections due to a fear of needles, however, ultimately testified at the hearing that he would undergo the injections. Dr. Tucci placed the claimant at MMI with 50lb permanent restrictions but a 0% impairment rating. Claimant’s IME Dr. Figueroa assigned a 5% impairment rating. The JCC agreed that there was conflict as to the impairment rating but denied the E/C’s Motion to Appoint an EMA as untimely filed only 5 days before the hearing. The JCC held that the claimant was not overall MMI, as he was willing to undergo injections, the goal of which was lasting improvement. Because the claimant was not MMI, it was premature to address the proper determination of an impairment rating. Claimant was let go by the employer because they did not have work available within his restrictions and, therefore, was entitled to TPD.    Click here to view Order

Medical Benefits

JCC Hogan (Fort Lauderdale) – Awarded/reinstated pain management.  Claimant was prescribed Nucynta for compensable low back injury for three years.  The E/C conducted a peer review which found overutilization and denied all medical benefits. The court held that the E/C was statutorily authorized to initiate a utilization review but they were obligated to continue providing the prescribed care during the pendency of the overutilization review process by the Department under 440.13(8).    Click here to view Order

JCC Hill (Gainesville)Abbreviated Order -  Awarded payment of medical bills for claimant’s attempted suicide (1992 d/a). Compensable accident with compensable depression. The uncontested medical evidence established that the claimant’s suicide attempt resulted from her chronic depression, which was caused by the work accident. Based on the date of accident (1992), MCC did not apply and the claimant was only required to show that her condition was caused, at least in part, by the work accident.    Click here to view Order

JCC Sculco (Orlando) - Awarded medical benefits. The E/C argued that the MCC of the claimant’s need for physical therapy and an orthopedist was a subsequent intervening weightlifting accident. The JCC accepted Dr. Abbott’s opinions regarding the nature and frequency of the claimant’s weightlifting and the cause of the need for treatment over Dr. Simmons’ opinions which lacked detail about the claimant’s weightlifting, making Dr. Simmon’s causation opinion less reliable. JCC held that the E/C failed to establish a break in the causal chain.   Click here to view Order

JCC Walker (Panama City) - Awarded injections, denied ER bills and medication. Compensable lower extremity injury. The JCC accepted Dr. Chandler’s testimony that block injections would be diagnostic in nature to rule out Complex Regional Pain Syndrome and were reasonable to address causation. The JCC denied the requested neuropathy medication, as there was no medical evidence that the work accident was the MCC of the neuropathy. There was no evidence of an actual emergency to justify an ER visit despite claimant’s testimony that he had no other avenue for treatment since his appointment with his authorized doctor had been cancelled. The claimant did not make any attempt to contact the adjuster prior to going to the ER.   Click here to view Order

JCC Pitts (Orlando) - Awarded one time change with Dr. Mason. The claimant initially requested a one time change to Dr. Cole in December of 2016. The E/C (untimely on the 7th day) authorized a one time change to Dr. Talbert but failed to include the appointment date and time. The claimant subsequently filed another petition requesting a one-time change to Dr. Mason. The E/C responded that Dr. Talbert was the one-time change. The JCC held that the claimant had not attended any appointments with Dr. Talbert and, therefore, did not waive his right to a physician of his choosing and was entitled to Dr. Mason as his one-time change.    Click here to view Order

Attorney Fees

JCC Almeyda (Miami) - Awarded E/C $4,153.85 in costs. E/C claimed $4,767.14 in costs for a dismissed petition. The claimant did not object to entitlement to costs but contested specific costs for the E/C’s IME doctor’s review of medical records in the amount of $1,200; the cost of the IME of $1,250, two conferences with the IME doctor at $200 each; $413.29 for medical records; and nominal teleconference charges. The only costs reduced  by the JCC were the second conference with the IME doctor as it was deemed excessive, and the $413.29 for medical records which were not supported by evidence of the number of pages copied.    Click here to view Order

JCC Rosen (St. Petersburg) - Awarded E/C paid fees. The E/C objected to the attorney fee hearing taking place less than 30 days after the filing of the Verified Petition for Fees. The E/C’s Verified Response did not respond to the claimed hours but rather focused on the objection to the proceeding taking place within 30 days. The JCC held that the E/C was on notice over three months earlier that there would be a hearing on entitlement to fees and costs and there was no due process violation. The JCC held that there was no question the claimant’s attorney secured benefits which were confirmed by stipulations of the parties resolving issues and petitions including stipulations to compensability of a shoulder which had been previously denied and MCC asserted, past attendant care, and past penalties and interest. Amount of fees and costs to be determined in a later proceeding.    Click here to view Order

JCC Weiss (Fort Myers) - Awarded attorney fees of $24,120.00 and costs of $208.40 in costs.  Statutory fee would have been $2,122.04. Claimant claimed 100.1 hours at $300 to $350 per hour.  JCC awarded $300.00 per hour  based on 80.4 hours. The JCC specifically noted that the claimant attorney provided prior Orders supporting her asserted hourly rate, while the defense provided no Orders to support the lower hourly rate asserted.      Click here to view Order

JCC Johnson (Palm Beach) – Denied claim for E/C paid attorney fees and costs.  The claimant, a law enforcement officer, suffered a compensable cardiac condition and received authorized treatment with a cardiologist, as well as an alternate cardiologist.  The claimant was also paid his full salary in lieu of temporary indemnity benefits.  On 3/2/16, the claimant filed a PFB for PTD benefits from 1/15/16 forward based on a DWC-25 form completed by the alternate cardiologist indicating a permanent no work status.  However, both the PFB and the DWC-25 form reflected that the claimant was not at MMI.  The E/C filed a Response on 3/22/16 denying PTD as premature because the claimant was not at MMI.  The E/C subsequently received an amended DWC-25 on 5/9/16 indicating that MMI was reached on 3/18/16 with 90% PIR.  Three days later, on 5/12/16, the E/C administratively accepted PTD effective 3/18/16 and paid retroactive PTD benefits effective 3/19/16, excluding penalties and interest.  The claimant subsequently filed a Notice of Resolution of Issues (“NRI”) regarding the 3/2/16 PFB but reserved on fees and costs.  The claimant later filed a Verified Fee Petition alleging he secured PTD benefits.  E/C argued there was no entitlement to fees because the claim for PTD was premature when the PFB was filed and that E/C timely accepted the claimant as PTD upon obtaining MMI.  The JCC noted that fee entitlement hinged on the Court’s determination of the MMI date and the JCC’s review of the cardiologists’ records reflected varying MMI dates and work restrictions from visit to visit.  The JCC pointed out that the doctor’s testimony regarding MMI was contradictory and confusing deeming it unreliable.  Ultimately, the JCC based his determination on a form the doctor completed for the claimant’s retirement benefits indicating MMI was reached 3/18/16 as the form was completed without solicitation by either attorney or the nurse case manager.  In so doing, the JCC concluded that the claim for PTD benefits was premature when the PFB was filed and that there was no entitlement to E/C paid fees or costs.  The JCC pointed out that the E/C was not required to move for a dismissal of the PFB to defeat the claims for fees and costs and that the claimant’s NRI was tantamount to a voluntary dismissal, which reflected the claimant’s choice to not litigate an earlier MMI date.  The JCC also pointed out that even if the earlier MMI date were established, it would not have resulted in any additional benefits to the claimant because he was being paid his full salary, which amounted to a sum greater than the PTD benefits claimed.    Click here to view Order

Motion Hearings

JCC Lazzara (Lakeland) - Denied E/C’s Motion to Enforce Settlement.  The parties attended a private mediation at the defense attorney’s office.  Claimant attended in person and his attorney appeared by phone.  Claimant claimed that his attorney was not always available by phone during the mediation and the settlement agreement was not fully explained to him; he was not made aware the child support arrearages would be deducted, nor did his attorney have his permission to settle the case, although the claimant signed the mediation settlement agreement.  The claimant (pro se at the time of the Motion to Enforce) also argued that his former lawyer did not deserve the fee allocated in the settlement.  The JCC concluded that there was no meeting of the minds as to the essential terms of the agreement as to net recovery and denied the Motion to Enforce.    Click here to view Order


Please note that the DCA Opinions and Merit Orders contained in this newsletter are non-final until 30 days after their rendition. Until that time, they are subject to amendment, vacation, or other action which may remove or alter some or all of the decision. Please contact any HRMCWW attorney if you have a question as to the finality and applicability of an opinion or Order. We endeavor to include any amendments or alterations to Opinions or Orders that may occur at a later date.


Treasure Coast North Florida
 Southwest Florida   Atlanta
772-489-2400  850-222-1200
305-423-7182   954-580-1500   239-939-2002  404-459-2722

Click on the following links for printable versions of our weekly updates:

07-07-17- Hurley Rogner case law update
07-14-17- Hurley Rogner case law update
07-21-17- Hurley Rogner case law update

08-02-17- Hurley Rogner case law update




Tampa Office

43 Davis Blvd
Tampa, FL 33606
Phone:  (813) 259-5389


The following is our latest edition of our Florida Workers’ Compensation Digest:

 In McNeela v. Brinks/Liberty, 15-6561, d/a 11/1/14, Judge Hill denied hearing aids based on MCC.  E/C accepted the accident and resulting tinnitus as compensable, but denied hearing loss.  Dr. Hall recommended hearing aids, but opined that they were related to a preexisting condition.  “Where an accident is accepted as compensable, the claimant still bears the burden over the course of the proceedings to prove continued entitlement to workers’ compensation benefits.  See e.g., Fitzgerald v. Osceola County Sch. Bd., [1st DCA] ... Consequently, here, although the E/C accepted compensability of the work accident, Claimant is still required to prove the work accident is the [MCC] of his current hearing loss and need for hearing aids. / Even if an injury is accepted as compensable, a carrier may absolve itself from responsibility for medical treatment by demonstrating ‘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....’ Jackson v. Merit Elec., [1st DCA] ... / Here, Claimant cannot prevail under either standard.  Based on Dr. Hall’s testimony, which is the only medical evidence presented, the work accident is not the [MCC] of Claimant’s hearing loss and need for hearing aids. The [MCC] is his preexisting long term noise exposure and age. Dr. Hall’s opinion is based on the results of his objective testing. Thus, using the first standard, Claimant cannot establish the work accident is the [MCC] of his current hearing loss and need for hearing aids. / As for the second standard, there is no evidence that the E/C accepted Claimant’s hearing loss as compensable. However, even if it had, the E/C has shown a break in the causation chain by establishing Claimant’s current hearing loss and need for hearing aids was due to a condition unrelated to the work accident.”  Comment: Be precise in responses to petitions, as well as on the pretrial, as to what is “compensable.”

    In Korolenko v. ADP Total Source/Helmsman Mngt Servs., 14-26906, d/a 7/25/11, Judge Hogan denied E/C’s Daubert objection to claimant’s IME.  “Sufficient facts or data: Dr. Suarez performed a physical examination of the Claimant. He had medical records that included prior MRIs from 2007 of the lumbar and cervical spine. He also reviewed the MRI report dated November 9, 2013 of the cervical spine. Dr. Suarez reviewed medical records of Dr. Szeinfeld, a physician that provides treatment to the Claimant through his personal health insurance provider. / ... The testimony is the product of reliable principles and methods: When asked if there was any particular principle or method used to relate the Claimant’s complaints to the industrial accident, Dr. Suarez testified, that ‘… all I can do is ask him what happened and get the history’. He also testified that he relies on his years of experience as a physiatrist in determining if something is ‘causedly’ related [to an industrial accident]. In addition to obtaining a history from the Claimant, Dr. Suarez reviewed the medical reports of the treating physician, reviewed diagnostic reports of MRIs taken prior to the alleged date of accident, and conducted a physical examination of the Claimant. / ... I find that obtaining a history of a patient, reviewing medical reports of the treating physician, reviewing diagnostic reports and conducting a physical examination, absent conflicting medical literature and expert testimony, are reliable principles and methods a physician can rely on to render an opinion regarding causation. / .... The witness has applied the principles and methods reliably to the facts of the case: Counsel for E/C asked Dr. Suarez, ‘… is there any particular … methodology that you can point a physician to in this case that would make them come to the exact same determination you did as to continued cause and relatedness?’ Dr. Suarez stated, ‘No. We’re talking about a human being…’” JCC held: “I do not believe sec. 90.702 Fla. Stat. requires a physician to apply a method of evaluating a patient in such a manner that another physician will come to the exact same determination regarding causation.” Comment: Under 440.09, the “causal relationship [MCC] between a compensable accident” and not readily observable injuries “must be by medical evidence only.”  Medical evidence is demonstrated by physical exam or diagnostic testing, under 440.09. Injuries that are not readily observable would include 1) back and leg pain (Crest v. Louise, 1st DCA), and knee pain (Estevez v. Vquest/CNA, Judge Lorenzen).     Lay testimony cannot be used to show the connection within a reasonable degree of medical certainty as to conditions that are not readily observable pursuant to Arand v. Dyer, 1st DCA. When a doctor merely adopts the connection between a work accident and the injuries based upon lay testimony (for example, from the claimant), would this also be lay testimony? Therefore, even if Daubert is satisfied, is 440.09?

    In Raboteau v. Publix, 14-10492, d/a 7/16/12, Judge Holley denied E/C’s motion for summary final order on a late reporting defense.  At claimant’s deposition, he testified that he only reported he was not feeling well, and not a work accident.  At the motion hearing, claimant testified that he told his supervisor he was hurt at work.  Summary final order was improper where there was a conflict in the evidence.  Comment: The order did not address Ellison v Anderson, Fla. Sup. Ct., which held that“a party when met by a Motion for Summary Judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to excuse or explain the discrepancy.”

    In Velazquez v. Direct Airline Servs./Normandy, 14-27618, d/a 11/1/14, Judge Weiss denied a late reporting defense, and found that 12/1/14 was timely notice of the accident.  E/C received notice of the accident on 12/1/14.  Section 440.185(1) provides 30 days for timely notice; 60Q-6.109 provides that “the day of the act or event from which the designated period of time begins to run shall not be included.”  Under Hinzman v Winter Haven, 1st DCA, the five days rule for one-time change requests ignored 60Q-6.109.  E/C argued that Hinzman should apply to the 30 day rule, that 11/1/14 should be counted, and that 12/1/14 is 31 days away and untimely.  JCC refused to extend Hinzman to the 30 days notice requirement. Therefore, 12/1/14 was exactly 30 days from 11/1/14, and timely.


We hope this information has been helpful.  Let us know if you have any questions, or would like to discuss further by contacting, or calling (813) 259-5389.