45 Fla. L. Weekly D1749a Torts — Exculpatory clause in employment agreement between plaintiff and his employer which provides security services for clients, waiving right of plaintiff to recover damages from any client which are covered by workers’ compensation law — Disclaimer is unambiguous, does not violate Florida public policy, and is enforceable — Trial Read More »
Archives for July 2020
Workers’ compensation — Temporary disability benefits — Personal leave benefits — Employer offset — Judge of compensation claims erred in denying claim for temporary disability compensation benefits based on the fact that claimant received full pay for the period at issue which was docked against claimant’s bank of personal sick or leave time — Section 440.09(1) requires that an employer must pay compensation or furnish benefits required if an employee suffers an accidental compensable injury and no evidence was introduced that employer “bought back” claimant’s sick leave or that the alternate benefits were employer provided — Court rejects argument that wages paid to claimant were in lieu of benefits — Payment of wages in lieu of compensation must be an act clearly understood between the employer and the employee, and the “in lieu of” act is not satisfied when an employer pays wages through a right that the claimant has to receive it which is not related to, or dependent in any way upon, the existence or non-existence of a workers’ compensation claim — Employer is not entitled to an offset where employer did not raise the offset defense, in the event compensation benefits were awarded, and no evidence was introduced that alternate benefits were of a qualifying nature — JCC lacked subject matter jurisdiction to order employer to reinstate claimant’s personal leave benefits
45 Fla. L. Weekly D1702a Workers’ compensation — Temporary disability benefits — Personal leave benefits — Employer offset — Judge of compensation claims erred in denying claim for temporary disability compensation benefits based on the fact that claimant received full pay for the period at issue which was docked against claimant’s bank of personal sick Read More »
Workers’ compensation — Temporary partial disability benefits — Fraud or misrepresentation — Post-injury earnings — Medical condition — Claimant who received post-injury paychecks from delivery service, but who claimed the paychecks were for work performed by claimant’s husband and were only issued to claimant due to her husband’s lack of a bank account — Judge of compensation claims did not err in rejecting employer/carrier’s misrepresentation defenses — Competent substantial evidence supports JCC’s finding that claimant did not misrepresent her post-injury earnings because she did not actually earn wages from the delivery service — Simply reporting payments to the IRS does not necessarily mean claimant earned them herself — Even assuming claimant should have reported payments as her own earnings, it is difficult to conclude that she misrepresented the payments because she told e/c about her situation months before filing the DWC-19 form at issue — JCC did not err in finding no fraud on claimant’s DWC-19 forms based on conclusion that claimant lacked the requisite intent because she did not knowingly misrepresent her earnings with the intent to obtain benefits — While JCC would have been justified in finding that claimant lacked credibility in light of claimant’s dealings outside the workers’ compensation claim, it is within the JCC’s discretion to resolve a conflict in evidence and make credibility determinations — Fact that claimant was open about her arrangement with delivery service ultimately constitutes competent substantial evidence in support of JCC’s finding that claimant lacked requisite intent for fraud when submitting forms — JCC did not err by failing to find that claimant misrepresented her medical condition to her doctors — Although e/c alleges there was inconsistency between claimant’s presentation to her doctors and her documented activities in surveillance video, the misrepresentation statute requires e/c to prove claimant made false, fraudulent, incomplete, or misleading oral or written statements for the purpose of securing compensation — Doctors’ testimony that claimant’s activities shown in surveillance video were not inconsistent with her diagnosis also provided competent substantial evidence in support of JCC’s finding — JCC did not err in determining that claimant did not misrepresent her medical condition in her deposition testimony — To extent there may be inconsistencies between surveillance video and claimant’s reported physical capabilities during those time periods, the JCC’s ultimate conclusion that there was no intentional misrepresentation is supported by JCC’s finding that claimant is generally a poor historian
45 Fla. L. Weekly D1727a Workers’ compensation — Temporary partial disability benefits — Fraud or misrepresentation — Post-injury earnings — Medical condition — Claimant who received post-injury paychecks from delivery service, but who claimed the paychecks were for work performed by claimant’s husband and were only issued to claimant due to her husband’s lack of Read More »
Torts — Automobile accident — Slow speed rear-end collision — Referral relationship between plaintiff’s former counsel and her chiropractor — Plaintiff opened door for defendant to challenge plaintiff’s statement that she was referred to chiropractor by hospital — Trial court did not abuse discretion in allowing inference and argument regarding inconsistent statements as to referral to chiropractor for purpose of challenging plaintiff’s credibility
45 Fla. L. Weekly D1675a Torts — Automobile accident — Slow speed rear-end collision — Referral relationship between plaintiff’s former counsel and her chiropractor — Plaintiff opened door for defendant to challenge plaintiff’s statement that she was referred to chiropractor by hospital — Trial court did not abuse discretion in allowing inference and argument regarding Read More »
Insurance — Bad faith — Discovery — Privileged information — Appeals — Insurer seeking certiorari review of trial court order requiring insurer to produce documents, which insurer claims are privileged and/or work product documents, after in camera inspections by a special master and the trial court — Petition is denied where insurer failed to preserve the documents at issue for appellate review — In the absence of a record reflecting the material reviewed by the trial court, appellate court cannot review trial court’s findings — Insurer may not cure incomplete appendix under rule 9.220(a) where nothing indicates that insurer followed proper procedure for filing documents at issue under seal with the trial court — Because documents are not in trial court’s record, they cannot be transmitted to appellate court for review under the rule
45 Fla. L. Weekly D1714a Insurance — Bad faith — Discovery — Privileged information — Appeals — Insurer seeking certiorari review of trial court order requiring insurer to produce documents, which insurer claims are privileged and/or work product documents, after in camera inspections by a special master and the trial court — Petition is denied Read More »