Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

October 29, 2020 by Jennifer Kennedy

Workers’ compensation — Jurisdiction — Appeals — Judge of compensation claims correctly found that he lacked jurisdiction over petition for benefits because the claimed benefits were the same attendant care benefits that JCC awarded in a prior final order currently on appeal and cross-appeal

45 Fla. L. Weekly D2396a

SALATIEL VELAZQUEZ HERNANDEZ, Petitioner, v. J. STERLING QUALITY ROOFING, INC., d/b/a STERLING ROOFING/SUMMIT, Respondent. 1st District. Case No. 1D20-1208. October 21, 2020. Petition for Writ of Certiorari — Original Jurisdiction. Date of Accident: July 20, 2017. Counsel: James Richard Parris of Parris & Papa, P.A., Jacksonville, and Wendy S. Loquasto of Fox & Loquasto, LLC, Tallahassee, for Petitioner. H. George Kagan of H. George Kagan, P.A., Gulf Stream, for Respondent.

(PER CURIAM.) Claimant in this workers’ compensation case petitions the Court for a writ of certiorari, or alternately, for a writ of quo warranto or mandamus, as relief from an order dismissing two petitions for benefits (PFBs) without prejudice. We find that Claimant has not shown irreparable harm resulting from this dismissal and therefore dismiss the petition on jurisdictional grounds. We also find that the extraordinary remedies of quo warranto and mandamus do not lie.

Claimant, however, has also asked this Court to consider whether this dispute, at least in part, should be treated as an appeal. In the dismissal order, the Judge of Compensation Claims (JCC) ruled that he lacked jurisdiction over the PFB filed on January 8, 2020, based on his finding that the claimed benefits there are the same attendant care benefits he awarded in a prior final order currently on appeal and cross-appeal in J. Sterling Quality Roofing, Inc., d/b/a Sterling Roofing/Summit Holdings v. Salatiel Velazquez Hernandez; case number 1D19-4391. We agree that the portion of the order dismissing the January 8, 2020, PFB is an appealable nonfinal order adjudicating jurisdiction under Florida Rule of Appellate Procedure 9.180(b)(1)(A). However, because we conclude that the JCC correctly found that the pending appeal/cross-appeal divested his jurisdiction over this PFB, we affirm.

In the prior final order, the JCC awarded some attendant care benefits and denied others without prejudice. In denying those claims, the JCC also ruled that a new prescription may create a new claim. Claimant disputes the JCC’s finding that the attendant care at issue here is the same as the care previously awarded, but at the same time asserts the right to file a new claim with a new prescription in accordance with the JCC’s prior ruling. Even assuming Claimant has now presented a new claim, he chose to cross-appeal the JCC’s prior attendant care adjudication that allowed the filing of a new claim, but then filed a new claim nonetheless. Thus, the JCC did not err when he ruled that he did not have jurisdiction over the benefits claimed in the January 8, 2020, PFB. See Fla. R. App. P. 9.180(c)(1) (stating that “[t]he lower tribunal retains jurisdiction to decide the issues that have not been adjudicated and are not the subject of pending appellate review”).

Accordingly, the petition is DISMISSED and the JCC’s dismissal of the January 8, 2020, PFB, appealed as a nonfinal order adjudicating jurisdiction, is AFFIRMED. (RAY, C.J., and BILBREY and JAY, JJ., concur.)* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Winn-Dixie, website, customers, prescription, place of public accommodation, coupons, refills, privileges, disabled, advantages, accommodations, visually-impaired, auxiliary, public accommodation, inaccessible, barrier, offerings, sighted, majority opinion, intangible, enjoyment, locator, rewards, card, district court, facilities, shopping, software, communicate, in-store – The difficulties caused by the customer’s inability to access much of the store’s website constituted a concrete and particularized injury that was not conjectural or hypothetical, and would continue if the website remained inaccessible; [2]-The statutory language in Title III of the ADA defining “public accommodation” was unambiguous and clear, and public accommodations were limited to actual, physical places, and websites were not a place of public accommodation under the statute; [3]-The store’s website did not constitute an intangible barrier to the customer’s ability to access and enjoy fully the physical grocery store; [4]-Absent congressional action that broadened the definition of “places of public accommodation” to include websites, the appellate court could not extend ADA liability to the facts presented.
  • Civil rights — Employment discrimination — Pharmacist employed by Department of Veterans Affairs brought action against Secretary, alleging that her managers at VA medical center discriminated against her based on her gender and age, retaliated against her because she engaged in protected activity, and subjected her to hostile work environment in violation of Title VII and Age Discrimination in Employment Act — Retaliation — Title VII’s federal-sector retaliation provision requires personnel actions to be made free from any discrimination — Supreme Court’s decision in pharmacist’s case, which held that federal-sector provision of ADEA did not require plaintiff to prove that age was a but-for cause of a challenged personnel action, undermined to the point of abrogation Eleventh Circuit’s prior panel precedent holding that Title VII’s federal-sector retaliation provision requires but-for causation — Standard that Supreme Court articulated for claims under ADEA’s federal-sector provision controls cases arising under Title VII’s nearly identical federal-sector provision — Retaliatory hostile work environment — An actionable federal-sector Title VII retaliatory-hostile-work-environment claim must describe conduct that rises to the level of personnel actions and must be evaluated under “might have dissuaded a reasonable worker” standard rather than the more stringent “severe or pervasive” standard
  • Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Civil procedure — Summary judgment — Opposing affidavit — Trial court abused its discretion in granting motion to strike affidavit of independent medical examiner based on plaintiff’s claim that affidavit “baldly repudiated” affiant’s deposition testimony regarding relationship between injuries and accident and medical necessity of chiropractic treatment — Because affiant’s testimony raised genuine issue of material fact, as it clearly conflicted with testimony of treating chiropractor, order granting summary judgment in favor of assignee/medical provider reversed
  • Wrongful death — Automobile accident — Jurors — Peremptory challenge — Race neutral explanation — Genuineness — New trial — Evidence — Trial court did not abuse its discretion in granting a new trial based on its improper denial of plaintiff’s peremptory challenge of juror — Trial court failed to apply proper legal standard in denying plaintiff’s peremptory strike of juror where it failed to recognize the presumption that plaintiff was exercising her peremptory challenge in a nondiscriminatory manner and hold defendants to their burden of proving purposeful discrimination — Fact that juror was sole African American juror left on the panel is, standing alone, insufficient to override a genuine race-neutral challenge — Trial court erred in granting a new trial based on its determination that verdict finding one of the defendants 100% liable for the fatal accident was against the manifest weight of the evidence — Order shows that trial court improperly re-weighed the evidence and acted as a seventh juror in doing so — Trial court erred in permitting jury to hear evidence related to defendant’s driving history where not only was the evidence unduly prejudicial, but the citations bore no similarity to the circumstances at issue and had no relevance to defendant’s alleged negligence at the time of the accident — Trial court erred in granting defendant’s motion notwithstanding verdict which asserted that defendant should not be liable for the total amount of damages to co-defendant’s tractor-trailer — A new-trial order and order for judgment notwithstanding verdict are mutually inconsistent and may not be granted simultaneously unless granted on the express condition that the order granting the judgment notwithstanding verdict only becomes effective if the order granting new trial is reversed on appeal, which did not happen in this case
  • Workers’ compensation — Prosthetic devices — Limitation of actions — Claimant who had screws and rods inserted in her spine as a result of an injury occurring in 1990 — Judge of compensation claims erred in rejecting employer/carrier’s statute of limitations defense to claim for pain management and a replacement mechanical bed — While applicable 1989 version of workers’ compensation law contained an exemption from its statute of limitations to the right for remedial attention relating to the insertion or attachment of a prosthetic device, there is no evidence that either the prosthesis, or the surgery required to insert it, is causing the need for the requested benefits as opposed to the underlying condition that necessitated the prosthesis in the first place — Fact that claimant may have a prosthetic device is not, standing alone, sufficient to prevent statute of limitations from accruing

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982