Case Law Update – 3/1/21 – 5/28/21

Case Law Update –  3/1/21 – 5/28/21

Scott v. James A. Jones Const. Co., Central Florida Siding Pros, LLC, NorGuard Ins. Co., Southeast Personnel Leasing, Inc., Lion Ins. Co., Packard Claims, Nobles American Svcs, LLC.

46 Fla. L. Weekly D581a

3/16/21

This case involved an appeal by the claimant, and cross-appeal by James A. Jones Construction Company (Jones), the general contractor.  The JCC ruled that the claimant was employed by Central Florida Siding Pros, LLC (CFSP), a sub-contractor of Jones, and the JCC found that neither Jones, nor CFSP carried workers’ compensation insurance for the date of accident.  Claimant and Jones appealed the finding that CFSP was not covered by a workers’ compensation policy with NorGuard since the policy was not properly cancelled based on promissory estoppel.  NorGuard issued a notice of cancellation on 1/24/18 with a cancellation date of 2/10/18. Then, on 2/6/18, Paychex issued a certificate of liability insurance for CFSP to Jones, indicating the policy would expire on 4/29/18.  Based on the 1/24/18 Notice of Cancellation, the JCC held the NorGuard policy was not in effect when the Claimant’s accident occurred on 4/24/18.  Claimant and Jones argued that due to the reliance of the Certificate of Liability Insurance from Paychex, NorGuard was estopped from cancelling the insurance policy.  The DCA agreed with the JCC that there was no evidence that Jones reasonably relied on the certificate of liability insurance.  The decision of the JCC was affirmed.

Ali v. American Airlines/Sedgwick CMS

46 Fla. L. Weekly D612a

3/17/21

The DCA reversed the JCC’s denial of costs to the claimant for three Petitions for Benefits filed because the law mandates the award of costs to prevailing parties.  As the benefits requested in the Petitions were provided after the filing of the Petitions, the claimant is the prevailing party.  The denial of attorney’s fees was affirmed by the DCA without comment.

Intal Const., Inc./Zurich North America v. Mancera

46 Fla. L. Weekly D740a

3/31/21

The JCC awarded TPD benefits based on retroactive restrictions from the Claimant’s IME physician.  The JCC’s Order clearly stated that she relied on the IME opinion in awarding the benefits.  The DCA found that the work restrictions provided by the IME physician were for compensable and non-compensable body parts, and they were ambiguous as to which restrictions were associated with which body parts.  Given this, the IME opinion was not competent, substantial evidence to support the finding.  The DCA also addressed medical records from an authorized walk-in clinic, noting that the JCC brought up the potential for irregularities with the DWC25 and the provider’s medical forms, and the JCC’s Order called into question whether these records were relied upon in the award of TPD benefits.  As it is not clear, the DCA reversed the award of TPD benefits, and remanded for further proceedings and clarification. 

DECA Manufacturing Corp./Southern Owners Ins. Co./Auto-Owners Ins. Co. v. Beckett

46 Fla. L. Weekly D793a

4/8/21

The DCA reversed the JCC’s denial of the E/C’s statute of limitations defense.  The Claimant was injured in early 1990, and her claim is subject to the 1989 workers’ compensation statute, which states that the statute of limitations will not apply “to the right for remedial attention relating to the insertion or attachment of a prosthetic device to any part of the body.”  The medical evidence indicted the Claimant does have screws and rods in her cervical spine, which the JCC found to be a prosthetic device.  Given this, the E/C’s statute of limitations defense was denied by the JCC.  The DCA reversed noting that the benefits at issue- authorization of pain management and a new mechanical bed- did not appear to relate to the prosthesis.  There was no evidence presented to show that the medical benefits requested were related to the prosthesis device.   As the requested benefits were not related to the prosthetic device, the statute of limitations exemption did not apply in this claim. 

Zurich American Ins. Co. v. Samson/DSK Group Inc. II

46 Fla. L. Weekly D1241a

5/28/21

In August 2019, a JCC ordered the Carrier to authorize and provide orthopedic treatment.  The Claimant filed a rule nisi proceeding in circuit court to enforce the Order, claiming the Carrier failed to comply.  In circuit court, the Claimant was awarded $15,000.00, which was appealed by Zurich.  On appeal, Zurich argued that the file was awarded in error because the circuit court is limited to determine if Zurich violated a workers’ compensation order, and if they did, enforcing that order.  The DCA found the circuit court had jurisdiction under 440.24(1) to award the monetary award, but there is no justification for the amount awarded.  The DCA compared the award to a civil sanction, and stated that there was no evidence of an actual loss suffered by the Claimant.  Given this, there is no evidence to support the award of $15,000.00, and that portion was reversed.