1. MIJS’ Florida Comp Law ChroniclePage 1 of 7
MIJS’ Florida Comp Law Chronicle
March 2012
,
Inside This Issue:
o Proving Fraud
o Proper
Application of
PTD Benefits
o Premises
Liability,
Comparative
Negligence,
Duty to Warn
o Insurance
Coverage,
Uninsured
Motorist
Coverage
o About MIJS
Moore, Ingram, Johnson & Steele LLP (904)428-1465
PROVING FRAUD – False Statement vs. Common Exaggeration
than providing her with reasonable
work restrictions.
Because the employer/carrier
considered the claimant’s
malingering to be a form of fraud, as
defined by Section 440.105(4)(b),
Florida Statutes (2006), the
employer/carrier denied continued
benefits on this basis. The Judge of
Compensations agreed with the
employer/carrier and found that
while no one example rose to the
level of fraud, when all the facts
were taken into account together, it
was clear the claimant had an
overwhelming pattern of making
misleading statements, and
demonstrating inappropriate pain
behaviors and conduct.
Unfortunately for the defense, the
First DCA was not convinced. In its
opinion, the DCA noted that the
claimant’s “posturing and cog
wheeling” were neither oral nor
written statements, which was a
requirement when determining
whether fraud existed in a workers’
compensation matter. In fact, the
DCA compared the claimant’s
actions to behavior captured on
surveillance, and referenced
Dieujuste v. J. Dodd Plumbing, Inc.,
3 So.3d 1275 (Fla. 1st
DCA 2009).
There’s not a day that goes by in
the routine practice and review of
workers’ compensation cases, that
an adjuster will not come across a
claim where the injured worker
greatly exaggerates his or her pain
complaints and demonstrates a
clear propensity for stretching the
truth. And of course, all of this is
done to either prolong the
claimant’s involvement in the
workers’ compensation process, or
to simply secure a more favorable
settlement in the end. But when
does the ordinary exaggeration of
one’s pain become a case of fraud?
This question was recently
answered by the Florida First
District Court of Appeals in the
case Lucas v. ADT Security,
Inc./Sedgwick CMS.
While working for ADT Security,
the claimant, Jerette Lucas, suffered
an on-the-job accident resulting in a
compensable ankle injury. During
the course of her treatment with
orthopedist, Dr. Arnold Graham
Smith, it was determined that the
claimant routinely made complaints
of pain that were significantly out
of proportion with the physical
examination findings and
diagnostic studies. The claimant
also routinely reported non-organic
symptoms and consistently
Requested to the doctor that she be
placed on a no-work status, rather

2. MIJS’ Florida Comp Law ChroniclePage 2 of 7
In the Dieujuste case, the DCA determined
that surveillance video could not be used as a
predicate for a disqualification and
termination of benefits under Sections
440.105 and 440.09. As in Lucas, there was
no evidence in the actual record that the
claimant told anyone, including Dr. Graham
Smith, that she could or could not perform
certain activities, just that she simply did not
want to. As a result, there was no direct
finding of fraud.
The clear moral of the story here is to secure
actual statements or testimony from the
injured worker concerning his or her habits
and activities of daily living. Your defense
attorney should take the opportunity in the
claimant’s deposition to discuss hobbies, or
activities the claimant was involved in prior
to the accident. False statements regarding
old hobbies that an injured worker can no
longer physically tolerate, will go a long way
to turn that simple malingering case into a
solid fraud defense.
By: Carla C. Wester
Although Florida courts have long held that
there is no provision for temporary
permanent total disability benefits, this has
not prevented workers’ compensation
claimants from pushing the envelope. In
the most recent attempt to secure this non-
benefit, the First DCA continued to support
its prior rulings.
On January 18, 2007, while working for
Matrix Employee Leasing, Shawn Hadley
suffered a left knee injury, which required a
number of surgeries resulting from a
complication during his first surgical
procedure. By January, 2009, the claimant
had reached statutory MMI, meaning he
exhausted his entitlement to temporary
indemnity benefits as he had received 104
weeks of total compensation. Because the
claimant’s treating physician, Dr. Hakim,
determined the claimant remained on total
disability status, and even though he had
not achieved total MMI, the claimant filed a
petition for benefits seeking payment of
permanent total disability benefits.
Although the lower court, led by Judge
Stephen Rosen, acknowledged that there
was no statutory provision for temporary
PTD benefits, he still awarded the claimant
these benefits noting that the law left the
claimant “out in the cold with no basis for
indemnity benefits.”
PROPER APPLICATION OF
PTD BENEFITS – Bridging the
Gap for Disabled Workers

3. MIJS’ Florida Comp Law ChroniclePage 3 of 7
On appeal, the DCA emphatically disagreed. In
doing so, the DCA reminded us of their 13-year-
old decision in City of Pensacola Firefighters v.
Oswald, 710 So.2d 95, where they established a
specific test for determining an injured workers’
entitlement to PTD benefits in situations where a
claimant has exhausted his or her entitlement to
104 weeks of temporary indemnity benefits.
Specifically, if a claimant has reached statutory
MMI, he/she must prove that at the time he/she
would have actually achieved MMI, their
disability would be permanent and total.
In the Hadley case, the claimant’s treating
physician, Dr. Hakim, testified that once the
claimant had reached actual physical MMI, he
may be able to return to work in at least a light
duty capacity. As a result, the DCA determined
the claimant had failed to establish that he would
be permanently and totally disabled at the time he
reaches MMI. Therefore, his request for PTD
benefits was denied.
The DCA also cautioned Judge Rosen, and other
lower tribunal judges, about attempting to rewrite
statutory law to eliminate this potential gap in
indemnity benefits. It was noted that the Oswald
decision was years old, and that had the
Legislature attempted to rewrite, or change the
law (as they clearly did with attorney’s fees), they
certainly have the power to do so. This power
however, does not lie with the Courts.
By: Carla C. Wester, Esquire
Premises Liability, Comparative
Negligence, Duty To Warn
Burton v. MDC PGA Plaza Corp.
2012 WL 385453, 37 FLW D348a (Fla. 4th DCA
Feb. 8, 2012)
The Defendant's Duty To Maintain Premises In
Reasonably Safe Condition Is Not Discharged By
Plaintiff's Knowledge Of The Dangerous Condition,
But Gives Rise To Issues Of Comparative
Negligence; Court Also Concluded That Tenant's
Ability To Manage And Control Area Where Injury
Occurred Creates Question Of Fact On Tenant's
Liability, Even Where Lease Places Duty To
Maintain On Landlord
Plaintiff was helping to open a new CVS Pharmacy
and was working on the premises for at least a
week. She had noticed a large pothole near the
store's back door and even informed her co-workers
and CVS Management about it. Nevertheless, she
was seriously injured when she stepped into the
pothole while loading a vehicle, tripped and fell to
the ground. She brought suit against CVS and its
landlord, MDC. The Trial Court granted summary
judgment to the defendants on the ground that
plaintiff could not recover from either defendant
because she knew about the pothole before she fell.
On appeal, the court reversed, noting Florida's
longstanding law that a landowner's duty to warn is
separate and distinct from the duty to maintain the
premises in a reasonably safe condition. "Case law
consistently recognizes that the fact that a danger is
open and obvious may operate to discharge a
landowner's duty to warn, but it does not discharge
the duty to maintain the property in a reasonably
safe condition."

4. MIJS’ Florida Comp Law ChroniclePage 4 of 7
Commercial landlord's and tenant's duty to
maintain the premises in a reasonably safe
condition was not discharged by pedestrian's
knowledge of the pothole in parking lot before
she fell, and instead, pedestrian's knowledge
merely raised an issue of fact as to her own
comparative negligence. The court also noted
that a Pothole is not a natural condition, nor does
it create a reasonable risk of harm, and a
pothole's obvious nature does not make it, as a
matter of law, a reasonably safe condition for
premises liability purposes. "A pothole forms
when a landowner fails to maintain the property.
. ."
In addition, the appellate court rejected CVS's
argument that it had no duty because of its lease
with MDC, which obligated MDC to maintain
the parking lot. Noting that a party who controls
a property by inviting people to utilize the
property may become responsible to invitees in
the same manner as an owner. The court further
noted that the ability to manage and control an
area is a question of fact. And moreover, a
commercial tenant may have a duty, independent
of the landlord's duty, to maintain premises in a
reasonably safe condition regardless of whether
the landlord has contractually assumed
responsibility to maintain the premises. Levy v.
Home Depot, Inc. , 518 So. 2d 941, 942 (Fla. 3d
DCA 1987); Bovis v. 7-Eleven, Inc., 505 So. 2d
661, 664 (Fla. 5th DCA 1987).
The court thus reversed the summary judgment
in favor of the defendants.
By: Bram L. Scharf, Esquire
Fifth DCA Holds That Failure To Attend
Compulsory CME Is A Breach Of Condition
Subsequent, Which Is An Affirmative
Defense Which Insurer Has Burden To Plead
And Prove And That Breach Did Not Forfeit
Benefits Without Regard To Prejudice To
Insurer - Also Concludes That Insurer Was
Not Prejudiced By Breach Even Though It
Failed To Obtain CME During 60 Day
"Cure" Period Allowed Under 624.155
State Farm Mut. Auto. Ins. Co. v. Curran
2011 WL 6003288, 36 FLW D2635c (Fla.
5th DCA, Dec. 2, 2011)
Curran was injured in a traffic accident
involving an underinsured motorist. With
State Farm's approval, she settled with the
underinsured motorist. Thereafter, on July
19, 2007, through counsel, she requested her
$100,000 UM policy limits based upon her
estimate that her damages were
approximately $3.5 million. She offered to
settle the case and release State Farm from
an uninsured motorist lawsuit if it tendered
the policy limits no later than August 18,
2007. On August 17, 2007, State Farm asked
Curran's counsel, Mr. David Alpizar, to
contact it to discuss coordinating the date
and time for Curran to undergo a CME
pursuant to the terms of the policy.
Insurance Coverage,
Uninsured Motorist

5. MIJS’ Florida Comp Law ChroniclePage 5 of 7
That request triggered a series of letters
between the attorneys, that referenced
limitations and conditions on the CME
requested by the insured. Ultimately, the
insured did not attend the CME and filed suit
instead. In addition, on August 21, 2007,
counsel for the insured advised that he had
filed a civil remedies notice and that the time
for tendering the policy limits had expired.
More letters were exchanged regarding the
CME and more conditions and objections
interposed by the insured's attorney. After all
was said and done, the insured did not attend
the CME, but filed suit on September 10,
2007.
Immediately upon filing suit (seven days after
the scheduled examination), Curran offered to
submit to a medical examination pursuant to
Florida Rule of Civil Procedure 1.360 (also
well before the expiration of the time period
under the Civil Remedies Notice). State Farm
declined Curran's offer, electing instead to
defer an examination until after the court first
decided "if your client's failure to cooperate
and failure to comply with all policy terms,
conditions, limits, provisions and applicable
Florida law affects coverage under the
provisions which you now seek benefits."
After the lower court ruled, the record reflects
that Curran submitted to a CME with Dr.
Uricchio. State Farm elected not to call Dr.
Uricchio as a trial witness. There is no
indication that the validity of the CME was
affected by the short lapse of time attributable
to Curran or that the rule 1.360 examination
was materially different from the CME State
Farm would have performed under the
contract. The Court found that the effect of
Curran's breach was clearly inconsequential as
it pertained to the merits of her claim for UM
benefits.
The court ruled that the insured breached her
duty under the UM policy to attend a CME upon
insurer's request, where insured failed to attend
two scheduled examinations. The insured was
uncooperative in scheduling an examination
despite insurer's reasonable requests and insurer's
offer of transportation and acquiescence that
insured's counsel and a reporter be permitted to
attend the examination.
However, the Court ruled that the insured's
breach of obligation under the UM policy to
submit to a CME upon insurer's request did not
prejudice insurer, and therefore insured did not
forfeit UM benefits by her breach of the policy,
which did not contain language imposing a
forfeiture of benefits for a breach of CME
obligation,
Having thus concluded that prejudice was an
issue and that the burden was on State Farm to
plead and prove prejudice, they concluded that
State Farm failed to meet its burden. They noted
that State Farm made no assertion of prejudice in
its pleadings or arguments, instead placing total
reliance on De Ferrari and Goldman. Further,
they stated, that "even had State Farm argued
prejudice, the record refutes any such allegation,
at least to the extent that it would affect
entitlement to the UM contract benefits." The
court stated:
However, the court cautioned that they did not
intend that the breach of contract by Curran could
not be considered in the context of any
subsequent action for bad faith. The court
acknowledged conflict with DeFerrari and
Goldman and certified the following question
to the Florida Supreme Court.

6. MIJS’ Florida Comp Law ChroniclePage 6 of 7
When an insured breaches a CME
provision in an uninsured motorist
contract, (in the absence of
contractual language specifying the
consequences of the breach) does
the insured forfeit benefits under
the contract without regard to
prejudice, or does the prejudice
analysis described in Bankers
Insurance Co. v. Macias, 475 So.
2d 1216, 1218 (Fla. 1985), apply?
If prejudice must be considered,
who bears the burden of pleading
and proving that issue?
By: Bram L. Scharf, Esquire

7. MIJS’ Florida Comp Law ChroniclePage 7 of 7
10151 Deerwood Park Blvd.
Bldg. 200, Suite 250
Jacksonville, FL 32256
PHONE:
(904) 428-1465
FAX:
(904) 672-4236
E-MAIL:
WTH@MIJS.COM
Online
www.mijs.com
This is a legal advertisement.
The articles are intended to
provide background and
general guidance to the FL
workers’ comp system.
They are not intended as legal
advice as each lawsuit is
unique and requires specific
analysis. Please contact
MIJS to discuss the details
of your claim.
About Moore Ingram Johnson & Steele…
MIJS is a value oriented law firm focused on providing customized
solutions for our clients. Based in Marietta, GA, MIJS offers a full
spectrum of legal services ranging from general liability to
transactional tax planning.
Our Tennessee offices, Knoxville and Nashville specialize in workers’
compensation defense allowing us to aggressively minimize the
overall expenses of claims. By leveraging the experience of thirteen
comp attorneys, we help employers and insurers navigate
Tennessee’s workers’ compensation system with an eye towards
cutting costs. Opening additional offices allows us to better serve our
clients by reducing travel time. Our newest office is now open and
operating in Louisville, Kentucky.
Our office in Jacksonville, Florida offers a full spectrum of legal
services ranging from general liability to probate, and of course
includes workers’ compensation defense. We are eager to service
new clients and provide quality legal services.
Please contact Troy Hart to see how MIJS can help you meet your