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  1. 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. 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. 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. 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. 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. 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. 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 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