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[ No Comments ] Posted on 11.04.08 under Legal Precedent, May, 2008
GRAYMOND BUTLER, Appellant,v.CITY OF JACKSONVILLE, Appellee.
Case No. 1D06-5918.
District Court of Appeal of Florida, First District.
Opinion filed May 8, 2008.
The claimant, Graymond Butler, appeals an order of the judge of compensation claims (JCC) denying his claim for permanent total disability (PTD) benefits resulting from his compensable accident of March 12, 1996. The claimant argues that he was entitled to the presumption that his peripheral vascular disease (PVD) was caused by his occupation as a firefighter. The claimant also argues that he was entitled to PTD benefits because his PVD met or equaled a listed impairment. We agree and reverse.
Section 112.18(1), Florida Statutes (1996), also referred to as the “Heart/Lung Bill,” provides in pertinent part:
“Any condition or impairment of health of any Florida municipal . . . firefighter caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence.”
In the instant case, the JCC denied the claim for PTD benefits despite having found that the claimant’s PVD met a listed impairment under the third step of the inquiry. Although not acknowledged by the JCC in his final order, by finding that the claimant met a listed impairment, the JCC should have found the claimant disabled without any further inquiry. The JCC, however, went on to the fourth and fifth steps and found that the claimant was not disabled under the fifth step. This was error. It appears from the final order that the JCC did so because he concluded that the claimant’s PVD did not result from the claimant’s occupation as a firefighter. As discussed previously, the claimant was entitled to the presumption that his PVD was caused by his occupation as a firefighter. Therefore, the JCC erred in denying the claim for PTD benefits.
[ No Comments ] Posted on 11.04.08 under Legal Precedent, May, 2008
AMS STAFF LEASING, INC./ANDREWS ROOFING, LLC./ ASPEN ADMINISTRATORS/ PROVIDENCE PROPERTY & CASUALTY INSURANCE COMPANY, Appellants,v.JESUS INFANTE ARREOLA, Appellee.
Case No. 1D06-5727/07-1202. Consolidated Cases
District Court of Appeal of Florida, First District.
Opinion filed January 31, 2008.
PER CURIAM.
In this workers’ compensation appeal, the appellants challenge two orders of the JCC; one awarded the claimant TPD benefits, and the other directed the E/C to authorize claimant’s continuing medical care with an orthopedic physician in Mexico.
The appellants contend that Dr. Granados is not a physician because he is not licensed under chapter 458, or under the laws of any other state in the United States.
We conclude that a foreign physician may render compensable services to workers’ compensation claimants injured in Florida. Thus, the trial court did not err in directing the E/C to authorize continued treatment for claimant by a Mexican physician
I. Background
The claimant is a 34 year old undocumented alien who had illegally entered the United States from Mexico. In January of 2005, while working in Florida, the claimant was involved in a compensable accident which is the subject of these appeals.
The appellants claim that the definition of “physician” under Chapter 458 does not include doctors living outside the United States who do not meet the same national requirements and qualifications to practice in the USA. According to section 440.13(2)(a), Florida Statutes (2005), an employer must provide medical care “only when such care is given based on a referral by a physician as defined in this chapter.” (Emphasis added). “Physician” is defined in section 440.13(1)(q), as follows:
[A] physician licensed under chapter 458, an osteopathic physician licensed under chapter 459, a chiropractic physician licensed under chapter 460, a podiatric physician licensed under chapter 461, an optometrist licensed under chapter 463, or a dentist licensed under chapter 466, each of whom must be certified by the agency as a health care provider.
Whether the Florida workers’ compensation statutes contemplate treatment by a physician not licensed in any state in the United States appears to be an issue of first impression.
Additionally, according to Florida Administrative Rule 59A-29.002(d), the requirement for certification does not apply to health care providers of medical services outside the State of Florida. That rule provides that health care providers rendering services outside the state of Florida are not required to be certified in order to provide services pursuant to section 440.13, Florida Statutes.
[ No Comments ] Posted on 11.04.08 under Legal Precedent, May, 2008
GLORIA HAMPTON, Appellant,v.FANTASTIC SAM’S and UNITED SELF INSURED SERVICES, Appellees.
Case No. 1D06-6234 1st DCA
Opinion filed February 25, 2008
Workers’ compensation is entirely a creature of statute. See Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So. 2d 58, 60 (Fla. 4th DCA 2004); see also Farhangi v. Dunkin Donuts, 728 So. 2d 772, 773 (Fla. 1st DCA 1999) (”A JCC has no authority or jurisdiction beyond what is specifically conferred by statute.”). Nothing in chapter 440 gives an authorized treating physician the authority to transfer care to another physician upon his retirement, and generally a claimant may not select a physician of his or her choice without the e/c’s prior authorization. See Marcy v. Charlotte County Sheriff’s Office, 599 So. 2d 1319, 1321 (Fla. 1st DCA 1992). Accordingly, we affirm that portion of the JCC’s order denying payment of Dr. Walker’s and Nurse Hansted’s bills and denying further treatment with them.
[ No Comments ] Posted on 11.04.08 under Legal Precedent, May, 2008
James KRAMER, Appellant,v.PALM BEACH COUNTY and Palm Beach County/Division of Risk Management, Appellee.
Case No. 1D07-1551.
District Court of Appeal of Florida, First District.
Opinion filed March 31, 2008
Claimant, a bridge tender for Palm Beach County, suffered leg injuries after tripping on a pile of debris left in a county right-of-way as a result of Hurricane Wilma. At his compensability hearing, the JCC heard testimony that Claimant was not parked in the designated bridge tender’s parking area, but rather parked his vehicle in the parking lot of a nearby shopping center. The injury occurred just prior to 6:00 a.m., as Claimant walked from the shopping center to the bridge house to begin his shift.
The JCC found that Claimant’s injury fell within the “going or coming” rule set forth in section 440.092(2), Florida Statutes (2004), and denied compensability. Claimant argues that his injury either fell within the “premises” exception to the rule or was the result of a “special hazard,” which is another exception to the general rule.
We agree with the JCC that Claimant’s injury did not occur on Employer’s premises, and affirm on that ground; however, we agree with Claimant that his injury fits within the special hazard exception.
If an accident is deemed to have occurred off-premises, an employee’s injury is compensable if it is caused by a special hazard on a normal and customary route used by the employee as a means of entry to and exit from the employee’s place of work. See Doctor’s Bus. Serv., Inc. v. Clark, 498 So. 2d 659, 663 (Fla. 1st DCA 1986) (en banc). There are two prongs to the special hazard exception: (1) the presence of a special hazard at a particular off-site location, and (2) close association of the access route to the work premises. Toyota of Pensacola v. Maines, 558 So. 2d 1072, 1075 (Fla. 1st DCA 1990)
[ No Comments ] Posted on 11.04.08 under Legal Precedent, May, 2008
Francisco Ibarra, Appellant, v. Mario E. Izaguirre and Continucare Corporation, Appellees.
District Court of Appeal of Florida, Third District.
Opinion filed May 21, 2008.
Francisco Ibarra appeals the trial court’s final order dismissing his complaint with prejudice for perjury and perpetration of fraud upon the court. Dismissal with prejudice is unreasonably harsh given the facts of the case, and we therefore reverse the trial court’s order.
A trial court has the authority to grant a motion to dismiss an action upon a finding of fraud by a party. Rios v. Moore, 902 So. 2d 181, 183 (Fla. 3d DCA 2005). However, this power should be used cautiously and sparingly and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrongdoing. Id. Additionally, fraud must be proven by clear and convincing evidence. Howard v. Risch, 959 So. 2d 308, 312 (Fla. 2d DCA 2007).
Clear and convincing evidence of fraud is not present in this case. The slip at the bank never resulted in a formal claim with retained counsel. Ibarra’s answers can reasonably be viewed as a misinterpretation. The alleged inconsistencies can be better handled by impeachment and/or vigorous cross examination. Dismissal with prejudice is unreasonable and an abuse of discretion based on the facts of this case.
This ruling is not a license to lie. In cases where fraud can be proven by clear and convincing evidence, it is clearly within the trial court’s discretion to punish the offending party by dismissal. The facts of this case, however, do not rise to this level. The punishment of dismissal does not fit the crime.
[ No Comments ] Posted on 11.04.08 under Legal Precedent, May, 2008
PATRICIA GRANADOS, Appellant,v.MARIANNE ZEHR AND SONJA S. ZEHR,. Appellee.
Case No. 5D07-515.
District Court of Appeal of Florida, Fifth District.Opinion filed April 18, 2008
The sole issue in this appeal is whether the trial court erred in dismissing with prejudice a personal injury action filed by the plaintiff, Patricia Granados, based on her purported fraud on the court. The fraud was founded on certain responses given by Ms. Granados to discovery propounded by the appellees.
Ms. Granados filed a personal injury action against the appellees for injuries she incurred as a result of an automobile collision. In an answer to an interrogatory Ms. Granados denied that she had been suffering from any physical infirmity, disability or sickness at the time of the accident. In subsequent interrogatories she claimed that as a result of the accident, she injured her low back, neck and left shoulder, and as a result, suffered from headaches, mood swings, nausea, irritability, vision impairment and sensitivity to light.
The appellees filed a motion to dismiss the complaint for fraud upon the court. They based their motion on the fact that the medical records reflected that Ms. Granados had back pain and headaches prior to the accident, although in her answers to interrogatories she denied pre-accident back pain and headaches.
The trial court granted the motion of the appellees to dismiss the complaint with prejudice after concluding that Ms. Granados committed a fraud on the court in connection with the answers to the interrogatories propounded by the defense. We agree with Ms. Granados that the trial court erred in dismissing her case.
Although a trial court has the inherent authority to dismiss actions based on fraud and collusion, the power of dismissal should be used “cautiously and sparingly,” and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing. We must always be mindful of the constitutional guarantee that the courts will be available to every person for redress of injury. See Art. I, § 21, Fla. Const. In recognition of this guarantee the party alleging fraudulent behavior must, accordingly, prove its position by clear and convincing evidence. Distefano v. State Farm Mut. Auto. Ins. Co., 846 So. 2d 572, 574 (Fla. 1st DCA 2003).
Accordingly, we reverse the order dismissing the complaint of Ms. Granados with prejudice, and remand with instructions to reinstate the complaint.
[ No Comments ] Posted on 11.04.08 under June, 2008, Legal Precedent
JUDITH S. BASHAWAY, Appellant,v.CHENEY BROS., INC., a Florida corporation and ALEX E. ROBERTS, Appellees.
Case No. 1D07-1615.
District Court of Appeal of Florida, First District.Opinion filed May 15, 2008
Appellant, Judith Bashaway, maintains a long-term committed relationship with her partner, Melinda Garrison. Melinda suffered injuries in an automobile accident and brought a civil action against appellees, Cheney Brothers, Inc., and Alex Roberts (collectively "Cheney"). Judith joined Melinda as a plaintiff in that suit. Count III of the suit concerned a claim made by Judith for loss of consortium. Cheney moved for dismissal of Judith’s claim, setting out that Judith and Melinda were not legally married at the time of the injury and further that section 741.212, Florida Statutes (2006), prohibits recognition of marriage between persons of the same sex in any event. The circuit court granted the motion and entered final judgment against Judith as to Count III. We affirm because a consortium claim under Florida law is a derivative claim dependent upon legal status that does not exist in the present case.
* The present case, of course, has to do with the rights and liabilities of third persons. Florida law has long recognized that an agreement between unmarried, cohabitating parties, once proven, will be enforced by the courts. See, e.g. Posik v. Layton, 695 So. 2d 759 (Fla. 5th DCA 1997); Crossen v. Feldman, 673 So. 2d 903 (Fla. 2d DCA 1996); Stevens v. Muse, 562 So. 2d 852 (Fla. 4th DCA 1990).
[ No Comments ] Posted on 11.04.08 under June, 2008, Legal Precedent
769 So.2d 508 (Fla.App. 5 Dist. 2000)
AMERICAN GENERAL HOME EQUITY, INC., Appellant,v.COUNTRYWIDE HOME LOANS, INC., etc., et al., Appellees.
DISTRICT COURT OF APPEAL OF FLORIDA,FIFTH DISTRICT
October 20, 2000
Section 689.01 requires that an interest in land be conveyed “by instrument in writing, signed in the presence of two subscribing witnesses by the party…conveying…such…interest…” The statute specifically provides that a conveyance may not be accomplished “in any other manner.” Thus a deed which lacks two subscribing witnesses is insufficient to convey title. Walker v. City of Jacksonville, 360 So.2d 52 (Fla. 1st DCA 1978); Santos v. Bogh, 334 So.2d 833 (Fla. 3d DCA), cert. denied, 341 So.2d 293 (Fla.1976).
A “subscribing witness” is defined as:
He who witnesses or attests the signature of a party to an instrument, and in testimony thereof subscribes his own name to the document. One who sees a writing executed, or hears it acknowledged, and at the request of the party thereupon signs his name as a witness. (emphasis added)
Black’s Law Dictionary.
American agues that there is a question of fact in this case as to whether the deed to Pack had the required two subscribing witnesses. The quit claim deed from Ferguson to Pack has three signatures: the grantor (Ferguson), a witness, and a notary. In opposition to the summary judgment proceeding, American filed and recorded an affidavit executed by the notary to the Pack deed which states he saw Ferguson sign the deed, but he does not say he also signed it in his capacity as a witness.
While a notary may also serve as a witness, the mere existence of an acknowledgment on an instrument raises no presumption that the notary was a witness. Nor is the mere existence of the acknowledgment proof that the notary was a witness. Walker. See also Santos (rejecting argument that acknowledgment which included statement that the grantor was known to be the person subscribed in and who executed the deed meant that the notary’s signature to the acknowledgment could be regarded as that of a second subscribing witness). We find nothing in the notary’s affidavit which establishes or raises a question of fact that he was the second subscribing witness. We find Medina v. Orange County, 147 So.2d 556 (Fla. 2d DCA 1962) has no application to this case, because in that case the notary actually signed the deed as a witness after originally notarizing it.
Since there was only one subscribing witness to the Pack deed, it failed to convey title to Pack. Thus Countrywide’s interest is clearly superior to any interest American may have, and at this point, American appears to have no valid mortgage interest in the subject property.
[ No Comments ] Posted on 11.04.08 under June, 2008, Legal Precedent
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant,v.GRACE BRUSCARINO, a/k/a GAZIA BRUSCARINO and VINCENT BRUSCARINO, her husband, Appellees.
Case No. 4D07-2014.
District Court of Appeal of Florida, Fourth District.
Opinion filed June 4, 2008.
WARNER, J.
Nationwide Mutual Fire Insurance Company appeals a final judgment for damages recovered by appellee Grace Bruscarino from her underinsured motorist coverage. We affirm on both claims raised. We write to address whether the court abused its discretion in precluding Nationwide from impeaching Bruscarino with her prior testimony regarding her wage loss, when she dropped her wage loss claim on the day of trial. We hold that there was no abuse of discretion under these facts.
Bruscarino suffered injuries as a result of an automobile accident. Suing Nationwide for underinsured motorist benefits, she sought damages for her injuries, including loss of earnings and loss of ability to earn a living. Bruscarino claimed she injured her back which required continuing treatment. Her doctors treated her with pain medication, traction, and physical therapy. At trial Nationwide’s doctors disputed both the seriousness and the extent of her treatment.
Although Bruscarino originally sought damages for lost earnings, on the first day of trial, Bruscarino informed the court that she was no longer pursuing damages for lost wages or loss of future earning capacity. Nationwide explained that Bruscarino testified during her deposition that she earned $900 a week as a waitress. This conflicted with her tax returns for the same period wherein she claimed to earn $200 a week. Nationwide argued that even without the lost damages claim, it should be allowed to impeach Bruscarino’s credibility with this evidence.
When Bruscarino testified, defense counsel proffered this evidence by impeaching her testimony outside the jury’s presence. The court concluded that the evidence related to a collateral issue and was improper impeachment. The court based its holding on New England Oyster House of North Miami, Inc. v. Yuhas 294 So. 2d 99 (Fla. 3d DCA 1974) (holding that impeachment regarding a conflict between the plaintiff’s deposition testimony and income tax returns regarding past wages was improper when plaintiff dropped claim for lost wages prior to the trial).
After the close of the evidence, the jury returned a verdict in favor of Bruscarino. Nationwide seeks reversal of the final judgment because the court refused to permit impeachment with the conflict between her deposition testimony and her tax returns.
“A trial court’s decision to admit or exclude evidence is reviewed by utilizing the abuse of discretion standard of review.” Stewart & Stevenson Servs., Inc. v. Westchester Fire Ins. Co., 804 So. 2d 584, 587 (Fla. 5th DCA 2002). However, this discretion is limited by the rules of evidence. Hayes v. Wal-Mart Stores, Inc., 933 So. 2d 124, 126 (Fla. 4th DCA 2006).
This court has held, “Impeachment on collateral issues is clearly impermissible.” Strasser v. Yalamanchi, 783 So. 2d 1087, 1095 (Fla. 4th DCA 2001). When evidence “neither (1) is relevant to prove an independent fact or issue nor (2) would discredit a witness by establishing bias, corruption, or lack of competency on the part of the witness,” it constitutes collateral, impermissible evidence. Id,
The trial court relied on New England Oyster House, 294 So. 2d 99. In that case, the plaintiff, a waitress, sought damages for personal injuries resulting from a trip and fall accident. The plaintiff originally claimed entitlement to damages for lost wages but dropped the claim before the start of trial. While the lost wages claim was pending, the plaintiff testified at a deposition that she failed to declare the total amount of tips she earned as a waitress on her income tax returns. Both the trial and appellate court concluded that the defendant could not impeach the plaintiff with this testimony at trial, because the lost wages claim had been dropped.
To counter New England Oyster House, Nationwide cites American Automobile Association, Inc. v. Tehrani, 508 So. 2d 365 (Fla. 1st DCA 1987), in support of its position that the tax information was allowable impeachment. Tehrani also involved a plaintiff injured in a vehicular accident. One of the issues on appeal was the exclusion of tax returns as impeachment of the plaintiff who had abandoned his lost wage claim. In its entirety, the court said:
“The court erred in excluding the plaintiffs’ tax returns from evidence when offered by the defendants. The tax returns were not material to prove the earnings of the plaintiffs because they abandoned their claim for loss of earnings. However, the plaintiffs had testified to loss of earnings prior to abandoning the claim for lost wages and the tax returns were admissible to impeach their credibility as witnesses.”
Id, at 369-70. It does not appear, however, that Nationwide cited Tehrani to the trial court. Thus, the trial court relied on New England Oyster House, a case with identical facts as the present case. Where the court relies on the holding of an identical case of evidence exclusion, and there is no contrary authority from our district, the court does not abuse its discretion in excluding evidence.
In addition, our precedent is in line with New England Oyster House. We examined the use of impeachment on a collateral issue in Doremus v. Florida Energy System of South Florida Inc., 634 So. 2d 1106 (Fla. 4th DCA 1994). That case also involved a personal injury lawsuit arising out of a car accident. Defendant sought to impeach the plaintiff with evidence that plaintiff misrepresented the status of his discharge from the military on an employment application. Defendant contended that it went to the plaintiff’s “truth and veracity.” The trial court admitted the evidence, but we reversed, concluding that it was “impeachment on a collateral issue, which is impermissible.” Id, at 1108. In doing so, we noted that section 90.608, Florida Statutes, permits the credibility of a witness to be impeached by material facts. We also cited to C. Ehrhardt, Florida Evidence 294-5 (2d ed. 1984), for the proposition that the test for determining whether impeachment evidence is collateral is whether the impeaching evidence would have been admissible for a purpose other than the inconsistency. See also Faucher v. R.C.F. Developers, 569 So. 2d 794, 804 (Fla. 1st DCA 1990) (”it is improper to litigate purely collateral matters solely for the purpose of impeaching a party or witness”), overruled on other grounds by Ullman v. City of Tampa Parks Dep’t, 625 So. 2d 868 (Fla. 1st DCA 1993).
In light of Doremus and considering the limitations on impeachment as contained in section 90.608, Florida Statutes, we conclude that the trial court did not err in refusing to permit impeachment of Bruscarino with her tax returns, as the issue of her income had become a collateral matter.
We have carefully examined the record as to the other issue presented and conclude that no error has occurred.
Affirmed,
POLEN and TAYLOR, JJ., concur.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case No. 03-727 AD.
Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellant.
Eric S. Block of Law Offices of Eric S. Block, P.A., Michael J. Korn and Mary C. Coxe of Korn & Zehmer, P.A., Jacksonville, for appellees.
Not final until disposition of timely filed motion for rehearing.
[ No Comments ] Posted on 11.04.08 under June, 2008, Legal Precedent
MARION COUNTY AND USIS, Appellants,v.ROBERT E. FUTCH, Appellee.
Case No. 1D07-3053
District Court of Appeal of Florida, First District.
Opinion filed June 5, 2008
An appeal from an order of the Judge of Compensation Claims, John P. Thurman. Betty D. Marion of The Marion Law Firm, Ocala, for Appellants. Kenneth M. Hesser of Daniel L. Hightower, P.A., Ocala, for Appellee.
PER CURIAM.
In this workers’ compensation case, the employer/carrier (E/C) appeal the JCC’s order determining that the claimant’s late filing of his injury report was excused by the E/C’s actual knowledge of the accident and by exceptional circumstances. We find that the claimant’s untimely notice was not excused and reverse accordingly.
On September 10, 2005, the claimant, Robert Futch, a lieutenant with the Marion County Fire Rescue, suffered an injury while responding to a house fire. While the claimant experienced some immediate discomfort and removed himself from the fire, he neither reported the accident or any injuries to either of the supervisors at the scene nor sought treatment for his injuries until well over a month after the accident. Subsequently, more than 30 days after the accident, the claimant filed a formal notice of the accident and filed two petitions for benefits (PFBs), which the E/C denied as untimely. The JCC conducted a hearing on the PFBs and excused the claimant’s untimely filing pursuant to sections 440.185(1)(a) & (d), Florida Statutes (2005).
Sections 440.185(1)(a) & (d) provide that an employee who fails to report any injury sustained during the course of employment to his employer within 30 days will be barred from filing a PFB unless the employer or the employer’s agent had actual knowledge of the injury, or exceptional circumstances outside the scope of those outlined in previous subsections justify such failure.
Although the JCC determined that the claimant’s untimely filing was excused by the E/C’s actual knowledge of the accident, we find that the JCC erroneously applied a constructive knowledge analysis in making its determination. Section 440.185(1)(a) does not define the term actual knowledge; however, Black’s Law Dictionary defines the term as “direct and clear knowledge or knowledge of such information as would lead a reasonable person to inquire further.” The record in this case does not contain any evidence that either supervisor present at the scene witnessed the claimant’s accident. Furthermore, the record clearly establishes that the claimant failed to immediately report his accident and injury to the supervisors present at the scene or to any other reporting officer within the 30-day reporting period. Thus, the JCC did not have competent, substantial evidence to find that the E/C had actual knowledge of the accident.
The JCC also found that the purpose of the statute is to disqualify questionably injured workers that, without good cause, delay reporting an injury and determined that, because there was no accusation that the claimant lied about the incident, exceptional circumstances existed. In workers’ compensation cases, exceptional circumstances require that some uncommon or extraordinary event prevented the claimant from timely filing an accident report. See LARSON SERIES: DUBREUIL’S FLORIDA WORKERS’ COMPENSATION HANDBOOK §9.01(4)(b) (2007). The plain language of sections 440.189(1)(a) and (d) provides that failure to report an injury within 30 days will bar the filing of a PFB. A finding that the claimant is truthful about the injury is not an exceptional circumstance under the statute. Absent additional findings specifying other exceptional circumstances, the JCC did not have competent, substantial evidence to find that there were exceptional circumstances. See Clay County Sch. Bd. v. Robison, 725 So. 2d 425, 426 (Fla. 1st DCA 1999) (finding that the JCC did not apply the correct legal standard and requiring that the JCC specify the exceptional circumstances excusing timely notice of the injury). Thus, the JCC erred in finding that the claimant’s accident report was timely filed.
REVERSED.
BARFIELD, POLSTON, and ROBERTS, JJ., CONCUR.
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