ATTORNEY CLIENT COMMUNICATION NO DEFENSE TO ALL
DISCOVERY DEPOSITIONS
By Mary Ann Stiles
The First District recently reversed An award of
benefits in the face of a statute of limitations defense in Waffle House v.
Scharmen.,___ So.2d ___, 2008 WL 2115745 (Fla. 1st DCA May 21,
2008).
The employer/carrier defended the claim on the basis
the claimant had not filed a claim for benefits within two years of the date of
accident or within one year of the receipt of benefits. The trial judge
awarded benefits and held the employer/carrier had failed to provide the
claimant with written notice of rights, and therefore was stopped from
asserting the statute of limitations defense. The judge also would not allow
the employer/carrier to inquire into whether the claimant’s attorney had
advised the claimant about the statute of limitations. If that had occurred,
then the claimant had actual knowledge of the statute and its operation.
The appellate court held that an employer/carrier was
entitled to depose the claimant’s attorney about whether he had advised the
claimant of the relevant statutory requirement, and that conversation was not
protected by the attorney-client privilege. The District Court reversed the
judge’s ruling and remanded the case for further proceedings and discovery.
CLAIMANTS CANNOT SUE THEIR
EMPLOYERS MERELY BECAUSE THEY DENY ONGOING WORKERS’ COMPENSATION BENEFITS
By Mary Ann Stiles
In Coca-Cola Enterprises, Inc. v Montiel,___
So.2d ___, 2008 WL 2038790 (Fla. 2d DCA May14, 2008), the First District Court
of Appeals reaffirmed the denial of benefits does not expose an
employer/carrier to civil suit..
In this case, the employer paid workers’ compensation
benefits following a workplace injury. Coca-Cola subsequently denied further benefits
because the physician concluded the claimant’s condition was due to
degenerative conditions, rather than work. The claimant sued Coca-Cola for
negligence in civil court, and Coca-Cola filed a motion for summary judgment.
The trial judge denied the summary judgment motion on
the basis that denial of further benefits estopped Coca-Cola from asserting or
claiming workers’ compensation immunity. The Second District reversed and held
Coca-Cola was entitled as a matter of law to workers’ compensation exclusivity
because merely denying benefits did not remove a dispute from the workers’
compensation system. To rule otherwise would strip an employer of the defense
and completely defeat the purpose of the law.
A denial of further or future benefits does not expose
an employer to civil negligence liability or permit a claimant to pursue
benefits outside the workers’ Compensation system.
FIRST DISTRICT COURT OF
APPEALS AFFIRMS A PREVAILING EMPLOYER/CARRIER’S ENTITLEMENT TO SEEK ATTORNEY
FEE AND COSTS
By Mary Ann Stiles
In Gluckenberger v. Seminole County, ___
So.2d ___ 2008 WL 1805484 (Fla. 1st DCA April 27, 2008), it was
confirmed a judge of compensation claims does have jurisdiction to award
attorney fee and costs under Section 440.34(3) to prevailing employer, even
though the employer did not preserve that issue in the order denying the
claimant benefits. Furthermore, there was no requirement that a judge find the
claims were frivolous or fraudulent before such costs could be assessed against
the claimant because the statute contained no such requirement.
Likewise, in F.A.Richard & Associates v.
Fernandez, 975So.2d 1224 (Fla. 1st DCA 2008), an
employer/carrier’s failure to plead entitlement to costs did not prohibit a
claim for recovering costs after prevailing against a claimant. The court held
all parties are on notice the statute provides for a prevailing part to seek to
recover such costs as a result of the filing of a
claim.
MERELY PRESENTING A FALSE
SOCIAL SECURITY CARD TO EMPLOYER DOES NOT AUTOMATICLLY DEPRIVE AN EMPLOYEE OF WORKERS’
COMPENSATION BENEFITS
By Mary Ann Stiles
In Matrix Employee Leasing v. Hernandez, 975
So.2d 1217 (Fla. 1st DCA 2008), and employee presented a false social security
card to obtain employment. Following a work-related injury, the employer
discovered the employee’s card was invalid and denied benefits based on fraud.
On appeal, the court held Section 440.105 did not deprive the claimant of
entitlement to workers’ compensation benefits because the false social security
information was not presented for the purpose of obtaining benefits.
Therefore, he could seek to recover such benefits if appropriate.
EMPLOYEE LEASING COMPANY
NOT RESPONSIBLE FOR WORKERS’ COMPENSATION COVERAGE IN ALL CASES
By Mary Ann Stiles
The First District recently held in Crum Services
v. Lopez, 975 So.2d 1184 (Fla. 1st DCA 2008) an employee leasing
company is not responsible for a claimant’s workers’ compensation coverage
where there is no evidence the claimant was an employee of the leasing company
at the time of the accident. The court also rejected the argument the claimant
was a statutory employee of the leasing company. However, the claimant could
sue the contractor or primary employer under Section 440.11 as an uninsured
employer.
What is also not clear from the appellate court’s
decision is how the fact she did not know about the purported rating affected
her waiting over four years to file a petition to seek a determination of
whether she had sustained a compensable injury. After all, the right to
permanent benefits would only arise if she had an otherwise compensable
accident or injury.
It appears that employer/carriers need to notify
claimants of any change in their cases, even when the compensability of claim
has been denied and the employer/carrier has otherwise complied with the
statute. While it is not clear from the opinion that failure of an
employer/carrier to take some action will automatically revive an otherwise
time-barred claim, if does appear that failure to disclose a material fact
might have that result.
What is also not clear from the appellate court’s
decision is how the fact she did not know about the purported rating affected
her waiting over four years to file a petition to seek a determination of
whether she had sustained a compensable injury. After all, the right to
permanent benefits would only arise if she had an otherwise compensable
accident or injury.
It appears that employer/carriers need to notify
claimants of any change in their cases, even when the compensability of claim
has been denied and the employer/carrier has otherwise complied with the
statute. While it is not clear from the opinion that failure of an employer/carrier
to take some action will automatically revive an otherwise time-barred claim,
if does appear that failure to disclose a material fact might have that result.
What is also not clear from the appellate court’s
decision is how the fact she did not know about the purported rating affected
her waiting over four years to file a petition to seek a determination of
whether she had sustained a compensable injury. After all, the right to
permanent benefits would only arise if she had an otherwise compensable
accident or injury.
It appears that employer/carriers need to notify
claimants of any change in their cases, even when the compensability of claim
has been denied and the employer/carrier has otherwise complied with the
statute. While it is not clear from the opinion that failure of an
employer/carrier to take some action will automatically revive an otherwise
time-barred claim, if does appear that failure to disclose a material fact
might have that result.
Home
