AUTHERIA MITCHELL, APPELLANT,
v.
METRO DADE AND RISK MANAGEMENT FOR DADE CO., APPELLEES
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The court reversed and remanded because the judge of compensation claims failed to afford the claimant an in-person opportunity to testify despite indicating disbelief of her hearing testimony, violating established precedent requiring live testimony when credibility is at issue.
When a judge of compensation claims indicates disbelief of a claimant's hearing testimony in denying a workers' compensation claim, the claimant must be afforded an opportunity to testify in person before that judge.
[1] When a judge of compensation claims denies a workers' compensation claim based on disbelief of the claimant's testimony, the claimant is entitled to testify in person bef…
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Join FLexlaw to unlock all legal intelligenceAutheria Mitchell appealed a workers' compensation claim denial by a successor judge of compensation claims who reviewed only a written record summary…
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PER CURIAM
When this case was last before us, we remanded for reconsideration in light of Closet Maid v. Sykes, 763 So. 2d 377 (Fla. 1st DCA 2000) (en banc).
See Miami-Dade County v. Mitchell, 754 So. 2d 773, 774 (Fla. 1st DCA 2000).
On remand, a successor judge of compensation claims reviewed the written record and entered the order now under review. Claimant contends that she should have been allowed to testify in person before the judge of compensation claims since the order denying her claim reflects that the judge of compensation claims did not credit her hearing testimony. See Greenwell v. Bellsouth Telecomms., 732 So. 2d 333, 333 (Fla. 1st DCA 1998); Palmieri v. NAACO, 677 So. 2d 1310, 1311 (Fla. 1st DCA 1996); Harrington v. Vida Appliance Corp., 542 So. 2d 1006, 1007 (Fla. 1st DCA 1988); Maddox v. Rinaldi’s Expressway Lanes, 459 So. 2d 421, 422 & n. 1 (Fla. 1st DCA 1984); Rappoport v. American Hosp., 406 So. 2d 1244, 1245 (Fla. 1st DCA 1981).
See also Frazier v. Bay County, 781 So. 2d 464, 464 (Fla. 1st DCA 2001); Hatcher v. St. Joe Paper Co., 608 So. 2d 65, 66 (Fla. 1st DCA 1992); Carr v. Byers, 578 So. 2d 347, 347-48 & nn. 1-2 (Fla. 1st DCA 1991); Reaves v. Reaves, 546 So. 2d 744, 745 (Fla. 2d DCA 1989); Anders v. Anders, 376 So. 2d 439, 440 (Fla. 1st DCA 1979).
Particularly since the record contained only a summary of the testimony adduced at the original hearing, we are constrained to reverse. On remand, the judge of compensation claims shall afford claimant an opportunity to testify in person.
REVERSED and REMANDED.
BENTON, VAN NORTWICK, and LEWIS, JJ., CONCUR.
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Tyner v. State, 805 So. 2d 862 (Fla. 2d DCA 2001)…which exceeds 0.08 is an element of DUI. See § 316.193, Fla. Stat. (1995). See also Robertson, 604 So. 2d at 792 n. 14. This instruction is available to the State regardless of the presumption instruction. Id. at 497. See also Richardson v. State, 797 So. 2d 10 (Fla. 5th DCA 2001). Mr. Tyner raises as an additional error in the trial below the trial judge’s instructions to the jury that the deceased victim’s failure to wear a seat belt was not a defense to DUI/manslaughter. We find no error in the giving…
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Miami-Dade Cnty. v. Autheria Mitchell, 835 So. 2d 1196 (Fla. 1st DCA 2002)…n in light of Closet Maid v. Sykes, 763 So. 2d 377 (Fla. 1st DCA 2000)(en banc), to determine whether the workplace accident was the major contributing cause of the claimant’s need for future medical treatment)(“Mitchell I”); Mitchell v. Metro Dade, 797 So. 2d 10 (Fla. 1st DCA 2001)(re-manding for the Judge of Compensation Claims (“JCC”) to afford claimant an opportunity to testify in person)(“Mitchell II”). In Mitchell II, the claimant appealed the JCC’s denial of her claim for future medical benefits. The…
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Hamzik v. State, 889 So. 2d 216 (Fla. 5th DCA 2004)…la.1991); State v. Banoub, 700 So. 2d 44 (Fla. 2d DCA 1997); and Tracton v. City of Miami Beach, 616 So. 2d 457 (Fla. 3d DCA 1993). As to the asserted instructional error, see State v. Van Hubbard, 751 So. 2d 552 (Fla.1999); and Richardson v. State, 797 So. 2d 10 (Fla. 5th DCA 2001), review denied 817 So. 2d 849 (Fla.2002). On the issue of whether a continuance should have been granted, we conclude that the trial court did not abuse its discretion. See Branch v. State, 685 So. 2d 1250 (Fla.1996), cert. denie…
Authorities Cited (14 total)
- Closet Maid & Crawford & Co. v. Sykes, 763 So. 2d 377 (Fla. 1st DCA 2000)
- Carr v. Byers, 578 So. 2d 347 (Fla. 1st DCA 1991)
- Anders v. Thaddeus A. Anders, 376 So. 2d 439 (Fla. 1st DCA 1979)
- Cornelia Rappoport v. Am. Hosp. & Risk Corp. of Fla., 406 So. 2d 1244 (Fla. 1st DCA 1981)
- Reaves v. Reaves, 546 So. 2d 744 (Fla. 2d DCA 1989)
- Maddox v. Rinaldi's Expressway Lanes & Cas. Reciprocal Exch., 459 So. 2d 421 (Fla. 1st DCA 1984)
- Harrington v. Vida Appliance Corp. & Gulf Ins. Co., 542 So. 2d 1006 (Fla. 1st DCA 1988)
- Palmieri v. Naaco & Am. Policyholders Ins. Co., 677 So. 2d 1310 (Fla. 1st DCA 1996)
- Hatcher v. ST. JOE Paper Co., 603 So. 2d 65 (Fla. 1st DCA 1992)
- Miami-Dade Cnty. v. Autheria Mitchell, 754 So. 2d 773 (Fla. 1st DCA 2000)