MARTIN PEREZ-RAMIREZ, APPELLANT,
v.
DEXTER DEVELOPMENT D/B/A BAILEN ISLES & ASSOCIATED INDUSTRIES, APPELLEES
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The appellate court reversed a denial of workers' compensation benefits, finding the claimant timely reported his injury, the employer waived objections to the independent medical examiner's testimony, and the claimant presented sufficient evidence of a work-related injury.
The court held that the claimant timely notified his employer, the employer waived objections to the independent medical examiner's fee by paying it without objection, and the JCC's decision on causation should be reconsidered with the examiner's testimony included.
[1] An employer waives objections to an independent medical examiner's testimony if the employer pays the examiner's fee without objection, even if the fee exceeds the maximu…
[2] An employee's notification of a back injury to an employer is considered timely as a matter of law under specific factual circumstances, despite a statutory reporting per…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“As a matter of law under the specific facts of this case, appellant timely notified his employer of his back injury.”
Establishes the court's finding on the timeliness of the injury report.
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Join FLexlaw to unlock all legal intelligenceAppellant Martin Perez-Ramirez sought workers' compensation for a back condition. The Judge of Compensation Claims (JCC) denied the claim, citing fail…
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PER CURIAM.
Appellant, Martin Perez-Ramirez, appeals a final order of the Judge of Compensation Claims (JCC) denying compensability of his back condition. The JCC found that the claim was barred due to appellant’s failure to report the injury within the thirty-day reporting period mandated by section 440.185(1), Florida Statutes (2000); excluded appellant’s independent medical examining physician’s testimony because the physician charged and collected in excess of the maximum allowable fee for an independent medical examination, for which exclusion the JCC relied on City of Riviera Beach v. Napier, 791 So. 2d 1160 (Fla. 1st DCA 2001); and, found that the evidence failed to prove that the work performed within the course and scope of employment was the major contributing cause of appellant’s back injury.
We disagree with all of these reasons for denial, and reverse and remand for further proceedings consistent with this opinion.
As a matter of law under the specific facts of this case, appellant timely notified his employer of his back injury. See Alfonso v. Mac Dinton’s Restaurant, 515 So. 2d 248, 246 (Fla. 1st DCA 1987).
Moreover, because appellees, Dexter Development and Associated Industries, paid without objection appellant’s independent medical examining physician’s fee, which the parties agreed was in excess of the maximum allowable fee under rules adopted by the Division of Workers’ Compensation, they waived their objection to that physician’s testimony.
Finally, as we have reversed the exclusion of appellant’s independent medical examining physician’s testimony, in which the physician opines that appellant’s industrial accident is the major contributing cause of appellant’s back pain and need for treatment, the JCC’s finding that appellant faded to prove that the work performed within the course and scope of employment was the major contributing cause of his back injury should be reconsidered in light of this additional evidence.
Reversed and remanded.
KAHN, WEBSTER and DAVIS, JJ., Concur.
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Camus v. Manatee Cnty. Sch. Bd. & Gallagher Bassett Servs., 923 So. 2d 1266 (Fla. 1st DCA 2006)…ingly, we reverse the JCC’s order of February 6, 2005, and remand to the JCC for reconsideration in light of Dr. McGarahan’s opinion relating to his observations during his September 21, 2004 evaluation of claimant. See Perez-Ramirez v. Dexter Dev., 852 So. 2d 933, 934 (Fla. 1st DCA 2003) (holding, “as we have reversed the exclusion of claimant’s independent medical examining physician’s testimony, in which the physician opines that [claimant’s] industrial accident is the major contributing cause of [claimant…
Authorities Cited
- City OF Riviera Beach & Gallagher Bassett Serv., Inc. v. Napier, 791 So. 2d 1160 (Fla. 1st DCA 2001)
- Westinghouse Elec. Corp. v. Shafer & Miller, Inc., 515 So. 2d 248 (Fla. 3d DCA 1987)