PINNACLE BENEFITS, INC., AND CRAFTWORK, INC., APPELLANTS,
v.
AUGUST ALBY, APPELLEE
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Pinnacle Benefits and Craftwork appealed a workers' compensation order awarding benefits to August Alby for an industrial accident on January 9, 2001, resulting in neck, shoulder, and arm injuries. The court affirmed, rejecting the employers' fraud defense and upholding the judge's acceptance of the expert medical advisor's opinion over conflicting treating physician opinions.
The court affirmed the judge's denial of the fraud defense because the statutory provisions require a showing of knowing or intentional activity, and the judge's factual findings were supported by competent substantial evidence. The court also upheld the judge's acceptance of the expert medical advisor's opinions as presumptively correct under Florida Statute section 440.13(9)(c), absent clear and convincing evidence to the contrary.
[1] A fraud defense in workers' compensation cases requires a showing of knowing or intentional activity by the claimant.
[2] Whether a claimant engaged in knowing or intentional activity triggering a fraud defense is a question of fact.
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Join FLexlaw to unlock all legal intelligence“The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.”
Establishes the presumptive correctness standard for expert medical advisor opinions under Florida Statute section 440.13(9)(c)
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Join FLexlaw to unlock all legal intelligenceOn January 9, 2001, August Alby suffered an industrial accident resulting in injuries to his neck, right shoulder, and right arm. The accident was det…
The full statement of facts, procedural history, and disposition for this case are member content.
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BROWNING, J.
Employer/Carrier (E/C) appeal a final order of the Judge of Compensation Claims '(JCC) determining that the claimant/appellee, August Alby, suffered an industrial accident on January 9, 2001, which resulted in injuries to Alby’s neck, right shoulder, and right arm; that this industrial accident is the major contributing cause of Alby’s, neck condition (including cervical myelopathy) and the need for cervical surgery; that the neck condition and need for cervical surgery are compensable;, and that Alby is entitled to costs and attorney’s fees. We, affirm,
E/C contend, first, that the JCC erred by failing to deny benefits to Alby pursuant to the so-called fraud defense. See §§ 440.09(4) & 440.105(4)(b), Fla. Stat. (2000).
By their express wording, these two statutory provisions require a showing of “knowing” or “intentional” activity. See Isaac v. Green Iguana, Inc., 871 So. 2d 1004, 1006 (Fla. 1st DCA 2004); CDL v. Corea, 867. So. 2d 639, 640 (Fla. 1st DCA 2004).
Whether or not a claimant has knowingly or intentionally engaged in any acts or omissions that would trigger this defense is a question of fact. See Medina v. Gulf Coast Linen Servs., 825 So. 2d 1018, 1021 (Fla. 1st DCA 2002).
The factual findings in a compensation order will be upheld if any competent substantial evidence supports the JCC’s decision. See Chavarria v. Selugal Clothing, Inc., 840 So. 2d 1071, 1076 & n. 3 (Fla. 1st DCA 2003). (en banc).
Because some competent substantial evidence supports the JCC’s denial of the “fraud” defense, we shall not disturb this ruling. It matters not that other persuasive evidence, if accepted by the JCC, might, have supported a contrary ruling. See Fla. Mining & Materials v. Mobley, 649 So. 2d. 934 (Fla. 1st DCA 1995). Second, E/C argue that the JCC erred in accepting the opinions of the expert medical advisor (EMA), Dr. Mikolajc-zak, over the opinions of the authorized treating physicians.
Pursuant to section 440.13(9)(c), Florida Statutes (2000), the JCC appointed an EMA due to the “disagreement in the opinions of the health care providers.” Under the plain terms of this statutory subsection, “[t]he opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.” See Walgreen Co. v. Carver, 770 So. 2d 172, 174 (Fla. 1st DCA 2000). An EMA’s opinion has a “nearly conclusive effect.” Pierre v. Handi Van, Inc., 717 So. 2d 1115, 1117 (Fla. 1st DCA 1998).
In a workers’ compensation case, the JCC determines the credibility of witnesses, including the claimant. See Prather v. Process Sys., 867 So. 2d 479, 480 (Fla. 1st DCA 2004).
In his very detailed final order, the JCC — who had the opportunity to observe first-hand claimant Alby’s candor and demeanor — found his testimony to be credible and truthful. To the extent that some discrepancies appeared between Alby’s deposition and live testimony, the JCC correctly deemed them immaterial or inconsequential. Again assessing witness credibility, the JCC found the EMA’s medical opinions to be credible and reliable. Given E/C’s concerns that the EMA might not initially have received Alby’s complete medical history and did not review the surveillance tapes of Alby, we agree with the JCC’s conclusion that the extensive questioning of the EMA regarding Alby’s medical records and the surveillance tapes eliminated any confusion or uncertainty as to what the EMA knew about Alby’s medical conditions, and whether the industrial accident is the major contributing cause of Alby’s cervical condition and need for surgery.
The record supports the JCC’s finding the EMA’s medical opinions to be presumptively correct, absent clear and convincing evidence to the contrary. See § 440.13(9)(c). As. to E/C’s argument that the EMA’s report was untimely completed, see section 440.13(9)(d), Florida Statutes (2000), we find no prejudice arising therefrom. Because the JCC properly rejected the “fraud” defense and exercised his authority in accepting the EMA’s opinions over those of some other physicians, we AFFIRM the final order. DAVIS and LEWIS, JJ., concur.
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Agustin Arreola v. Admin. Concepts & S. Eagle Ins. Co., 17 So. 3d 792 (Fla. 1st DCA 2009)…ial evidence. Paulson v. Dixie County Emergency Med. Servs., 936 So. 2d 1109, 1110 (Fla. 1st DCA 2006). “It matters not that other persuasive evidence, if accepted by the JCC, might have supported a contrary ruling.” Pinnacle Benefits, Inc. v. Alby, 913 So. 2d 756, 757 (Fla. 1st DCA 2005). In deciding this issue, the JCC had to answer two questions. The first is whether Claimant made or caused to be made false, fraudulent or misleading statements. The second is whether the statement was intended by Claimant…1 / 2
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Jace Andrews v. McKim & Creed & Travelers Prop. Cas., 355 So. 3d 957 (Fla. 1st DCA 2023)…be upheld if supported by competent substantial evidence (CSE), regardless of whether ‘other persuasive evidence, if accepted by the JCC, might have supported a contrary ruling.’” Flores, 301 So. 3d at 1094 (quoting Pinnacle Benefits, Inc. v. Alby, 913 So. 2d 756, 757 (Fla. 1st DCA 2005)). However, to the extent an issue of statutory construction is raised on appeal, a question of law is presented, making this Court’s review de novo. Id. (citing Palm Beach Cnty. Sch. Dist. v. Ferrer, 990 So. 2d 13, 14 (Fla.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- A.M.V. v. State, 840 So. 2d 1071 (Fla. 3d DCA 2003)
- Pierre v. Handi VAN, Inc., 717 So. 2d 1115 (Fla. 1st DCA 1998)
- Mariana Medina v. Gulf Coast Linen Servs. & Commercial Risk, 825 So. 2d 1018 (Fla. 1st DCA 2002)
- Isaac v. Green Iguana, Inc., 871 So. 2d 1004 (Fla. 1st DCA 2004)
- Fla. Mining & Materials v. Mobley, 649 So. 2d 934 (Fla. 1st DCA 1995)
- Walgreen Co. & Kemper Ins. Co. v. Carver, 770 So. 2d 172 (Fla. 1st DCA 2000)
- Modesto Dilme, Jr. v. SBP Serv., Inc., 649 So. 2d 934 (Fla. 1st DCA 1995)
- Prather v. Process Sys., 867 So. 2d 479 (Fla. 1st DCA 2004)