Foods v. Howard, CASE NO. 1D16-1789.
| Decision Date | 26 July 2017 |
| Docket Number | CASE NO. 1D16-1789. |
| Citation | 225 So.3d 898 |
| Parties | CAL–MAINE FOODS/BROADSPIRE, Appellant, v. Robert HOWARD, Appellee. |
| Court | Florida District Court of Appeals |
Christopher A. Thorne and Jennifer P. Killen of Thorne & Associates, P.A., Orlando, for Appellant.
Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A., for Appellee.
In this workers' compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) rejecting multiple defenses to compensability of a work accident and related benefits. As to the E/C's argument that the JCC erred in rejecting misrepresentation defenses, we agree and reverse. Accordingly, it is unnecessary to address the remaining issues on appeal.
On or about November 2, 2014, the Claimant was operating a front-end loader for the Employer. At a curve in the road, the brakes failed, and the Claimant jumped from the machine. Conflicting testimony exists as to whether the Claimant reported any injuries to the Employer. In August 2015, following termination by the Employer for reasons unrelated to the accident, the Claimant filed a Petition for Benefits (PFB) seeking payment of temporary total disability (TTD) or temporary partial disability (TPD) benefits, and authorization of a neurological/orthopedic physician to evaluate and treat his lower back symptoms.1 He listed the November 2, 2014, work accident as the basis for the injuries. In October 2015, the Claimant filed an Amended PFB requesting determination of compensability of the November 2, 2014, accident. The PFBs, both signed and attested by the Claimant as to accuracy, described the accident as follows:
CL WAS DRIVING A FRONT END LOADER THAT WAS HAVING MECHANICAL ISSUES. AS HE APPROACHED A BEND IN THE ROAD GOING TO A BRIDGE, HE LET OFF THE ACCELERATOR AND THE MACHINE STALLED. HIS STEERING AND BRAKES WENT OUT. BEFORE THE MACHINE WENT OVER THE SIDE OF THE ROAD, HE JUMPED. HE HIT THE TIRE, WHICH PUSHED HIS FACE INTO THE PAVEMENT AND THEN THE REAR TIRE HIT HIM IN THE HEAD.
During his first deposition in May 2015, the Claimant testified the injuries resulting from the work accident included a broken nose, orbital fractures, concussion with brain injury, and herniated discs of the neck and lower back. He requested surgery for facial fractures and treatment for his neck and back. The Claimant described that when he jumped from the machine, he hit his left shoulder on the rear left tire, which spun him around causing him to strike his face on asphalt. He described injuries specifically to the right eye and socket, as well as bleeding scrapes over his left eye. Seven months later, in his second deposition, the Claimant gave sworn testimony that his injuries from the accident included the eye socket, nose, neck, middle and lower back. However, he advised that as of the second deposition, his nose and eye injuries had resolved. He complained of constant neck pain.
The Claimant did not seek immediate medical treatment, but rather waited one month after his termination (and two months after the November 2014 work accident) to see a doctor. Initial medical treatment was received on January 22, 2015, at Shands Hospital. The Claimant reported a head injury /pain with frustrated memory and headaches due to being hit in the head with a baseball bat "eight days prior." At his initial deposition, when confronted with the Shands records, the Claimant testified his description of the baseball bat incident was false and contrived. He asserted he later "corrected" this false account and told Shands' staff the injuries actually occurred from an accident at work. He allegedly made the misrepresentation due to his belief he would not receive medical treatment if he reported a work-related accident. No "correction" was documented in the medical records.
On February 4, 2015, Claimant proceeded to the Wesley Chapel Hospital Emergency Room, where he was seen for left-sided facial pain, advising he received a facial fracture "one month earlier." He requested pain medications and denied back pain or headaches. He did not report a work accident.
After the Claimant's filing of a PFB in August 2015, the E/C scheduled an IME with Dr. Thomas Delgado, a neurosurgeon. The Claimant described to Dr. Delgado that he suffered injuries to his neck, face, and lower back as a result of the November 2, 2014, accident. The Claimant also completed patient intake/history forms at Dr. Delgado's office. On the forms, the Claimant specifically denied any back pain, injuries, or sciatica before the work accident. The Claimant did not disclose to Dr. Delgado that he previously reported a "baseball bat" incident to Shands as the cause of his head and facial injuries. Dr. Delgado, after reviewing the Shands medical records (provided to him by the E/C), confronted the Claimant regarding his report of being struck in the head with a baseball bat. Per Dr. Delgado, the Claimant responded that he "wasn't sure because he was kind of foggy when that happened." At deposition, Dr. Delgado further testified that, contrary to the Claimant's responses on the patient intake and history forms, medical records documented that the Claimant did, in fact, have a prior history of chronic back pain with treatment in 2006–2007, and lumbar and neck pain following an automobile accident in 1997.
The Claimant was evaluated by Dr. Robert Martinez, a neurologist, in March 2015. He complained of neck, middle and lower back pain, along with confusion as a result of the work accident. Likewise, the Claimant denied any history of neck or back pain, or similar injuries before the work accident. He did not disclose the earlier report of being struck in the head with a baseball bat.
The Claimant obtained an Independant Medical Exam from Dr. Jorge Inga, a neurosurgeon, on November 11, 2015. He complained of pain radiating down his right leg, lower back, cervical spine, shoulder and right facial pain. The Claimant described the origin of his symptoms as the November 2, 2014, work accident. He did not address the baseball bat incident.
In preparation for hearing, the E/C filed medical records in compliance with section 440.29(4), Florida Statutes. The admissible medical records documented the Claimant had a history of similar medical complaints and treatment prior to the work accident. The records documented: lower back injuries 1997 after an automobile accident; chronic back pain in 2006–2007; medical care and diagnostic studies in 2012 for constant neck pain only relieved by pain medications; injuries from a motorcycle accident, which required ongoing medical treatment for twelve years; and a previous recommendation for cervical surgery. In the pretrial stipulations, the Claimant listed the following physical conditions as related to the work accident: "face injuries, concussion w/ brain injury, back and neck." However, at the final hearing, the Claimant announced he was seeking compensability of the lower back injuries only, thus dropping other claims relating to facial and neck injuries, and concussion with brain injury.
During cross-examination at the merits hearing, the Claimant was questioned regarding his prior deposition testimony in which he described substantial injuries to his face and head following the November 2, 2014, work accident. The Claimant admitted that his prior statement at Shands of being struck in the head and face by a baseball bat was "not true." Although the JCC determined the Claimant had committed multiple misrepresentations, she ultimately declined to terminate the Claimant's entitlement to workers' compensation benefits. Specifically, the JCC held the misrepresentations were moot and not committed for the "purpose of obtaining workers' compensation benefits." We disagree and reverse.
While this Court is deferential to the broad fact-finding powers of a JCC, such power is not without constraints. Fritz v. Courtyard Marriott, 592 So.2d 1167, 1169 (Fla. 1st DCA 1992). A JCC's findings must be in accordance with the requirements of chapter 440 and be supported by competent, substantial evidence (CSE). Quiroz v. Health Cent. Hosp., 929 So.2d 563, 565 (Fla. 1st DCA 2006).
A JCC's factual findings will be upheld if any CSE supports the JCC's decision, regardless of whether "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) (emphasis in original). However, to the extent the issues raised on appeal concern statutory construction, a question of law is presented, and our review is de novo. Palm Beach Cty. Sch. Dist. v. Ferrer, 990 So.2d 13, 14 (Fla. 1st DCA 2008) ; Matrix Emp. Leasing v. Hernandez, 975 So.2d 1217, 1218 (Fla. 1st DCA 2008) ; Mylock v. Champion Int'l, 906 So.2d 363, 365 (Fla. 1st DCA 2005).
Sections 440.09(4) and 440.105, Florida Statutes, are often referred to as the mechanisms that created the "fraud defense." This "misnomer appears to have narrowed the application of the sanction beyond that intended by the legislature." Village Apartments v. Hernandez, 856 So.2d 1140, 1141 (Fla. 1st DCA 2003). Not all prohibited acts in section 440.105 entail a "fraud" element. See § 440.105(4)(b) 2.–3., Fla. Stat. In interpreting a statute, "full effect must be given to the language selected by the legislature." Hernandez, 856 So.2d at 1141. Accordingly, per section 440.09(4), the commission of "any" act of an employee prohibited by section 440.105 results in forfeiture of benefits, not just those statutorily designated as "fraudulent."2 This Court has previously emphasized that the 2003 Amendments to section 440.09(4)(a), adding the phrase "or any criminal act," broadened the subsection to cover not only acts described in section 440.105, but also other criminal acts, as long as "all of those acts are done for the purpose of securing workers' compensation benefits."...
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