Pinnacle Benefits, Inc. v. Alby, 1D04-5623.

Citation913 So.2d 756
Decision Date07 November 2005
Docket NumberNo. 1D04-5623.,1D04-5623.
PartiesPINNACLE BENEFITS, INC., and Craftwork, Inc., Appellants, v. August ALBY, Appellee.
CourtUnited States State Supreme Court of Florida

Theodore N. Goldstein and Michael E. McCabe of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellants.

Matthew E. Romanik and Frank R. Johnson of Johnson, Gilbert & Romanik, P.A., Ormond Beach, for Appellee.

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. Mikolajczak, 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...

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10 cases
  • Westphal v. City of St. Petersburg
    • United States
    • Court of Appeal of Florida (US)
    • 23 Septiembre 2013
    ...Westphal would be permanently and totally disabled upon reaching MMI is immaterial to our review. See Pinnacle Benefits, Inc. v. Alby, 913 So.2d 756, 757 (Fla. 1st DCA 2005) (explaining that findings in a compensation order will be upheld if supported by any competent substantial evidence a......
  • City of Bartow v. Flores
    • United States
    • Court of Appeal of Florida (US)
    • 29 Mayo 2020
    ...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). However, to the extent the issues raised on appeal concern statutory construction, a question of law is presente......
  • Andrews v. McKim
    • United States
    • Court of Appeal of Florida (US)
    • 1 Febrero 2023
    ...... benefits under Chapter 440, Florida Statutes, were initiated. ... Flores, 301 So.3d at 1094 (quoting Pinnacle. Benefits, Inc. v. Alby, 913 So.2d 756, 757 (Fla. 1st ......
  • Andrews v. McKim
    • United States
    • Court of Appeal of Florida (US)
    • 1 Febrero 2023
    ...... benefits under Chapter 440, Florida Statutes, were initiated. ... Flores, 301 So.3d at 1094 (quoting Pinnacle. Benefits, Inc. v. Alby, 913 So.2d 756, 757 (Fla. 1st ......
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