Polston v. Hurricane Island Outward Bound

Decision Date13 February 2006
Docket NumberNo. 1D04-5457.,1D04-5457.
PartiesMarilyn POLSTON, Appellant, v. HURRICANE ISLAND OUTWARD BOUND and Zenith Insurance Company, Appellees.
CourtFlorida District Court of Appeals

Keith A. Mann, Sarasota; and Bill McCabe, Longwood, for appellant.

Stephen S. Berlin, Zenith Insurance Staff Counsel, Zenith Insurance Company, Sarasota; and Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for appellees.

PER CURIAM.

Marilyn Polston challenges an order entered by the Judge of Compensation Claims (JCC) finding that she violated section 440.105(4)(b)(2), Florida Statutes. We reverse and remand.

Polston filed a petition for benefits, but subsequently voluntarily dismissed the petition for benefits. The employer/carrier (E/C) filed a response asserting that they did not agree to a dismissal and they requested the JCC to determine whether Polston knowingly made false, fraudulent or misleading statements for the purpose of securing workers' compensation benefits in violation of section 440.105. The JCC determined she had no jurisdiction once Polston voluntarily dismissed the petition for benefits.

The E/C then filed a petition for benefits, requesting "a determination pursuant to Fla. Stat. 440.09(4) whether the Employee/Claimant has knowingly made false, fraudulent or misleading oral or written statements for the purposes of securing workers' compensation benefits in violation of Fla. Stat. 440.105(4)(b)." Polston filed a motion to dismiss the petition, in which she argued the JCC had no jurisdiction. This motion was denied. After a final hearing, the JCC issued an order finding Polston had violated section 440.105(4)(b)(2), and was not entitled to compensation or benefits pursuant to section 440.09(4).

In Simpson v. American Custom Interiors, 911 So.2d 794 (Fla. 1st DCA 2004), Simpson filed a petition for benefits seeking indemnity benefits and authorization for surgery. The employer/carrier had previously accepted the injury as compensable, but refused to authorize surgery. Shortly before the hearing on his petition began, Simpson withdrew the claim for indemnity benefits, leaving only the request for surgery to be decided. The JCC found he lacked jurisdiction to consider the issue of authorization for surgery because Simpson had not exhausted the managed care grievance procedures. The JCC went on, however, to rule on the E/C's affirmative defense of misrepresentation under section 440.105(4)(b). The JCC found...

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3 cases
  • Sims Crane & Equip. Co. v. Preciado
    • United States
    • Florida District Court of Appeals
    • 12 Octubre 2022
    ...Rippy, 67 So.3d at 1123 (holding jurisdiction of JCC is invoked with filing of PFB and the E/C has no statutory right to file PFB); Polston, 920 So.2d at 767; Simpson v. Am. Custom Interiors, 911 So.2d 794, (Fla. 1st DCA 2004) (holding JCC lacked jurisdiction to rule on misrepresentation de......
  • Hamm v. Pmi Emp. Leasing & Comprehensive Ins. Solutions, 1D13–4895.
    • United States
    • Florida District Court of Appeals
    • 7 Abril 2014
    ...of JCC is invoked with filing of PFB and employer/carrier has no statutory right to file PFB); see also Polston v. Hurricane Island Outward Bound, 920 So.2d 766, 767 (Fla. 1st DCA 2006); Simpson v. Am. Custom Interiors, 911 So.2d 794 (Fla. 1st DCA 2004). Similarly, the JCC here lacked juris......
  • Fla. Dep't of Transp. v. Rippy
    • United States
    • Florida District Court of Appeals
    • 18 Julio 2011
    ...appellate, the court should notice the defect and enter an appropriate order’ ” (citations omitted)). In Polston v. Hurricane Island Outward Bound, 920 So.2d 766 (Fla. 1st DCA 2006), this court reversed the JCC's finding she had jurisdiction to entertain the E/C's petition for benefits whic......

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