Massey Blog
Attorney fees on value of future Permanent Total Disability benefits
Thursday, 20 January 2011
In the case of Interstate Brands Corp./Broadspire v. Edwin Blanco, released November 30, 2010, the Employer/Carrier appealed an order awarding attorney's fees and costs. The case involved an accident date of May 5, 1997 for which the claimant was accepted as PTD in 1999. On January 10, 2008, PTD benefits and supplemental benefits inexplicably stopped. The adjuster would later testify that this was "merely an oversight" that was the result of an internal transfer of the file from one adjuster to another. A PFB was filed on March 25, 2008 but no response was filed by the E/C. Instead, on May 7, 2008, the E/C paid a lump sum representing past PTD and supplemental benefits with penalties and interest.
Costs awarded to the Employer/Carrier
Tuesday, 11 January 2011
The Employer/Carrier was awarded costs as the prevailing party following the JCC's denial of a 2008 PFB in the case of Oscar Hernandez v. Manatee County Government/Commercial Risk Management, Inc.(opinion released December 8, 2010). Some of the costs were for depositions taken prior to the filing of the 2008 PFB which sought PTD benefits. Depositions in this case were taken both prior to any PFB's being filed and after the claimant's filing of a 2007 PFB. Following a hearing on the 2007 PFB the JCC found that the E/C was not the prevailing party and was not entitled to recover the costs of the depositions taken to that point. These same depositions were then used to defend the 2008 PFB. The claimant then argued that the E/C was barred from recovering the costs of the depositions following the resolution of the 2008 PFB by the doctrine of res judicatasince the E/C was already denied recovery. The First DCA upheld the JCC's decision to award these costs to the E/C. Both the JCC and the appellate court appear to applaud the E/C's questioning in the depositions that included "foresight in covering the issues raised in the 2007 PFB, as well as issues that could, based on the facts in this case, foreseeably arise in the future". This allowed the depositions to be used to successfully defend against the issues raised in the 2008 PFB resulting the E/C's right to recover costs as the prevailing party.
Municipalities Planning Level and Operational Level functions
Thursday, 21 October 2010
In a rather lengthy opinion released on October 20, 2010 the appellate court addressed a city's liability for an accident that occurred at an intersection with a malfunctioning traffic light. The light normally controls the traffic on roads with up to 6 lanes going in one direction. However, on the day of the accident, the light was flashing yellow for east-west traffic and was flashing red for north-south traffic. The plaintiff proceeded through the intersection on the flashing yellow street and struck a car that went through the flashing red light. Having settled with the driver of the car going through the flashing red light, the plaintiff sued the City in the case of Marion v. City of Boca Raton.
Cicumstances affecting late workers' compensation payments
Thursday, 21 October 2010
In Jones v. City of St. Petersburg the claimant appealed an order denying penalties and interest on PTD and supplemental benefits where the employer paid the benefits retroactive to an earlier date. In March 2009 the employer learned that the claimant was placed at MMI on March 29, 2009. The adjuster testified that the employer received notice of a 34% PIR as of May 6, 2009 on May 13, 2009. The employer received nothing else until July 23, 2009 which was the day the claimant was accepted as PTD retroactive to May 6, 2009. No penalty or interest payments were included in the lump sum check mailed to the claimant. A PFB was filed on September 1, 2009 seeking PTD and supplemental benefits from March 29, 2009, plus penalties and interest. On September 15, 2009 the employer paid the PTD benefits retroactive to March 29, 2009.
Massey, Coican, Schuster & King, L.L.C
Workers' Compensation Defense and Insurance Litigation Defense Law Firm
Phone: (954) 527-3919 | Fax: (954) 527-3920
