June 2008

Sometimes it is difficult to get final authority upon settlement, especially when mediation or negotiations run late in the day.  Its 5:30 on a Friday and you just need $5000 in additional authority to get this sucker done.  So what do you do?  You agree, in the mediation agreement, to settle the claim at the agreed upon amount on a contingent basis.  You also offer the Claimant 20 days so your supervisor or the insured can get back to you in time. 

But, is this a “meeting of the minds?”  In other words, do the parties have a binding settlement when the E/C is only agreeing on a contingent basis?

According to the First DCA, no, they do not.


I don’t know if the pending Emma Murray appeal will have future effect on this, but the First DCA, in Guckenberg v. Seminole County, affirmed section 440.34(3), specifically the portion that awards attorney fees and costs to any prevailing party. 

440.34(3) states:

If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees.


In what is certainly a blow to toxic exposure cases, the First DCA, in Matrix Employee Leasing/FCIC v. Pierce, reversed a JCC order finding Claimant’s chronic obstructive pulminary disease condition to be compensable.  Claimant relied on § 440.02(1) to prove her claim.  The Court found no competent, substantial evidence to support the JCC’s finding that clear and convincing evidence established that claimant’s disease was caused by exposure to specific harmful chemicals at the levels to which she was exposed


What is key in the Pierce decision is that the E/C presented no evidence at Final Hearing and Claimant proffered expert testimony from her IME.  In essence, the Court limited what can be acceptable evidence in just trying to prove a prima facie case.


We all know that it is unconstitutional to deny death benefits to the beneficiaries of “aliens not residents (or about to become nonresidents) of the United States or Canada.”  The Florida Supreme Court declared the s. 440.16(7) unconstitutional.  See Deyala v. Florida Farm Bureau, 543 So.2d 204. 

But, what about illegal aliens injured in compensable accidents who previously provided false social security information to secure work, or those illegals who return to their home country while treating for a compensable injury in Florida?  According to the First DCA in two recent decisions, the immigration status of the claimant doesn’t really matter.