Standard of Proof


Belly aching.  Exaggerating.  Symptom magnification.  We’ve all heard injured workers complaining more about their pain than the objective findings reveal, especially if the E/C possesses successful surviellance that shows otherwise.  But, is this tantamount to fraud?  

According to the First DCA, no it is not. (more…)

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It is one thing to blog about the First DCA decisions regarding W/C from the cozy confines of my desk.  It is quite another to actually pack up your self-proclaimed “analytical skills” and take them to Tallahassee to put them to the test in front of an appellate panel.  Yesterday, I had the opportunity to do such in my very first appeal–and oral argument–in front of the Court. 

Representing the appellant, Yaska Martinez Inc. and Unisource, I was attempting to reverse the JCC’s opinion in awarding Temporary Partial disability benefits to the claimant, Mr. Oscar Chaverri.   The case number is 1D08-1724.  You can view the docket here(more…)

As we in the Florida Workers’ Comp world breathlessly await the Emma Murray decision, and the Supreme Court’s (likely) liberal interpretation of the attorney fee provision, the First DCA keeps ratcheting up their conservative views of Chapter 440.  (See my previous posts here, here and here.) 

This time, the lower appellate court delivers an opinion that focuses on the principle of major contributing cause, section 440.09, interpreting it through a very narrow prism.

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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.

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