It was over 18 months ago when I wrote about the Diuejeste v. Dodd Plumbing decision.  My headline was “Belly aching does not equal fraud.” 

Well, according to a new First DCA case, belly aching is fraud if Claimant does the belly aching to the Employer/Carrier’s IME.  Be sure to print this one out as it is very favorable to E/C’s and will be useful when preparing your IME’s in the future.

More after the jump. (more…)

If you’ve been reading this blog, you know my feelings about the fraud defense.  It is a helpful tool in an E/C’s assortment of defense strategies, but it should be used after thoughtful deliberations.  The First DCA has limited the definition of fraud in hopes to curb the rampant use at the trial court level.  Yet, the Court refused to apply a reverse penalty to E/C’s when they commit fraud.

Now, it appears there is a penalty for E/C’s who use the fraud defense and lose at trial.


In my last blog entry, I wrote about whether the E/C’s right to tax costs is enforceable.  The problem being that chapter 440 provides no relief, in the form of rule nisi, for an E/C to enforce an order to tax costs against claimants.  My position was that it was unlikely that the Legislature would create a right to tax costs for E/C’s but not give them the power to enforce through rule nisi.  In fact, I wrote the following:

After all, the Florida Supreme Court held in Emma Murray that “a statute will not be construed in such a way that it renders meaningless or absurd any other statutory provision.”  By following the argument of these Claimant attorneys, the First DCA would be rendering s. 440.34(3) meaningless.

Well, it looks like I have to eat my words.  The First DCA just ruled in a case based on the theory that if the Legislature wanted to put something in the statute, then they would’ve written it in.   Let’s analyze it. (more…)

The First DCA brings us a pair of opinions that further support the notion that the Court sees little to no difference between illegal aliens and naturalized citizens.  While in Fact Track Framing v. Caraballo, they opened a door to the possibility of shutting down illegal aliens claims by holding that a Claimant who does not report his income to the Internal Revenue Service has an AWW of $0.00, the Court now clarifies its position and offer illegal aliens a solution.


This is a quick post but an important one.  It is necessary to understand that despite Claimant completing the standard mileage form she is not automatically entitled to reimbursement.  A Claimant must still prove to the JCC that entitlement is warranted. (more…)

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…)

Wow.  This newest First DCA decision is a doozy, one that alot of us on the defense side have argued-to no avail-for a long time.  That is until now. 

In Fast Track Framing v. Marando Homes, the Court found that if a Claimant is paid cash under the table, and does not report those wages to the IRS as taxable income, the money will not be counted as “wages” and therefore cannot be calculated in Claimant’s average weekly wage (AWW).  The AWW is used to determine how much Claimant is paid in wage loss benefits when she is taken off work.   So, if a Claimant is earning unreported cash, then his AWW is $0.00. 


If there is one aspect in defending Workers’ Compensation claims that many Employer/Carriers misinterpret is video surveillance.  It is a powerful tool in litigation, but should be applied delicately, lest it be barred from trial by a judgefor discovery violations.  Let me cite as an example one of my cases.

Currently, I am working on the defense of a claim where we procured very effective surveillance.  Prior to that, Claimant alleged extreme pain in both arms and even underwent the implantation of a dorsal column stimulator in his neck (a severe procedure to say the least).   He testified at deposition that his pain in his arms is so great he cannot even shake hands or do simple household chores like yard work.

Of course, video surveillance revealed otherwise. . .


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.