STATE OF FLORIDADIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF THE JUDGES OF COMPENSATION CLAIMSTAMPA DISTRICT OFFICE

Norge Casanas,Employee /Claimant,

vs.

Costex Tractor Parts /AmTrust NorthAmerica of Florida,

Employer /Carrier /Servicing Agent./

OJCC Case No. 15- 003228RLY

Accident date: 10/14/2014

Judge: Rita L. Young

FINAL COMPENSATION ORDER

CLAIMS:Payment of Prescribed medication by Dr. SalamonAuthorization of a return appointment to Dr. Garcia - GrandaAuthorization of medication per prescription of Dr. Garcia - GrandaReinstatement of Benefits and Denial of E/C fraud defenseCosts and Attorney's Fees

CLAIMANT AFFIRMATIVE DEFENSESNo fraudE/C waived its right to assist when defense was mature at time of prior proceeding and thus E/Cright to assert same defense is vague and barred by including waiver, estoppel, and waiver andestoppel of defenses of medical necessity and major contributing cause, 60Q- 6.113(2), resjudicata, abandonment, laches, accord and satisfaction, and due process

DEFENSES:All benefits are denied as the Claimant violated the misrepresentation provisions of Fla. Stat.Section 440.105(4) and 440.09(4).Attorney's fees and costs are not due or owing

JUDICIAL EXHIBITS:1. Petition for Benefits filed 5/31/19 DN 2432. Petition for Benefits filed 6/5/19 DN 2503. Petition for Benefits filed 7/1/19 DN 2544. Petition for Benefits filed 3/27/19 DN 2265. Uniform Pretrial Stipulation filed 7/3/19 DN 256

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6. Uniform Pretrial Stipulation filed 7/12/19 DN 2597. Uniform Pretrial Stipulation filed 11/10/17 DN 1808. Uniform Pretrial Stipulation filed 11/13/17 DN 1819. Order Approving Uniform Pre -Trial Stipulation entered 11/13/17 DN 18210. Notice of Voluntary Dismissal of Petition for Benefits filed 3/1/18 DN 19011. Stipulation on Attorney's Fees and Costs of Prior Claimant's Counsel filed 8/22/18 DN

19212. Order on Stipulation on Carrier Paid Attorney Fee entered 8/23/18 DN 19313. Order Approving Stipulation on Carrier Paid Attorney Fee entered 8/24/19 DN 19514. Petition for Benefits filed 10/23/18 DN 19915. Response to Petition for Benefits filed 11/13/18 DN 20516. Claimant's Voluntary Dismissal Without Prejudice filed 12/13/18 DN 21017. Claimant Dismissal of Petition 12/23/18 as to E/C paid fees and costs filed 1/11/19 DN

21218. Order Denying Motion to Strike E /C's Untimely Notice of Fraud Defense entered 2/7/19

DN 21519. Order Denying Claimant's Motion to Strike E /C's Untimely Notice of Fraud Defense

entered 2/20/19 DN 22020. Claimant's Voluntary Dismissal of Petition for Benefits dated 5/16/19 filed 6/4/19 DN

24721. Claimant's Notice of Intent to Request JCC Take Judicial Notice of OJCC Docket

Including Entries DN 182, 190, 192, 193, 194, 198, 199, 200, 205, 211, 214, 216, 217,and 224 filed 7/8/19 DN 258

22. Claimant's Pretrial Clarification upon Seeing E/C Portion filed 7/12/19 DN 26123. Order on Motion to Strike Claimant's Notice of Filing Purpose of Fraud E -Mail as Party

Admission entered 7/16/19 DN 26324. E /C's Amendment to Pretrial Stipulation filed 9/16/19 DN 27025. Claimant's Pretrial Clarification upon Seeing E/C Portion filed 7/29/19 DN 26426. Claimant's Memorandum of Law (for argument purposes only) filed 10/14/19 DN 30527. E /C's Memorandum of Law (for argument purposes only) filed 10/16/19 DN 322

CLAIMANT FILED A NOTICE OF INTENT FOR THE JCC TO TAKE JUDICIAL NOTICEOF THE OJCC DOCKET TO INCLUDE THE FOLLOWING:

1. Order Approving Uniform Pre -Trial Stipulation entered 11/13/17 DN 1822. Notice of Voluntary Dismissal of Petitions for Benefits filed 3/1/18 DN 1903. Stipulation on Attorney's Fees and Costs of Prior Claimant's Counsel filed 8/22/18 DN

1924. Order on Stipulation on Carrier Paid Attorney Fee entered 8/23/18 DN 1935. Stipulation for Attorney's Fees and Costs of Prior Claimant's Counsel filed 8/23/18 DN

1946. Order Approving Stipulation on Carrier Paid Attorney Fee entered 8/24/19 DN 1957. Claimant's Notice of Filing Dr. Garcia - Granda Plan filed 10/16/18 DN 1988. Petition for Benefits filed 10/23/18 DN 199

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9. Medical Exempt Records attachment to PFB filed 10/23/18 DN 20010. Response to Petition for Benefits filed 11/13/18 DN 20511. Claimant's Filing of Private Mediation Report filed 12/13/18 DN 21112. Claimant's Moves to Strike E/C Untimely Notice of Fraud Defense and for Fees and

Costs for Defending Fraud Claim filed 2/6/19 DN 21413. Claimant's Notice of Filing Script of Dr. Garcia - Granda filed 2/12/19 DN 21614. Claimant's Notice of Filing Script of Dr. Salamon filed 2/12/19 DN 21615. Claimant's Notice of Filing Script of Dr. Salamon filed 2/12/19 DN 21716. Claimant's Notice of Filing Dr. Salamon Treatment Plan filed 3/20/19 DN 224

The undersigned takes judicial notice of the above docket filings with no objection by E /C.

CLAIMANT EXHIBITS:1. Medical Records of Dr. Garcia - Granda filed 5/16/19 DN 2412. Order Granting Motion to Admit Medical Records of Dr. Garcia - Granda entered 6/4/19

DN 2483. Motion to Admit Medical Records of Authorized Provider Dr. Salamon filed 10/8/19 DN 2764. Order Admitting Medical Records in Evidence filed 10/8/19 DN 2775. Claimant's Notice of Filing Purpose of Fraud E -Mail as Party Admission filed 10/10/19

DN 29016. Deposition Transcript of Adjuster Crystal Cirminiello filed 10/10/19 DN 2937. Adjuster Payout Exhibit filed 10/14/19 DN 3038. Adjuster Payout Exhibit filed 10/14/19 DN 304

JOINT EXHIBITS:1. Deposition of Dr. Joel Salamon taken 10/17/17 filed 11/8/17 DN 1782. Deposition of Dr. Joel Salamon taken 11/30/17 filed 10/10/19 DN 2923. Deposition of Dr. Franklin Reyes taken 10/5/17 filed 11/29/17 DN 1834. Deposition of Dr. Franklin Reyes taken 3/8/18 filed 10/10/19 DN 2945. Claimant Deposition taken 6/3/19 filed 10/10/19 DN 298

EMPLOYER/CARRIER EXHIBITS:

1. Deposition of Ricardo Garcia, Surveillance Investigator filed 10/10/19 DN 29522. Deposition of Michael Mollo, Surveillance Investigator filed 10/10/19 DN 29633. Deposition of Jesus Gonzalez filed 10/10/19 DN 2974

1 E/C objected as to relevance. Objection was overruled and email was admitted and after hearing all evidence theundersigned finds the email does not establish any affirmative defense of Claimant.2 Claimant withdrew objections to surveillance shown during Claimant's direct testimony and the undersigned basedfindings on only the surveillance presented during Claimant's direct testimony as Claimant testified that thesurveillance accurately depicted his activities. The objection is overruled as moot.3 See footnote 2.4 See foot note 2.

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4. Deposition of Charles Parker, Records Custodian for Ethos filed 10/15/19 DN 30855. Notice of Defense filed 1/28/19 DN 2136. Surveillance Video Link filed 10/15/19 DN 32167. Surveillance CD Received by Office of Judges of Compensation Claims by UPS on

10/16/197

LIVE WITNESSES:1. Pat Gutierrez2. Nancy Sansone3. Norge Casanas

STIPULATIONS:The undersigned has jurisdiction of the parties and the subject matter.Venue: Dade County, Florida.The Employer was properly insured with Worker's Compensation coverage at the time of theaccident/claim.Notice of Final Hearing was timely given to the parties.The Claims are not governed by a managed care arrangement.

PRELIMINARY ISSUES:

The Claimant filed the following Motions in Limine requesting to be heard prior to the beginningof final merits hearing:

1. Claimant's Motion in Limine to Strike E/C Misrepresentation Allegations Based uponTruth and Amended Motion to Strike E/C Misrepresentation Allegations Based uponTruth (DN 280) and Amended Motion In Limine to Strike E/C MisrepresentationAllegations Based upon Truth (DN 302):The undersigned finds this is an issue that is to be determined from the totality of theevidence to be presented at final hearing on the merits and the undersigned reservedruling on this motion until final merits hearing. After hearing the undersigned denies thismotion.

2. Claimant's Motion in Limine to Strike Records Custodian and Surveillance Films asInadmissible for E/C Misrepresentation Defense to Be Heard at Final Hearing (DN 281):The Claimant moved to strike the records custodian and surveillance films asinadmissible based on: "not competent records custodian, hearsay, authentication, chainof custody, inaccurate copy, not best evidence, predicate, foundation, best evidence to

5 See footnote 2.6 See footnote 2.7 See footnote 2.

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prohibit copy, and lay opinion." During trial the Claimant withdrew his motion in limineto strike the record custodian and surveillance films with regard to the surveillancereferenced in the E /C' s pre -trial memorandum. The Claimant presented the surveillancefilm through Claimant's testimony and Claimant testified that the film viewed during trialwas an accurate depiction of his activities during the time of the surveillance.

3. Claimant's Motion in Limine to Strike Medical Testimony and Surveillance asFoundation for Misrepresentation Defense (DN 282):Claimant argued in his motion:

"As the doctors could not identify the portion of the surveillance relied upon andrelied upon all the films to support alleged exaggeration, the attached testimony andsurveillance cannot be the legal predicate or foundation for misrepresentation frauddefense. See, Lang Pools v. McIntosh, 415 So.2d 842 (Fla.1st DCA 1982)."

The undersigned finds that pursuant to Lang Pools, a medical expert's opiniondoes not eliminate the necessity of proving the essential foundation facts in supportthereof. I find whether a physician can identify a specific frame or time period in a seriesof video films does not prohibit their testimony as inadmissible but goes to the weight ofthe evidence. I find the deposition testimony of both Dr. Reyes and Dr. Salamonsufficiently identified actions by Claimant, as seen in the video surveillance presentedand authenticated at trial, that supported the opinions expressed by the physicians asnoted in the body of the instant order. This Motion in Limine to Strike MedicalTestimony and Surveillance as Foundation for Misrepresentation Defense is Denied.

4. Claimant's Motion in Limine to Strike Investigation Testimony as Inadmissible for E/CMisrepresentation Defense to Be Heard at Trial Hearing (DN 283):The Claimant withdrew this motion in limine during trial as to the surveillance presentedduring Claimant's testimony. The surveillance presented during Claimant's testimony isthe only surveillance upon which the findings of the undersigned is based.

5. Claimant's Motion in Limine Request to be Heard Prior to Start of Trial on 10/18/19 toStrike Surveillance for Lack of Foundation (DN 284):The Claimant withdrew this motion in limine during trial as to the surveillance presentedduring Claimant's testimony. Again, this surveillance is the only surveillance upon whichthe findings of the undersigned is based.

6. Claimant's Motion in Limine Request to be Heard Prior to Start of Trial on 10/18/19 toStrike Misrepresentation Defense Due to Res Judicata as Same Defense was PreviouslyMature at Prior Pretrial Proceeding and is Now Waived (DN 285):Claimant argues that res judicata bars the E/C from raising the affirmative defense ofmisrepresentation as the defense was previously mature at a prior pretrial proceeding.The Claimant has shown no pretrial stipulation or pretrial questionnaire filed wherein theE/C pled misrepresentation under Fla. Stat. Section 440.105 Or 440.09(4) as anaffirmative defense and later abandoned same. The E/C previously listed surveillancevideo in Uniform Pre -trial Stipulations and Amendments dated between 7/18/17 and

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11/10/17 but none of the Uniform Pre -trial Sipulations or Amendments thereto pled anaffirmative defense of misrepresentation pursuant to Section 440.105(4) or 440.09(4) andClaimant then filed Voluntary Dismissals dated 3/1/18 and 12/13/18.

Claimant asserts that E/C has waived the misrepresentation defense due to "issuepreclusion" as outlined in Florida Dept. of Transportation v. Juliano, 801 So.2d 101 (Fla.2001). Claimant argues that the surveillance issue may not be relitigated given the sameissue was litigated previously, leading to prior resolutions of pending issues. The facts ofthe instant case are distinguished from the facts in the Juliano case. In fact, the Courtdetermined that the Juliano case was not about res judicata at all. It was about "law of thecase," because it was decided on issues in successive appeals. The Court did find itappropriate to explain the difference between "law of the case" and "res judicata." TheCourt determined that "law of the case" only comes to play in successive appeals. Thecourt then explained the doctrine of "res judicata" as: "A judgment on the merits renderedin a former suit between the same parties or their privies, upon the same cause of action,by a court of competent jurisdiction, is conclusive not only as to every matter which wasoffered and received to sustain or defeat the claim, but as to every other matter whichmight with propriety have been litigated and determined in that action. " In the instantcase, there was no judgment on the merits, and as noted below, upon Claimant's variousvoluntary dismissals, there was no jurisdiction to make any determination as to anypotential misrepresentation defense, whether or not the E/C had made any determinationas to whether it was ripe.

Claimant seems to argue that pursuant to Scotty's Hardware, Inc. v. Northcutt 883 So.2d859 (Fla. lst DCA 2004) the mere listing of surveillance in pre -trial questionnairesestablishes a misrepresentation defense that they had a duty to litigate. This overlooks thefact that the E/C did not plead misrepresentation pursuant to Fla. Stat. Section 440.09 or440.105 and could use the surveillance to support the pleading that the major contributingcause of Claimant's continuing need for treatment was not the industrial injury but hisactivities as seen in the surveillance. E/C argues that the instant case is distinguishablefrom Northcutt, because, in Northcutt the parties agreed in a mediation that all issueswere resolved and that agreement was then filed ending litigation. In the instant casethere was no agreement regarding issues, defenses or affirmative defenses. The Claimantfiled a Voluntary Dismissal with prejudice on 3/1/18 for Petitions for Benefits dated7/6/17 and 8/9/17 and a Voluntary Dismissal without prejudice on 12/13/18 for a Petitionfor Benefits dated 10/23/18. At the moment the Claimant dismissed his Petitions forBenefits, the E/C was precluded from proceeding with regard to any potentialmisrepresentation defense, whether ripe or not. See Polston as noted below.

In O'Connor v. North Okaloosa Medical Center, 152 So.3d 843, (Fla.lst DCA 2014) theCourt states: "The very foundation of the doctrine of res judicata is the existence of afinal judgment on the merits in a previous action. Thus, where there is an absence of aprior final adjudication on the entirety of Claimant's claim, with no portion beingadjudicated with finality, the doctrine of res judicata does not apply."

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In Polston v. Hurricane Island Outward Bound, 920 So.2d 766 (Fla.lst DCA 2006) theCourt held that the Judge of Compensation Claims had no jurisdiction to determinewhether the Claimant had made misrepresentations in violation of Fla. Stat. Section440.105 after the Claimant voluntarily dismissed her Petition for Benefits. In Polston,after the Claimant voluntarily dismissed her Petition for Benefits, the E/C objected andsought a determination pursuant to Fla. Stat. 440.09(4) as to whether the Claimant hadmade false, fraudulent or misleading oral or written statements for the purpose ofsecuring workers' compensation benefits. The Claimant objected and the JCC issued anorder finding the Claimant had violated section 440.105(4)(b)(2). The appellate courtreversed stating the JCC had no jurisdiction. The appellate Court further stated that theE/C could raise the misrepresentation defense again if the Claimant filed another Petitionfor Benefits. Similarly in Hamm AT PMI Employee Leasing, 134 So.3d 1150 (Fla.lst DCA2014) the Court held that in the absence of a claim the JCC has no jurisdiction over anaffirmative defense. In the instant case, if there was a ripe misrepresentation defense priorto the Claimant's voluntary dismissals, the Claimant has failed to establish same andalternatively, I find the voluntary dismissals of the Petitions for Benefits precluded theE/C from proceeding in litigation of such an affirmative defense if they had made adetermination that such an affirmative defense was ripe. Further, I find that pursuant toPolston, the E/C may raise the misrepresentation defense again. See also Simpson v.American Custom Interiors, 911 So.2d 794 (Fla.lst DCA 2004).

In Simpson, the JCC began a final hearing on claims for indemnity and a claim forsurgery as well as an affirmative defense by the E/C for misrepresentation. During thehearing the Claimant withdrew the request for indemnity and the JCC found that he hadno jurisdiction to hear the claim for surgery because it was a managed care case and theClaimant had not exhausted the managed care grievance procedures. However, the JCCruled on the misrepresentation issue. The appellate court reversed the JCC holding thatonce the Claimant withdrew the claim for indemnity and the Claimant had not exhaustedthe grievance process, the JCC lost jurisdiction and therefore could not rule on thedefense to that claim. In the instant case the Claimant has not established that the E/Cagreed, "contracted," or implied they were waiving any misrepresentation defense. Theundersigned cannot attribute material elements to any voluntary dismissal or any otherstipulation, for that matter, which are not contained in the four corners of the document.A party seeking to enforce an agreement bears the burden of proving that there wasindeed an underlying meeting of the minds or mutual reciprocal assent sufficient to bindthe parties. See Long Term Management, Inc., v. University Nursing Care center, Inc.,704 So.2d 669 (Fla.lst DCA 1997). Claimant's motion to Strike MisrepresentationDefense Due to Res Judicata as Same Defense was Previously Mature at Prior PretrialProceeding and is Now Waived is Denied.

7. Claimant's Motion in Limine Request to Be Heard Prior to Start of Trial on 10/18/19 toStrike E/C Defense with Specificity for Due Process (DN 286):

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I find Claimant was noticed by E/C on 1/28/19 as to their intent to defend againstongoing compensability of the case based on the misrepresentation defense pursuant toFla. Stat. 440.105(4) and 440.09(4). The E/C states with particularity the testimony ofphysicians to be relied upon and the E/C noticed Claimant regarding surveillanceintended to be used. The Claimant has had the opportunity to view surveillance and todepose physicians named in the E /C's Notice of Defense filed more than 8 months beforefinal hearing. I find there has been no prejudice to the Claimant or lack of notice to himor a violation of procedural due process regarding the utilization of the misrepresentationdefense as he was specifically noticed as to specific statements made by physiciansrelated to specific activities seen in specific surveillance footage. See Isaac v. GreenIguana, Inc. 871 So.2d 1004 (Fla.1st DCA 2004). Claimant's Motion to Strike E/CDefense with Specificity for Due Process is Denied.

8. Claimant's Motion in Limine Request to be Heard Prior to Start of Trial on 10/18/19 toStrike Misrepresentation for Lack of Foundation in Surveillance Relied upon by Defenseis not Detailed (DN 287):The Claimant asserted that "E /C language is vague and inaccurate so as not to appriseClaimant of act or conduct on his part is the basis of charge." I find that the E /C's"Notice of Defense" states the E/C obtained surveillance during the time periodsClaimant was treating with authorized physicians, specifically Dr. Salamon and Dr.Reyes. I find that the E/C identified specific statements from the physicians regardingClaimant's actions on the surveillance and statements Claimant made to the physiciansregarding his abilities. I find the description provided in the "Notice of Defense" affordedthe Claimant sufficient notice of what the E/C is alleging and Claimant has been affordedfull due process. Claimant asserted that the language in Robinson V. State, 152 So. 717,(Fla. 1934) supported his argument regarding lack of foundation in surveillance. InRobinson, a Motion to Quash a traffic officer's affidavit that stated the defendantoperated a vehicle in a careless and reckless manner was at issue. The affidavit was foundto be conclusory as it did not apprise the defendant of the specific acts that constituted thealleged infraction. In the instant case, the E/C specifically identified statements fromphysicians, and provided the surveillance that served as the basis for the statementsobtained from the physicians. Claimant's Motion to Strike Misrepresentation for Lack ofFoundation in Surveillance is Denied. This denial was not a ruling on the ultimate issueas to whether Claimant violated Fla. Stat. Section 440.105.

9. Claimant's Motion in Limine Request to be Heard Prior to Start of Trial on 10/18/19 toStrike Misrepresentaion Defense Due to Res Judicata as Same Defense was PreviouslyMature at Prior Pretrial Proceeding and is now Waived (DN 288):See Paragraph 6 above. Claimant's Motion to Strike is Denied.

10. Claimant's Motion in Limine Request to Be Heard Prior to Start of Trial on 10/18/19 toStrike Misrepresentation Defense Due to Accord and Satisfaction as Same Defense wasPreviously Mature at Prior Pretrial Proceeding and is Now Waived (DN 289):Fla. Stat. Section 673.3111 defines accord and satisfaction by use of instrument. The

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statute is found within the commercial relations chapter referencing the uniformcommercial code and negotiable instruments. I do not find this specifically applicable tothe instant case but the language is instructive with regard to Claimant's argument thathis voluntary dismissal and the subsequent provision of medical care established aratified agreement. In the language of Section 673.3111 the legislature instructs that aperson against whom a claim is asserted may prove that an instrument was tendered asfull satisfaction of a claim if the instrument contains a conspicuous statement to the effectthat the instrument was tendered as full satisfaction of the claim. Again, I do not findaccord and satisfaction applicable in the instant case, but if it so applied, the Claimant haspresented no conspicuous statement, no agreement, and no stipulation that sets forth anagreement that an affirmative defense was withdrawn or "satisfied." I find the Claimanthas presented no evidence of a "contract" addressing any potential defense based onmisrepresentations of Claimant or abandonment of same. The undersigned cannotattribute material elements to any voluntary dismissal or any other stipulation, for thatmatter, that are not contained in the four corners of the document. A party seeking toenforce an agreement bears the burden of proving that there was indeed an underlyingmeeting of the minds or mutual reciprocal assent sufficient to bind the parties. I find noevidence of abandonment of an affirmative defense of misrepresentation. Claimant'sargument that E/C waived prevailing party costs and/or that E/C provided benefits after avoluntary dismissal, does not establish abandonment of an affirmative defense andClaimant's Voluntary Dismissal divested the E/C of any ability to litigatemisrepresentation. See Long Term Management, Inc., v. University Nursing CareCenter, Inc. 704 So.2d 669 (Fla.lst DCA 1997). See also paragraph 6 above. Claimant'sMotion to Strike Misrepresentation Defense Due to Accord and Satisfaction as SameDefense was Previously Mature at Prior Pretrial Proceeding and is now Waived isDenied.

* *In addition to the above referenced Motions in Limine, the Claimant asserted Lachesand Estoppel as to the E /C's affirmative defense of misrepresentation.

Regarding Laches: "The delay required to render the defense of laches available musthave been such as practically to preclude the court from arriving at a safe conclusion as tothe truth of the matters in controversy, and thus make the doing of equity either doubtfulor impossible, as through loss or obstruction of evidence of the transaction in issue; orthere must have occurred in the meantime a change in conditions that would render itinequitable to enforce the right asserted. See: Garcia v. Guerra, 738 So.2d 459, (3rd DCA1999). I find that delay, if any, of the E /C's potential ability to assert themisrepresentation defense has not resulted in any change of conditions that preclude theundersigned from arriving at a safe conclusion as to the truth of the matters incontroversy and the Claimant's Voluntary Dismissal caused the E/C to be unable topursue a misrepresentation defense until the filing of a new Petition for Benefits. Theevidence presented through deposition of physicians and Claimant's testimony revealedno lack of memory or other impediment which precluded the undersigned fromdetermining the truth of the matters asserted. I therefore deny Claimant's assertion of the

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affirmative defense of laches.

Regarding Estoppel: For the doctrine of estoppel to be effective, five factors must be met:(1) an identical issue must have been presented in the prior proceeding; (2) the issue musthave been a critical and necessary part of the prior determination; (3) there must havebeen a full and fair opportunity to litigate that issue; (4) the parties in the two proceedingsmust be identical; and (5) the issue must have been actually litigated. See Felder v. State,Dept. of Management Services, Div. of Retirement, 993 So.2d 1031 (Fla.lst DCA 2008).In the instant case, the issue of misrepresentation pursuant to Fla. Stat. Sections 440.09and 440.105 were never presented to the Office of Judges of Compensation Claims andthe Claimant dismissed Petitions for Benefits with no agreement noted as to any potentialaffirmative defense of misrepresentation being withdrawn. Upon Claimant's voluntarydismissal of his claims, there was no jurisdiction to proceed with the affirmative defenseof misrepresentation even if the E/C wished to litigate same pursuant to Polston as notedabove. Therefore Claimant's argument for estoppel fails specifically, at the very least, tofactor (3). I therefore deny Claimant's assertion of the affirmative defense of estoppel.

Findings of Fact and Conclusions of Law:

Final hearing was held in this matter on October 18, 2019 regarding the Petitions for

Benefits filed 3/27/19, 5/31/19, 6/5/19, and 7/1/19. Claimant seeks authorization of medication

prescribed by Dr. Joel Salamon; authorization of a return appointment to Dr. Garcia -Granda;

authorization of prescriptions of Dr. Garcia -Granda; reinstatement of benefits; costs and

attorney's fees. Claimant was represented by Steven L. Miller, Esq. E/C was represented by

Andrew R. Borah, Esq.

In making my findings of fact and conclusions of law, I have considered and weighed all

the evidence presented to me. I have resolved all the conflicts in the testimony. I have not written

a detailed summary of all the facts and evidence presented. See F.S. Section 440.25(4)(e), Garcia

v. Fence Masters, Inc., 16 So.3d 200 (Fla. 1st DCA 2009) holding that a compensation order need

only contain findings of ultimate material fact necessary to support mandate, rather than a

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recitation of all evidence presented. Although I may not reference or detail each item of evidence

presented by the parties, I have carefully considered all the evidence and exhibits in the context

of the arguments of counsel and appropriate statutory authority and case law in making the

following findings of fact and conclusions of law.

1. The undersigned has jurisdiction over the parties and subject matter of the final

hearing.

2. Any and all issues raised by way of the petition for benefits that are the subject matter

of the final hearing, but which were not tried at the hearing or dismissed at trial, are

presumed resolved, or, in the alternative, deemed abandoned by the Claimant and

therefore are denied and dismissed with prejudice. See Scotty's Hardware v.

Northcutt, 883 So.2d 859 (Fla.1st DCA 2004); Betancourt v. Sears Roebuck & Co.,

693 So.2d 253 (F1a.1stDCA 1997).

3. The Claimant is a 45 year -old male who sustained a compensable injury on October

14, 2014 where he injured his right wrist when a heavy box fell on his hand. The

Claimant testified that he completed 12th grade in Cuba. He moved to Miami, Florida

in 2006 and testified that he does not speak English. The Claimant has treated with

numerous physicians including Dr. Franklin Reyes, M.D., orthopedic hand specialist;

Dr. Joel Salamon, M.D., pain management specialist; and Dr. Bernardo Garcia -

Granda, M.D. Dr. Salamon does not speak Spanish. The Claimant regarded this as a

significant issue at trial and it will be addressed below. Both Dr. Reyes and Dr.

Garcia - Granda are fluent in Spanish.

4. Pat Gutierrez testified as an expert in interpretation in court proceedings and as a

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medical interpreter. She is certified by the State of Florida as a Court Interpreter and I

find that she is qualified as an expert. She testified that she interviewed the Claimant

briefly two days before trial about his experiences at medical appointments. She

testified that the correct way to interpret at medical appointments is to have a medical

interpreter interpret Claimant's complaints simultaneously at the time of the

statements being made to a medical provider. Pat Gutierrez testified that she reviewed

a payout from the E/C in an effort to cross -reference dates of medical appointments

with dates of payments to interpreters and she determined from the payout and from

her brief interview of the Claimant that the Claimant did not always have access to a

certified interpreter at the Dr. Salamon's office. She specifically addressed an

occasion where the Claimant had advised her that, during an appointment with Dr.

Salamon, a driver paid by the E/C had been used as an interpreter at the medical

appointment.8 Ms. Gutierrez testified that a fluent driver would not be able to

translate with the same reliability as that of a trained translator. The witness had no

actual knowledge as to the capabilities of the driver, nor was any evidence brought

forward from Dr. Salamon or Dr. Salamon's staff with regard to the interpretation of

Claimant's statements at Dr. Salamon's office. The expert testified she had not

interviewed anyone from Dr. Salamon's office or anyone with the company, Call

One, who provided both the interpretation and transportation services.

5. Ms. Gutierrez was specifically asked about the word surgery and whether it had

different meanings and she testified that in translating the word surgery to Spanish it

8 The undersigned notes that during later testimony adjuster Nancy Sansone testified that the transportationcompany, One Call, was also the company that provided interpreting services and there were not always differentinvoices for interpretation services separate from the transportation services for a given medical appointment date.

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had only one meaning, there are synonyms such as operation, but it had only one

meaning.

6. Ms. Gutierrez was specifically asked about the difference between: "I can't use my

hands," and "my hand is useless." She was asked about these phrases in English. I do

not find Ms. Gutierrez's understanding with regard to a difference in meaning

between these phases in English as useful in determining what may or may not have

been stated to the physicians in the instant case. Essentially, I find Ms. Gutierrez' s

expert opinion was that the Claimant should have had certified interpreters at his

medical appointments with English speaking physicians, but she had no knowledge of

what actually occurred at specific appointments other than through her brief interview

of the Claimant two days before trial. The evidence adduced during trial was that

interpreters were provided but Claimant was not always satisfied with the

interpretation as noted above when the driver for Call One served as an interpreter on

one occasion. I note that no evidence was presented by Ms. Gutierrez or the adjuster,

Nancy Sansone, that Claimant complained to the adjuster or anyone else of a lack of

ability to communicate with Dr. Salamon prior to being interviewed by Ms. Gutierrez

two days before trial.

7. Dr. Salamon treated the Claimant from May 20, 2016 and into 2018. Dr. Salamon is a

pain management specialist, board certified in anesthesiology and pain management.

Dr. Salamon's deposition was taken on October 17, 2017 and again on November 30,

2017. Dr. Salamon testified that when the Claimant came to him on May 20, 2016 he

said his pain was at a constant level of 8/10 in intensity. Dr. Salamon opined at that

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time that Claimant had a decreased range of motion. Dr. Salamon did not find any

signs or problems with the skin, nails, hair or anything else with the right hand other

than decreased strength and range of motion. Dr. Salamon opined that Claimant's

diagnosis was chronic hand pain. He opined he did not have Reflex Sympathetic

Dystrophy (RSD) as there would be allodynia, which is a painful response to non -

painful stimuli. The fact that the Claimant could wear a neoprene glove on his hand

was sufficient to show he did not have allodynia.

8. Dr. Salamon opined that Claimant had normal EMG's and a basically normal MRI

with no significant findings. He said the MRI showed fraying of the ulnar insertion

into the triangular fibrocartilage and mild extensor carpi ulnaris tendonitis but found

those as insignificant. Because the Claimant was consistently complaining of 8/10

pain level that never changed, Dr. Salamon stated he prescribed medication including

Gabapentin. Because the Gabapentin was having no effect he eventually tried a

diagnostic /therapeutic stellate ganglion block. Even though he did not believe the

Claimant had RSD, he wanted to try the block because the Claimant consistently

complained of such a high level of constant pain. The Claimant had also told Dr.

Salamon that he was unable to use his hand at all. Dr. Salamon was asked what the

Claimant had told him in terms of what he was able to physically do with his hand

and the doctor replied: "He said he couldn't use it." When Dr. Salamon was asked:

"Was it your opinion, was it your statement that he told you that he was unable to use

his right hand at all ?" he replied: "It was not only from what he told me, but the way

he carried himself when he visited the office. He never used his right hand. He always

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keeps his hand supported by the other hand, as if he cannot do anything with that

hand. So, it's not only what he tells you, is what you observe." The doctor

confirmed that it was not only his observations but the Claimant told him he could not

use his right hand at all.

9. Dr. Salamon opined that Claimant did not have RSD after two stellate ganglion

blocks based on the Claimant's lack of pain diminishment. Claimant had some

reduction in pain but the reduction in pain did not support a finding of RSD. Dr.

Salamon opined that there should have been at least a 90 percent reduction in pain

after the second ganglion block to support a diagnosis of RSD. Dr. Salamon was

asked his opinion as to whether there was anything neurologically based causing

Claimant's problem to which he replied: "There was a specific reason for asking for a

neurologist. And honestly, I don't think there is anything going on here. I don't think

he has RSD. I don't think he has any neuropathic pain. Everything has been negative.

His EMG has been negative. His MRI has been negative. The response to

medications which would treat neuropathic pain has been negative. Everything has

been negative. Not only that, he has returned with non - anatomic neurologic

complaints after procedures. He was having facial numbness after stellate ganglion

blocks. Well, the stellate ganglion does not do anything to the face. The sensation in

the face is from a cranial nerve. So anything done in the neck would not affect that.

That is a non - anatomic complaint. He has this complaint or this diagnosis of RSD or

CRPS Type I, in which the hallmark symptom is allodynia. Allodynia is a painful

response to a non -painful stimulus. People with true RSD can't even stand to have the

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bed sheets on their affected limb Yet, he is wearing a tight neoprene glove on the

hand." Dr. Salamon opined that the Claimant had a "fairly confusing presentation."

10. Dr. Salamon speaks English but there was no testimony from Dr. Salamon that he had

any difficulty in determining what the Claimant's complaints were and he specifically

testified that the Claimant had told him that his hand was useless and that he could

not use his hand.

11. Dr. Franklin Reyes is an orthopedic hand surgeon. He is fluent in Spanish. He

evaluated and treated the Claimant from January 28, 2016 until March 16, 2017. His

initial evaluation was as an E/C independent medical examiner Dr. Reyes' deposition

was taken on October 5, 2017 and March 8, 2018. Dr. Reyes diagnosed Claimant with

chronic pain. At the January 28, 2016 appointment Dr. Reyes found no signs of RSD

and opined that the results of the MRI did not correlate well with Claimant's

symptoms. He found no atrophy, no discolorations, no masses, and no changes in

temperature or bluish discoloration.

12. Although Dr. Reyes was E /C's Independent Medical Examiner, he was later

authorized to treat the Claimant Claimant returned to Dr. Reyes on March 17, 2016.

Because Claimant continued having pain in the hand Dr. Reyes diagnosed chronic

pain syndrome and recommended that he see a pain management specialist. On May

26, 2016 Dr. Reyes opined that the Claimant had RSD because he saw swelling,

discoloration and shines of the skin. He noted: "Because of therapy he has flexion of

the fingers, but that hand is useless. He has a chronic condition at this time and he is

to see a pain management specialist." Dr. Reyes was asked what he meant by "he has

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no use for the hand" to which he agreed that meant he could not do anything at all

with his right hand. Dr. Reyes was asked if there were any notes where the Claimant

was telling him that he could not do anything with his right hand, to which Dr. Reyes

replied: "Yeah, that was the conversation every day that he came."

13. On June 30, 2016 Dr. Reyes noted no "shines of the skin," no discoloration and the

Claimant could close his hand. On that date, Dr. Reyes determined there was nothing

else he had to offer the Claimant and he did not intend to see the Claimant again. He

did not see Claimant again until February 9, 2017 when Claimant returned requesting

a referral to a psychologist or psychiatrist saying he felt very depressed. The Claimant

told Dr. Reyes that Dr. Salamon could not refer him to a psychologist. Dr. Reyes

assumed that the Claimant came to him for this referral because Dr. Salamon could

not make the referral. Dr. Reyes made the referral but did not intend to see the

Claimant again as he had nothing to offer in the way of treatment. No evidence was

presented as to why Dr. Salamon, as an authorized treating physician, could not refer

the Claimant for psychiatric /psychological evaluation.

14. Claimant once again came to see Dr. Reyes on March 16, 2017. Claimant told Dr.

Reyes he had been recommended for surgery. Dr. Reyes clarified that Claimant told

him he had been recommended for surgery on his hand. During trial there were

assertions that Claimant was misunderstood regarding what he said to Dr. Reyes

about having been recommended for surgery. Assertions were made that Claimant

could have been communicating his reference to surgery to Dr. Reyes when he really

meant the stellate ganglion blocks that Dr. Salamon performed by injection into the

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neck because Dr. Salamon had checked the box for surgery on a DWC25 form when

he referenced the stellate block procedure. Dr. Reyes though, who speaks the

Claimant's language, was clear that Claimant had told him that he had been

recommended for surgery of his hand. The Claimant also testified that he could not

read the DWC25 as it was in English nor did he look at the DWC25 where the box

was checked.

15. Claimant began treating with Dr. Bernardo Garcia - Granda on May 15, 2018. Dr.

Garcia - Granda is a psychiatrist and speaks Spanish. The Claimant continued to see

Dr. Garcia - Granda generally 2 to 3 times per month. Dr. Garcia - Granda opined that

the Claimant was emotionally affected by the physical injuries he suffered as a result

of the accident on October 14, 2014. He recommended supportive psychotherapy and

medications. In a June 4, 2018 visit with Dr. Garcia - Granda Claimant told the doctor

that Dr. Salamon had prescribed Diclofenac Sodium Gel of 3% 3X a day, but he

noticed when he put the cream on, the nerve pain increased. Later Claimant told the

doctor the gel helped for only about an hour. At trial the Claimant testified the gel

helped and he wanted to continue receiving it. Claimant consistently told Dr. Garcia -

Granda that his hand was in pain and on August 13, 2018 told him that his hand was

useless. On September 11, 2018 the doctor notes that Claimant tells him his

complaints are unchanged.

16. During the trial Claimant presented video surveillance taken over a period of time

from approximately June, 2015 through the beginning of 2018. The Claimant agreed

that the surveillance was an accurate depiction of the activities shown. Based on

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Claimant's testimony I find that the activities Claimant was seen doing during the

video are activities that he has been capable of doing during the entire time that he

has treated with Dr. Salamon and Dr. Reyes as he felt they were within restrictions of

10 pounds or less, which was his understanding of his limitations. Claimant was seen

doing the following activities with his right hand: operating a cell phone, shutting a

car door, scratching his arm, sliding his hand in and out of his pocket, lifting the lid of

a garbage can, extending his arm above his head to unlatch a gate lever above his

head, opening a car door, carrying a plastic container with liquid and pouring the

liquid into the motor area of his car, cleaning sugar crystals from the back of his car

with a rag in a sweeping motion, closing the trunk of his car, lifting bags from the

trunk of his car, and holding and sorting mail into and out of a mailbox.

17. Dr. Salamon and Dr. Reyes reviewed the video surveillance. Dr. Salamon was asked

how the surveillance impacted his opinions regarding the Claimant's need for a

neurologist, to which he replied: "Well, on the surveillance he was doing things that

he told me he couldn't do. He couldn't use his right hand at all, but on the

surveillance he was using his right hand, his right arm, seemingly without difficulty.

An at that point is like with what he's complaining of, you can't do that. So, if he's

able to do it, then obviously he's a lot better than he's relaying to me, and he doesn't

need any further workup or treatment." Dr. Salamon further stated: "I was able to

review surveillance videos provided to me that show Mr. Casanas using his right hand

normally. Not only was he able to use the hand for fairly strenuous activities, working

on the car, cleaning out the car, but he also used his hand as a matter of course. Never

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did he hesitate or seem to favor the hand. So, he was just using it normally."

18. Dr. Reyes was asked if he had an opinion as to what the Claimant's physical

capabilities are with his right hand in light of the surveillance that he reviewed, to

which he replied: "Well, I saw him doing things that I, prior to that I didn't think he

could do." Dr. Reyes testified that he remembered the Claimant saying he couldn't do

much with the hand and when he saw the surveillance, there was "definitely a big

difference." Dr. Reyes confirmed that he watched surveillance with coverage from

activities between 2015 and 2017. Dr. Reyes made the following statements: "There

was a big discrepancy from what I saw the patient had than when I saw the tape. It

was -I thought the patient was not capable of doing what I saw he was doing." ; "I

saw him performing with both [hands] with no favoring one arm to the other. "; "And

now I am sort of frustrated because what I thought that he had, he no longer has. That

is very conflicting. So if I see him back in my office, it's not going to be like a normal

relationship. And I don't want to be, you know, in arguments with the patient. "; "I'm

sorry, but that is like a photograph. And what I have been seeing through the months

of his being a movie about him, but then I see something that did not correlate with

that movie. And that really threw me off the road. "; "This patient is very, very

confusing. This patient is able to do things that I thought that he couldn't do. And in

terms of the swelling, as I said before, is something that I observed. But you can

produce that if you put ligature in your arm. Not that he is doing it. But those are

signs of something that is going on in the arm..."

19. The Claimant seems to argue that he was misunderstood by Dr. Salamon, based on

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issues of interpretation, with regard to Dr. Salamon's testimony that the Claimant told

him he could not use his hand. But, Dr. Reyes testified to the same communication

from the Claimant and Dr. Reyes was able to communication to Claimant in

Claimant's language. Additionally, the Claimant communicates with Dr. Garcia -

Granda in his own language and Dr. Garcia - Granda notes that Claimant told him if he

just touches his forearm with his finger it causes him pain and he notes that Claimant

told him his right hand is very painful and "useless." The records of Dr. Garcia -

Granda over the period of time from May, 2018 through March, 2019 show that

Claimant states his right hand symptoms have remained essentially unchanged.

20. Under Fla. Stat. Sections 440.09(4) and 440.105(4) a Claimant who knowingly or

intentionally makes any false, fraudulent, incomplete, or misleading statement for the

purpose of obtaining workers' compensation benefits, or in support of a claim for

benefits, may forfeit his right to benefits. See Village Apartments v. Hernandez, 856

So.2d 1140 (Fla. lst DCA 2003). It is not necessary that the false, fraudulent,

incomplete, or misleading statement be material to the claim. Rather, what matters is

that Claimant though or believed the statement would have a material impact, and that

he or she made the statement with the intent of obtaining benefits. Arreola v.

Administrative Concepts, 17 So.3d 702 (Fla. lst DCA 2009).

21. Therefore, in ruling on a misrepresentation defense the JCC must conduct a two -step

inquiry. The first step is to determine if Claimant made one or more false, fraudulent,

incomplete, or misleading statements. The second is to determine Claimant's intent in

making such statements. Specifically, whether such statements were intended by

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Claimant to be for the purpose of obtaining benefits.

22. In the instant case, I find the Claimant made statements to Dr. Garcia -Granda, Dr.

Reyes and Dr. Salamon that were incomplete with regard to the use of his right hand

as noted above. I find the Claimant made misleading statements with regard to the use

of his right hand as noted above. I find the Claimant made false statements with

regard to the use of his right hand as noted above. I find the Claimant told all three

physicians that his right hand was "useless" and that he could not use his right hand

which I find is false. I find that Claimant misrepresented pain complaints to the

physicians when he stated that it was painful just to touch his forearm and that his

pain was constantly 8 on a scale of 1 to 10. The surveillance seen by the physicians

and during trial shows no outward indication of pain, as noted by the physicians.

23. Claimant's testimony at trial was that he had approximately 70 appointments in total

between Dr. Reyes and Dr. Salamon over the period of time from 2015 to 2018. I

find that Claimant's testimony with regard to the surveillance viewed by the

physicians and viewed at trial accurately depict activities of the Claimant during that

time period between 2015 and 2018 when he was being treated by Dr. Salamon and

Dr. Reyes. I find that the level of activity reflected in the surveillance viewed by the

physicians and viewed at trial establish that Claimant misrepresented his capabilities

and was misleading to the physicians. I find that Claimant intentionally made false,

misleading and misrepresentative statements with the intent to secure continuing

benefits.

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Wherefore, it is Ordered and Adjudged:

1. Claimant's request for payment of prescribed medication by Dr. Salamon is Denied.

2. Claimant's request for authorization of a return appointment to Dr. Garcia - Granda is Denied.

3. Claimant's request for authorization of medication per prescription of Dr.Garcia - Granda is

Denied.

4. Claimant's request for reinstatement of benefits is Denied.

5. Claimant's request for Denial of Fraud Defense is Denied.

6. Claimant's request for Costs and Attorney's Fees is Denied.

DONE AND SERVED this 22nd day of October, 2019, in Tampa, Hillsborough County,Florida.

/dWRita L. YoungJudge of Compensation ClaimsDivision of Administrative HearingsOffice of the Judges of Compensation ClaimsTampa District Office6302 E. Dr. Martin Luther King Jr. Blvd., Suite 460Tampa, Florida 33619(813)664 -4000www.fljcc.org

COPIES FURNISHED:Steven L. MillerKaplan & Miller, P. A.999 Ponce de Leon Blvd, Suite 555Coral Gables, FL 33134smiller @kaplanandmiller com,jb @kaplanandmiller.com

Andrew R. Borah, EsquireHurley, Rogner, Miller, Cox, & Waranch, P.A.700 W. Hillsboro Blvd., Suite #2 -107Deerfield Beach, FL 33441aborah@hrmcw.com,sfournier@hrmcw.com

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