STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS TAMPA DISTRICT OFFICE FINAL COMPENSATION ORDER

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1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS TAMPA DISTRICT OFFICE Tracy Miles, Employee /Claimant, vs. Gillette Construction Services /Guarantee Insurance Company, Employer /Carrier /Servicing Agent. / OJCC Case No MAM Accident date: 1/26/2012 Judge: Mark A. Massey FINAL COMPENSATION ORDER Pursuant to due notice to the parties, a final hearing was held in this matter on 10/29/15. The subject of the hearing was the petition for benefits filed 01/16/15. Present at the hearing and representing E/C was Kate Albin, Esquire. Claimant did not appear for the hearing. Based on claimant's failure to appear at the final hearing, a show cause order was entered and a show cause hearing was set for 11/19/15. Claimant failed to appear for the show cause hearing. This order follows. CLAIMS 1. Authorization of a follow -up appointment with authorized provider, Port of Miami Medical Clinic 2. Attorney's fees and costs. DEFENSES 1. The industrial accident is no longer the major contributing cause of the claimant's condition and/or need for treatment. 2. The claimant's current need for treatment, if any, if pre- existing. 1

2 3. Entire claim denied due to claimant's violation of the misrepresentation provision of Fla. Stat and (4). 4. Claimant does not require any further treatment as it relates to his industrial injuries. 5. The claimant's work -related condition has resolved. 6. No costs or attorney's fees are due or owing. The following items were admitted into evidence. The letter "D" in parentheses followed by a number refers to the OJCC docket number. JUDGE'S EXHIBITS 1. Petition for benefits filed 01/16/15 (D -79) 2. Response to petition filed 03/18/15 (D -87) 3. Pre -Trial Stipulation filed 05/01/15 (D -92) 4. Amended Order Approving Pre -Trial Stipulation 5. E /C's Notice of Defenses filed 03/20/15 (D -88) 6. E /C's Supplemental Notice of Defenses filed 04/06/15 (D -89) 7. E /C's Second Supplemental Notice of Defenses filed 05/13/15 (D -98) 8. E /C's Amendment to Pre -Trial filed 05/14/15 (D -99) 9. Claimant's Amendment to Pre -Trial filed 06/09/15 (D -100) 10. Claimant's Motion to Continue Final Hearing filed 05/04/15 (D -94) 11. Order Continuing Final Hearing dated 05/12/15 (D -97) 12. Motion to Withdraw as Counsel filed 09/16/15 (D -101) 13. Order Granting Motion to Withdraw as Counsel and Continuing Final Hearing dated 09/17/15 (D -105) 2

3 14. E /C' s Trial Memorandum, for argument only (D -114) EMPLOYER/CARRIER'S EXHIBITS 1. Deposition of claimant taken 02/20/15 (D -109) 2. Deposition of Dr. Rosabal taken 05/20/15 and exhibits (D -110, 116) 3. Deposition of Christine Houston taken 04/22/15 and exhibits (D -111, 117) 4. Deposition of Adewale Gisanrin taken 07/08/15 and exhibits (D -112, 118) 5. Deposition of Dr. Potash taken 06/09/15 and exhibits (D -113, 119) 6. Deposition of Franz Scheibel taken 04/23/15 and exhibits (D -115, 120) PROCEDURAL HISTORY Claimant was involved in an industrial accident on 01/26/12. He was represented by very competent counsel from approximately 04/08/12 through 09/17/15. During that time, various petitions were filed and litigated along with numerous motions. The most recent petition, and the one at issue currently, was filed on 01/16/15. Shortly after the petition was filed, a final hearing was scheduled for 08/12/15. On 05/04/15 claimant's counsel filed a motion to continue the final hearing. The motion was granted and the hearing was continued to 09/30/15. On 09/16/15, two weeks before the rescheduled hearing, claimant's counsel filed a motion to withdraw as counsel. After a hearing on the matter, the motion was granted and the hearing was continued to 10/29/15. The order granting the withdrawal of counsel, and notice of the new hearing date, were mailed to the claimant at 3300 NW 11th Place, Apt. 202, Miami, FL (the address appearing on the petition, and the address claimant gave in deposition), and to 2255 NW 119th Street, Apt. 27, Miami, FL 3167 (the address appearing on the motion to withdraw). The one with the 119th Street address was returned as undeliverable, but the one with the 11th 3

4 Place address was not returned and is therefore presumed to have been received by claimant. The final hearing was scheduled to begin at 3:00 p.m. The undersigned delayed the start of the hearing until 3:10 p.m., by which time claimant had still not appeared. Various documents were admitted into evidence, and the hearing concluded at about 3:30 p.m. The undersigned verified that claimant had still not appeared by that time, and the record was closed except for the show cause hearing. Notice of the show cause hearing was mailed to the same two addresses for the claimant, and again one was returned but the other was not. I believe it is important to note that at all times during the course of litigation in this matter, claimant was represented by very competent counsel, until two weeks before the originally rescheduled hearing date. Claimant's counsel appeared at all pertinent depositions and other discovery events, and had the opportunity to make, and did make, all appropriate objections and inquiries at said events. Most if not all of the evidence in this case would have been by deposition and records in any event, and claimant's counsel was fully aware of the nature and basis of E /C's defenses for several months. Further, when the motion to withdraw as counsel was granted, and the hearing was continued a second time (09/17/15), it was specifically agreed by both sides that no further discovery would be allowed after the existing discovery cutoff date (09/20/15), even if claimant were to retain new counsel. Therefore, while I was somewhat hesitant to conduct a hearing without the claimant present, I believe he has been afforded all due process under the law, especially after being given two chances to appear, and failing to do so after proper notice in both instances. FINDINGS OF FACT 4

5 Claimant was involved in a work accident on 01/26/12 when he was struck in the head by some pipe which had been thrown by a co- worker, sustaining a laceration under his left ear, and also causing him to fall. Following the accident claimant also complained of low back pain. The accident was accepted as compensable and claimant was authorized to treat at the Port of Miami Medical Clinic, where he saw Dr. Irwin Potash. Dr. Potash sutured the laceration and provided some follow -up treatment. As of 02/23/12, Dr. Potash felt the claimant was at MMI for the ear and head wound, with zero impairment, no restrictions, and no need for further treatment. For the low back complaints, he referred the claimant for orthopedic care. Claimant was seen by Dr. Orestes Rosabal for orthopedic evaluation. An MRI taken on 02/21/12 showed a disc herniation at L5 -S1 along with some degenerative changes. Dr. Rosabal recommended medication and physical therapy. He initially believed the low back pain resulted from a temporary exacerbation of the pre -existing degenerative conditions, as well as the LS-S1 herniation, caused by the work accident. After reviewing medical records from a March 2011 car accident, however, Dr. Rosabal testified that he no longer believes the work accident is the major contributing cause of the claimant's low back condition and symptoms. In a deposition taken on 02/20/15, claimant specifically denied injuring his low back, having pain in his low back, or seeing a doctor for his low back, at any time prior to the 01/26/12 work accident. Claimant also denied any previous low back problems in the medical history he gave to Dr. Rosabal, and in the medical history he gave to Dr. Potash. E/C presented evidence that claimant had been struck by a car as a pedestrian on 03/18/11, following which he had significant complaints of low back pain. He underwent 36 5

6 visits of chiropractic treatment between 04/02/11 and 07/15/11, complaining of low back pain on each visit. Following an MRI taken on 06/25/11, which revealed a disc herniation at L5 -S1 along with degenerative changes, the chiropractor referred the claimant to an orthopedic specialist for consideration of a "more invasive approach" including facet blocks, epidural injections, and possible discectomy of the lumbar spine. The chiropractor assigned a 6% permanent impairment rating for the low back (per the AMA guides). Claimant also testified in his deposition that he had been working for Labor for Hire, but was unable to work more than 20 hours a week, and some weeks substantially less or not at all, due to his injuries and limitations. E/C presented evidence that, while working for Labor for Hire, claimant had been working steadily and averaging substantially more hours per week than what he testified to, including significant amounts of overtime. ANALYSIS Misrepresentation Defense It is well settled that a claimant who makes false, fraudulent or misleading statements with the intent and purpose of obtaining workers' compensation benefits, forfeits his or her right to benefits, pursuant to sections (4) and (4)(b)2., Fla. Stat. See Village Apartments v Hernandez, 856 So. 2d 1140 (Fla. 1st DCA 2003); Village of North Palm Beach v Mckale, 911 So. 2d 1282 (Fla. 14 DCA 2005); Arreola v Administrative Concepts, 17 So. 3d 792 (Fla. 1st DCA 2009). Here, claimant made false statements to his treating physicians, and false statements in 6

7 deposition, when he denied having any low back injuries, low back pain, or low back treatment prior to the 01/26/12 accident. The records placed into evidence show convincingly that claimant had a low back injury, and significant complaints of low back pain and low back treatment, within a year prior to the industrial accident. The previous injury was to the same area of the back. In fact, Dr. Rosabal testified that the 02/21/12 MRI was virtually identical to the 06/25/11 MRI (both showed the herniated disc at L5 -S1) with the exception of more advanced degenerative changes on the later one. Statements regarding past medical history are generally considered highly relevant and material in the workers' compensation context. Village Apartments, supra. I find that claimant provided a false medical history, in deposition and to his treating physicians. I further find that claimant made such statements with the specific purpose and intent of obtaining workers' compensation benefits. There can be no other explanation. Claimant was represented by counsel and actively seeking workers' compensation benefits at the time the statements were made. There would be no other reason for him to hide or lie about his past medical history, except to do so in an attempt to provide artificial support for his claims in this case. Therefore I find that both elements of the fraud defense have been proven (false statements and intent), by more than a preponderance of the evidence. Arreola, supra. I further find that claimant made false statements in deposition regarding the amount of work he was doing and getting paid for. The records from Labor for Hire demonstrate convincingly that he was working and earning significantly more than what he testified to in deposition. I find that claimant misrepresented the amount of work he was doing in an attempt to bolster his workers' compensation claim and make him appear more disabled than he actually is. 7

8 Again there can be no other logical explanation for providing such false testimony, and again I find that both elements of the fraud defense have been proven, by more than a preponderance of the evidence. McKale, supra. Major Contributing Cause Independent of the misrepresentation defense, I find that claimant is not entitled to further medical care in any event. I find that claimant is not entitled to further medical care for the ear and head laceration, based on the testimony of Dr. Potash that no further treatment for that injury is reasonable or medically necessary, and claimant has reached MMI with no impairment for that injury. I further find that claimant is not entitled to continued medical care for the low back, based on the testimony of Dr. Rosabal that the work accident is not the major contributing cause of the low back condition or need for treatment. Rather, the condition and need for treatment, if any, is due to one or more pre- existing conditions and is not related to the industrial accident. WHEREFORE it is hereby ORDERED AND ADJUDGED: 1. The claim for authorization of a follow -up appointment at Port of Miami Medical Clinic is denied and dismissed with prejudice. 2. The claim for costs and attorney's fees is denied and dismissed with prejudice. 3. Claimant has forfeited his right to workers' compensation benefits by operation of sections (4) and (4)(b)2., Fla. Stat. DONE AND ORDERED this 19th day of November, 2015, in Tampa, Hillsborough County, Florida. Mark A. Massey 8

9 Judge of Compensation Claims Division of Administrative Hearings Office of the Judges of Compensation Claims Tampa District Office 6302 E. Dr. Martin Luther King Jr. Blvd., Suite 460 Tampa, Florida (813) COPIES FURNISHED: (Via U.S. Mail) Tracy Miles 3300 NW 11th Place, Apt. 202 Miami, FL (Via U.S. Mail) Tracy Miles 2255 NW 119th Street, Apt. 27 Miami, FL Guarantee Insurance Company PO Box Lake Mary, FL Andrew R. Borah, Esquire Hurley, Rogner, Miller, Cox, Waranch &Westcott, P.A SW 36th Avenue, Suite 100 Pompano Beach, FL I HEREBY CERTIFY that the foregoing order was posted to the DOAH website