2K South Beach Hotel, LLC and Continental Indemnity Co., Appellants,
Marlene Mustelier, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
of Accident: September 8, 2013.
appeal from an order of the Judge of Compensation Claims.
Jeffrey I. Jacobs, Judge.
Barbara K. Case of The Law Office of Barbara K. Case, P.A.,
North Palm Beach, for Appellants.
L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for
ON MOTION FOR REHEARING AND WRITTEN OPINION
workers' compensation case, the Employer/Carrier (E/C)
appeal an order of the Judge of Compensation Claims (JCC)
which awarded benefits. We deny the motion for rehearing, and
grant the motion for written opinion to explain why we affirm
the order and reject the five issues asserted on appeal.
a housekeeper for the E/C, developed complex regional pain
syndrome (CRPS) after a right shoulder injury on September 8,
2013. The E/C accepted the CRPS as compensable, and
authorized doctors who prescribed water therapy and
psychiatric treatment. When the E/C authorized only six
weeks' worth of water therapy and denied the
psychiatrist, Claimant filed petitions for benefits (PFBs)
seeking those benefits.
three weeks before the final hearing, the date of which had
previously been continued, an authorized doctor testified in
deposition that when he had last seen Claimant in-office she
was ambulating with a cane, which was not prescribed. This
information was new; it was not in the doctor's medical
notes. In response to this new development, the E/C obtained
surveillance of Claimant in the week before the final
hearing, which did not show her using a cane but showed her
using her right arm and hand in an unrestricted manner. When
deposed the day before the final hearing, Claimant testified
she had never used a cane.
a.m. on the morning of the final hearing, the E/C moved to
admit the surveillance or alternatively to continue the final
hearing. A few minutes later, they moved to amend the
pretrial stipulation (to add a misrepresentation defense and
to "clarify" their witness and exhibit lists to
include the surveillance evidence) or alternatively to
continue the final hearing. At 8:25 a.m., they filed the
surveillance report, and they gave it to Claimant "when
we got here this morning" for the final hearing.
final hearing, the E/C proffered the surveillance evidence,
and elicited testimony from Claimant that, even though she
has pain when her right hand is touched, her right hand had
nail polish on it, applied "four or five days ago"
not professionally but by her friend. In the final order, the
JCC denied the E/C's motions, finding prejudice to
Claimant and no good cause for the E/C's delay, and
awarded Claimant the requested benefits. After granting the
E/C's motion for rehearing in part, the JCC amended the
order to add a discussion of "bad faith" to the
analysis of good cause and clarified that he found the late
addition of a misrepresentation defense would violate
Claimant's due process rights.
appeal, the E/C first argue that the JCC should have admitted
the surveillance evidence, or at least should have granted a
continuance. This argument fails because (a) the undisputed
facts constitute competent substantial evidence (CSE) to
support the finding that Claimant was prejudiced by surprise
and that the prejudice was incurable, see Binger v. King
Pest Control, 401 So.2d 1310 (Fla. 1981); (b) even
though the record supports the JCC's finding that there
is no allegation the E/C acted in bad faith, the primary
inquiry is whether there is prejudice to the objecting party,
see Boyle v. JA Cummings, Inc./FARA, 212 So.3d 1060,
1061 (Fla. 1st DCA 2017) (holding that JCC's job when
faced with late discovery is to "consider prejudice, of
which good cause is but one component"); and (c) the
record-particularly the fact that the case had previously
been continued-supports the JCC's finding that to grant
the E/C's motions would work against efficiency.
the E/C argue that the JCC erred as a matter of law by
denying the motion to amend the pretrial stipulation. But the
standard of review is abuse of discretion, see E.
Airlines v. Griffin, 654 So.2d 1194 (Fla. 1st DCA 1995)
(reviewing for abuse of discretion JCC's ruling on motion
to amend pretrial stipulation), and the JCC did not abuse his
discretion in this case where the motion was not a mere
"clarification" of the witness list, because the
original pretrial stipulation listed only "Surveillance
rep, if any," in contravention of the instructions to
"[l]ist the specific and full names of all
witnesses" as well as to specify "live
or by deposition," and the lateness of
the motion to add a misrepresentation defense was not
excusable. The misrepresentation defense concerned
Claimant's inability to use her arm, but the lateness was
caused entirely by the timing of this particular
surveillance. This instance of surveillance was late only
because it was conducted to determine whether Claimant was
using a cane, but it cannot be used to allege
misrepresentation regarding cane use because it does not
contradict Claimant's testimony that she was not using a
cane. What happened here was nothing more than the E/C, upon
receipt and review of the surveillance, deciding to change
their litigation strategy-which does not justify amending a
pretrial stipulation. See Marin v. Aaron's Rent To
Own, 53 So.3d 1048, 1050 (Fla. 1st DCA 2010) ("[A]
party's mere change of litigation strategy, without more,
provides insufficient grounds to set aside a binding
the E/C argue that the JCC should have let them call the
surveillance representatives live as rebuttal or impeachment
witnesses to Claimant's testimony that even to touch her
right hand is painful, because it was evident at the hearing
that Claimant's hand was manicured. The E/C has not
demonstrated reversible error, because Claimant herself
acknowledged under oath that her hand was manicured, the E/C
did not allege that the surveillance ...