2K SOUTH BEACH HOTEL, LLC and Continental Indemnity Co., Appellants,
Marlene MUSTELIER, Appellee.
Accident: September 8, 2013.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
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
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
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