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LLC v. Mustelier

Florida Court of Appeals, First District

January 15, 2020

2K SOUTH BEACH HOTEL, LLC and Continental Indemnity Co., Appellants,
v.
Marlene MUSTELIER, Appellee.

         Date of Accident: September 8, 2013.

Page 159

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         On 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.

          Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellee.

         ON MOTION FOR REHEARING AND WRITTEN OPINION

         B.L. Thomas, J.

         In this 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.

         Claimant, 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.

         Just 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

Page 160

right arm and hand in an unrestricted manner. When deposed the day before the final hearing, Claimant testified she had never used a cane.

         At 5:11 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.

         At the 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 ...


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