Case Law Update – May 2013
CVS Caremark Corporation v. Kristen Latour, Fla 1st DCA Case No. 1D12-4972 (March 28, 2013)
The claimant, Ms. Latour, was injured while working for the employer in Palm Coast, Flagler County, Florida. Thus, the correct venue for this claim was the Daytona Beach District of the Office of Judges of Compensation Claims.
The claimant’s attorney attempted to take the deposition of the adjuster live/in-person in Palm Coast, Flagler County, Florida. The adjuster worked in Orange County, Orlando, Florida. The claimant’s attorney was attempting to require the adjuster to travel outside the county where she worked approximately 60 miles to Palm Coast, Flagler County. The claimant’s theory was that as the venue for the case was Flagler County, she had the right to depose the adjuster in-person in that county. The E/C/SA filed a Motion for Protective Order which was denied by the JCC.
The E/C/SA filed a Petition for Writ of Certiorari with the First DCA seeking to block the deposition from going forward. The Court held that while a claimant can be required to be deposed in the venue where the claim is pending, E/C/SA’s representative will not be required to travel a great distance and incur substantial expenses in order to be deposed by the claimant’s attorney. As a result, the Court granted the E/C/SA’s Petition for Writ of Certiorari and quashed the JCC’s Order which previously denied the E/C/SA’s Motion for Protective Order.
The above case makes it clear that an adjuster can only be deposed live/in-person in the county where he or she works. While a claimant’s attorney may require an adjuster to travel to any portion of the county where he or she is employed, an adjuster is never required to travel outside their home county. Any efforts by the claimant’s attorney to depose an adjuster outside the county where they work should be promptly met with a Motion for Protective Order.
PENALTIES FOR UNTIMELY PAYMENT OF BENEFITS
Bon Secours Health System v. Bonanno, Fla 1st DCA Case No. 1D12-4268 (March 28, 2013)
JCC Diane Beck entered an Order awarding claimant PTD supplemental benefits and E/C/SA paid penalties and interest based on the untimely payment of these benefits. The JCC made no specific findings as to whether the untimely payment resulted from conditions over which the E/C/SA had no control.
The First DCA reversed Judge Beck’s ruling. The Court indicated that the payment of penalties is excused where non-payment results from “conditions over which the E/C/SA had no control.” The Court indicated that excusable delay may result in penalties not being due. The First DCA specifically held that in order to assess the E/C/SA with penalties for late payment of benefits, the JCC must address whether or not the late payment resulted from conditions over which the E/C/SA had no control. Note that this ruling only applies to penalties. Interest on late payment of benefits is still due regardless of whether there was excusable neglect.
The above case clearly indicates that penalties are not automatically due every time there is a late payment of benefits. Before issuing payment of penalties, especially where the amount in question is a large sum, the adjuster should assess the reason for the late payment of benefits. If the late payment of benefits resulted from conditions over which the E/C/SA had no control, penalties should not be paid. Some possible instances where penalties might be excused could include computer system malfunction, or bad weather conditions resulting in office closure.