[-] Home Depot Powers Ferry Road

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Home Depot Powers Ferry Road

Approximately seven years afterwards the accident, an afflicted agent who connected to assignment for the employer approved connected benefits. The afflicted agent had not accustomed medical affliction back 2005 and the carrier dedicated the affirmation alleging the statute of limitations had expired. The Appellant argued the carrier was estopped from asserting the aegis for abortion to accede with the approved requirements acute notification of his approved rights. The afflicted agent testified he had not accustomed the appropriate documentation. The adjuster testified an advisory 'packet' had been beatific to the claimant. However, the absolute abstracts allegedly beatific to appellant were not presented to the cloister for analysis and the Judge begin he could not actuate whether the abstracts beatific to the appellant independent the appropriate information. Consequently, the Judge bent the afflicted agent was blind of his rights, the carrier's SOL aegis was DENIED and, in ablaze thereof, the allowances were GRANTED.

STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF JUDGES OF COMPENSATION CLAIMS FORT LAUDERDALE DISTRICT OFFICE EMPLOYEE: Charles (Charlie) Freeman 2950 NW 26th Street Fort Lauderdale, FL 33311 EMPLOYER: The Home Depot 2455 Paces Ferry Rd. NW Atlanta, GA 30339 ATTORNEY FOR EMPLOYEE: Neal Falk, Esquire 100 S.E. 3rd Avenue, Seventh Floor Fort Lauderdale, FL 33394 ATTORNEY FOR EMPLOYER/CARRIER: David C. Halpern, Esquire 2875 NE 191st Street, Suite 802 Aventura, FL 33180 CARRIER: Liberty Mutuallnsurance Group P.O. Box 31204 Tampa, FL 33631 OJCC No: D/A: JUDGE: 1O-016028DAL 09/17/2004 Daniel A. Lewis FINAL COMPENSATION ORDER AFTER DUE NOTICE to the parties, a Final Merits Audition was conducted afore tlle undersigned Judge of Advantage Claims (JCC) on August 30,2011 in Lauderdale Lakes, Broward County, Florida. The address for allowances which came on for acknowledgment was filed on August 4, 201 O. The parties assured as follows: A. The undersigned has administration of the parties and oftlle accountable matter. B. Venue lies in Broward County, Florida. C. Apprehension of audition was appropriate afforded to the able parties. D. The claimant's blow of September 17, 2004 was initially accustomed by the employer/carrier as a compensable occurrence, and the claimant's larboard deride abrasion was additionally 1accepted. However, the employer/carrier contends that claimant's affirmation is barred by cessation of the applicative statute oflimitations. E. At this Final Hearing, the parties assured the date ofthe claimant's accomplishment of best medical advance (MMI) and balance abiding concrete crime were, respectively, January 28, 2005 and 4%, as per orthopedic surgeon Dr. Blum. F. Affirmation was fabricated for: I. Authorization of a chase up appointment with a duke specialist for the claimant's larboard thumb. 2. Additionally claimed were attorney's fees and costs. G. TIle employer/carrier asserted as defenses that: 1. The statute of limitations has run. 2. The employer/carrier additionally asserted a accepted abnegation to the affirmation for attorney's fees and costs. H. At this Final Hearing, the parties assured that if I begin the statute of limitations did not bar tlns claim, the employer/carrier would accommodate the claimed chase up evaluation. Consequently, the alone affair afore me is whether the burning affirmation is barred by cessation of the statute of limitations. Afterwards accurate application and analysis ofthe testimony, documentary affirmation and altercation presented, the afterward are my allegation of ultimate facts and abstracts oflaw: I. This appellant abiding his compensable workers' advantage blow on September 17,2004. At that time, appellant was appropriation and accustomed plywood for the employer herein, Home Depot, back he afflicted his larboard thumb. Appellant testified he is appropriate duke dominant. 22. Appellant testified that afterwards the accident, he could not angle the thumb. Appellant came beneath the affliction of orthopedic surgeon Dr. Blum, who was accustomed by the employer/carrier to treat. Dr. Blum performed anaplasty to the claimant's larboard wrist and thumb. Appellant testified the anaplasty was to the ligaments in his larboard deride and wrist. 3. Appellant testified he continues to acquaintance affliction off and on in the larboard thumb. He testified that at times, the deride tightens up. Appellant testified he wants to acknowledgment to a doctor for a chase up evaluation. The appellant has not apparent a doctor for this abrasion back 2005. As indicated, the parties assured the appellant accomplished his MMI as of January 28, 2005 with a balance 4% abiding impairment, as per Dr. Blum. Appellant additionally testified he is still active at the Home Depot. 4. The employer/carrier contends the claimant's address for allowances filed on August 4, 2010 is barred by the cessation of the applicative statute oflimitations, specifically, sections 440.19(1) and (2), Fla. Stat. Those subsections accommodate that all petitions for allowances shall be barred unless the address is filed aural 2 years afterwards the date on which the agent knew or should acquire accepted that the abrasion arose out of assignment performed in the advance and ambit of application and that the acquittal of apology or capacity of alleviative analysis tolls the limitations aeon for 1 year from the date of such payment. The affirmation reflects claimant's blow occurred on September 17, 2004, and the appellant has not accustomed medical affliction for this abrasion back 2005. Although the appellant objected to the affidavit of Heather Powers, the adjuster for Sedgwick Claims Management Services (Sedgwick) on the base of hearsay, the affidavit of Timothy Martin, the adjuster for Liberty Mutual Insurance Group (Liberty), reveals 3no apology allowances acquire been paid back at atomic February, 2009 back Liberty affected the administration ofthis claims file, and claimant's address for allowances was filed on August 4,2010. 1 5. Appellant contends he was never brash ofthe limitations aeon beneath area 440.19, Fla. Stat., and that the employer/carrier should accordingly be estopped from adopting the statute oflimitations defense, in accordance with area 440.19(4), Fla. Stat. Case law instructs us that, already the employer/carrier asserts a statute of limitations defense, the appellant has the accountability of proving the employer/carrier should be estopped from adopting the defense. Crutcher vs. School Board of Broward County, 834 So. 2d 228 (Fla. 1st DCA 2002). Beneath the case law, it is not abundant for a appellant to authorize alone that the employer/carrier bootless to accede carefully witll either area 440.185 or 440.055, Fla. Stat., to estop the employer/carrier's statute of limitations defense. Crutcher vs. School Board of Broward County, 834 So. 2d at 229,230. Instead, the accountability ofproof is on the appellant to appearance that he lacked absolute ability of any pertinent appropriate beneath the workers' advantage law, absolute or procedural, and, if so, whether such benightedness accounted for his abortion to access medical affliction aural tlle limitations aeon or to appropriate book his address for benefits. Area 440.19(4), Fla. Stat., Crutcher vs. School Board of Broward County, 834 So. 2d at 229, Fontanills vs. Hillsborough County School Board, 913 So. 2d 28 (Fla. 1st DCA 2005), Palmer vs. McKesson Corooration, 7 So. 3d 561 (Fla. 1st DCA 2009). The accountability of affidavit on the appellant to appearance estoppel is by a advantage of the evidence, unless the employer/carrier has complied with both sections 440.185 and 440.055, Fla. Stat., in which case the appellant has a college accountability of proof, that of bright and acceptable evidence. Crutcher, 834 So. 2d at 230. 1 Claimant's workers' advantage affirmation was ahead handled and adapted by Sedgwick Claims Management Services (Sedgwick). In February, 2009, Sedgwick transferred its claims files on Home Depot cases to Liberty Mutual Insurance Group (Liberty). 46. Here, appellant denied accepting accustomed any affidavit or advice from the carrier, either Sedgwick Claims Management Services or Liberty Mutual Insurance Group, apropos his rights, benefits, or procedures for accepting allowances beneath the Florida Workers' Advantage Law, as appropriate by area 440.185(4). Specifically, appellant testified he was never provided apprehension as to the statute of limitations nor brash what ability appear ifhe bootless to appropriate access medical affliction or book a address for benefits. Appellant added testified this abridgement of ability was the acumen he did not access medical affliction or book his address for allowances aural the limitations period. 7. In response, the employer/carrier presented the degradation affidavit of Heather Powers, claims abettor and medical alone adjuster for Sedgwick. The appellant objected to the affidavit ofthis attestant on the base oflack of claimed 1mowledge and hearsay. Ms. Powers testified from Sedgwick's account or computer book (log) notes, which were supplied to her by admonition for the employer/carrier, back Sedgwick was no best in control of this claimant's claims file. Ms. Powers absolutely did not acquire personallmowledge of what advice was initially beatific to the appellant and when, back she testified she was not the being amenable for assuming that task. Beneath the business annal barring to the buzz rule, however, it is not all-important to present affidavit from the being who absolutely empiric the bulk recorded or who fabricated the entry, characters or record. Instead, a babysitter or added able attestant who has the all-important ability may lay the foundation for the acceptance of the record. Area 90.803(6), Florida Affirmation Code, C. Ehrhardt, Florida Evidence, area 803.6 (2011 Edition). 8. I find, however, that Ms. Powers was not appropriately able as a business annal babysitter beneath area 90.803(6), Fla. Stat., and accordingly her affidavit as to what advice may acquire been beatific to the appellant and back is exceptionable hearsay. Annal of consistently 5conducted business action are acceptable beneath area 90.803(6) ifit is apparent that they were (l) fabricated at or abreast the time ofthe accident recorded, (2) by, or from advice transmitted by, a being with knowledge, (3) kept in the advance of a consistently conducted business action and (4) it was the approved convenance of that business to accomplish such a record. Area 90.803(6), Fla. Stat., German vs. Ryta Food Corporation, 65 So. 3d 20 (Fla 1st DCA 2011). Although the affirmation presented actuality supports a cessation that the aboriginal three elements were established, no affidavit was adduced as to the fourth element; that is, that it was the approved convenance of Sedgwick to accomplish such a record. Consequently, the all-important foundation for the acceptance ofthis affirmation was not laid. German vs. Rvta Food Corporation, 65 So. 3d at 20.2 9. Alike were I to fmd Ms. Powers' affidavit as to what advice was beatific to the appellant and back to be admissible, no archetype of what was purportedly beatific to the appellant was offered into evidence, so I cannot actuate what advice as to the limitations aeon was included therein. Ms. Powers testified that the appellant was beatific a Florida workers' advantage "information packet" on September 21, 2004 by the claims abettor at that time, which Ms. Powers testified included advice as to the statute oflimitations. However, beneath the statute and the case law, appellant charge be mailed "an advisory advertisement ambience alternating in bright and barefaced accent an account of his or her rights, benefits, procedures for accepting allowances and assistance... beneath the Florida Workers' Advantage Law." Area 440.185(4), Fla. Stat., Fontanills vs. Hillsborough County School Board, 913 So. 2d at 30, Hanson vs. Florida Hospital, 946 So. 2d 601 (Fla. 1st DCA 2006). Back I cannot actuate whether such an advisory advertisement was mailed to the appellant or alike what advice as , It should be acclaimed that the affidavit ofTimothy Martin, the claims adjuster for Liberty, could not authorize the assert or foundation for the accommodation of Sedgwick's records. A annal babysitter of a additional business, alike ifit has control ofthe annal of the aboriginal business, would not acquire claimed ability ofhow the aboriginal business kept its annal and accordingly could not authorize the basal requirements. C. Ehrhardt, Florida Evidence, area 803.6 (2011 Edition). 6to the claimant's rights and allowances was independent in what purportedly was sent, I [rod the employer/carrier bootless to accede with the requirements of area 440.185, Fla. Stat. 10. Based on the affirmation presented, I acquisition the appellant has accustomed he was blind ofthe approved requirements, including the claim that he charge book his address for allowances aural one year from the aftermost date he was furnished alleviative treatment, and that the abridgement of such ability was the account of his abortion to access medical affliction or book his address for allowances aural the limitations period. Fontanills vs. Hillsborough County School Board, 913 So. 2d at 31. I acquire the claimant's affidavit in this regard. I acquisition the employer/carrier is estopped from asserting the statute oflimitations aegis and that the claimant's address for allowances filed on August 4,2010 is not barred by the cessation ofthe statute oflimitations. Pursuant to the parties' stipulation, the employer/carrier shall accommodate the requested chase up appraisal with a duke specialist for the claimant's larboard thumb. II. Administration shall be retained and aloof over the claimant's alms to balance his reasonable attorney's fees and taxable costs from the employer/carrier, pursuant to area 440.34, Fla. Stat. Administration shall additionally be aloof over the bulk of such fees and costs due. DONE AND ORDERED at Lauderdale Lakes, Broward County, Florida this <3-(;-3 I day of August, 2011. Honorable Daniel A. Lewis Judge of Advantage Claims 7CERTIFICATE OF SERVICE I HEREBY CERTIFY that a accurate archetype of the above Final Advantage Order was furnished this 3 \c;:-r day of August, 2011 by cyberbanking manual to the parties' admonition of almanac and by U.S. mail to the parties. 8

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