08-1374 ROGER DIEUJUSTE, v. J. DODD PLUMBING, INC. and FEDERATED MUTUAL INSURANCE COMPANY

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State: Florida

Court: Florida First District Court

Docket No: 08-1374

Case Date: 03/10/2009

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ROGER DIEUJUSTE, Appellant, v. J. DODD PLUMBING, INC. and FEDERATED MUTUAL INSURANCE COMPANY, Appellees. _____________________________/ Opinion filed March 10, 2009.

CASE NO. 1D08-1374

An appeal from an order of the Judge of Compensation Claims. Daniel A. Lewis, Judge. Date of Accident: May 6, 2005. Kimberly A. Hill, Fort Lauderdale, and Jack Dennis Card Jr. of Rosenberg & Rosenberg, Hollywood, for Appellant. David W. Evoy of Law Offices of David W. Evoy, Boca Raton, for Appellees.

PER CURIAM. Claimant appeals the Judge of Compensation Claims' (JCC) order disqualifying him from receiving workers' compensation benefits based on the JCC's finding that Claimant made false statements for the purpose of securing

workers' compensation benefits.

Claimant argues the JCC's findings are not

supported by competent, substantial evidence. We agree, and reverse. Background Claimant suffered a compensable workplace accident which resulted in two knee surgeries and, ultimately, a recommendation for a total knee replacement. Following his surgeries, Claimant was provided crutches and a cane to assist with ambulation. Dr. Chayet, an authorized orthopedist, advised Claimant to "wean off" the cane, and Claimant obliged but continued to use a crutch or cane on occasion. Throughout the course of the proceedings, Claimant was deposed twice, and both times testified he was capable of walking and standing without a cane or crutch, and he did so on a regular basis. Claimant testified he used a cane or crutch when he felt pain, but he could walk up to one-half of a mile without any assistive device. The evidence shows Claimant regularly, but not always, brought a cane or crutch to his medical appointments, even when he was ambulating well. The E/C hired a private investigator who, on the morning of November 16, 2006, obtained video surveillance of Claimant walking short distances and assisting his wife with laundry without assistive devices. Claimant admitted he was capable of performing these activities. Video surveillance taken later that 2

afternoon showed Claimant grabbing a crutch and putting it in his van to attend an appointment with Dr. Novick. The critical piece of video shows Claimant walking to the entrance of Dr. Novick's office, at which point he is handed a crutch, which he begins to use. The E/C raised a misrepresentation defense based on Claimant's selective use of the crutch as seen on the video. All of the physicians who testified stated there was nothing on the video which was inconsistent with Claimant's statements or presentation to them, and Claimant's activities in the video were consistent with his objective, painful knee condition. Dr. Novick did not testify, but his report from November 16, 2006, reflects Claimant complained of "severe pain" and stiffness in his left knee. In the physical examination portion of the report, the doctor noted: "He is ambulating with. . . a crutch on his right side and significant decreased stance phase on the left lower extremity. He is reluctant to weight bear on the left lower extremity . . . ." At the hearing, Claimant testified he told Dr. Novick he was "afraid" to walk on the left knee and was concerned about causing further damage, but that Dr. Chayet had told him to walk on the knee, and he does so. Claimant also testified he has "problems" standing and putting weight on his left leg, but he could do so without assistive devices. 3

The JCC entered an order denying workers' compensation benefits, finding Claimant was attempting to portray himself as "much more severely disabled th[a]n the surveillance otherwise shows." Analysis While this court is deferential to the broad fact-finding powers of a JCC, such power is not without constraints. See Fritz v. Courtyard by Marriott, 592 So. 2d 1167, 1169 (Fla. 1st DCA 1992). A JCC's findings must be in accordance with the requirements of chapter 440, and be supported by competent, substantial evidence. See Quiroz v. Health Cent. Hosp., 929 So. 2d 563, 565 (Fla. 1st DCA 2006) (reversing a JCC's finding of disqualifying misrepresentation where statements were false, but not made for purpose of securing compensation). The workers' compensation statute provides that it is unlawful for any person to make, or cause to be made, any false, fraudulent, incomplete, or misleading oral or written statement for the purpose of securing workers' compensation benefits. See

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