STATE OF FLORIDADIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF THE JUDGES OF COMPENSATION CLAIMSGAINESVILLE DISTRICT OFFICE

Estanislao Perez,Employee /Claimant,

vs.

Alson Auto, Inc /Employers InsuranceCompany of Nevada,

Employer /Carrier /Servicing Agent./

OJCC Case No. 13- 026850MRHAccident date: 12/4/2012Judge: Marjorie Renee Hill

FINAL COMPENSATION ORDER

THIS CAUSE came on for a final hearing on January 28, 2016.1 Claimant wasrepresented by Albert Marroquin and the Employer /Carrier was represented by Andrew Borahand Joseph Kessler. The hearing and this Final Compensation Order resolve the Petitions forBenefits filed August 14, 2015 and October 16, 2015.

Claimant seeks to establish compensability of, and authorization of treatment for, his leftelbow, left knee and back, as resulting from the compensable December 4, 2012 work accident.He also seeks penalties and interest on late payment of impairment benefits.

Compensability and Treatment of Left Elbow, Left Knee and Back

At trial, Claimant testified, in relevant part, that he was injured when the pin came out ofa hydraulic jack, injuring his left middle and ring fingers. He testified the force of the pincoming out of the jack propelled him against steel and metal in the shop, and to the floor wherehe injured his left elbow, left knee and back. He testified he was yelling from pain and was onthe floor for approximately 30 minutes, with no one offering help. Claimant further testifiedthat, from the date of the accident to the present, he told "anyone who would listen," includingauthorized doctors, that he injured his left elbow, left knee and back in the work accident.

Conversely, the employer witnesses testified they saw the accident when it occurred.They did not see Claimant fall to the floor, and he did not complain of any injuries to his leftelbow, left knee and back. No one testified they saw Claimant on the floor or heard himcomplain of injuries to his left elbow, left knee and back.

To the extent Claimant' s testimony differs from the other witnesses regarding his actionsand complaints at the time of the accident and afterwards, I reject Claimant's testimony asunpersuasive. The medical records from Claimant' s authorized providers do not contain anyreference to complaints of pain or injuries related to the left elbow, left knee and back. Therecords of Ortho Now indicate authorization was given to treat Claimant' s left thumb, but that

1 The parties' stipulations, claims, defenses, witnesses and exhibits, all of which were consideredin rendering this Order, are listed in Appendix A attached to this Order.

the correct body parts injured were the left middle and ring fingers. From this record I canreasonably infer Claimant informed the physician at Ortho Now that the injuries he actuallysustained were different from the body part authorized for treatment, and the physiciandocumented Claimant's correction. Thus, if Claimant had injured his left elbow, left knee andback in the work accident, logic suggests that information would also be contained in the medicalrecords. However, even if I were to infer the physician did not document thosecomplaints /injuries because he was not authorized to treat them, the remaining record evidencedoes not support Claimant' s testimony that he constantly complained "to anyone who wouldlisten" that he also injured his left elbow, left knee and back in the work accident.

Claimant filled out a medical history form indicating his current complaints. He did notindicate he had pain or injuries to his left knee, left elbow or back. Notably, Claimant speaksSpanish only, and the form is in Spanish. He filled out the form himself, and testified thesignature on the form is his. He further testified all of the information on the two page form iscorrect except for those places where he marked "no" for "joint pain, neck pain, back pain, orother." (Garcia depo. p. 13; E/C ex 2 to Garcia depo.).

Finally, Claimant has been represented by the same law firm since November 18, 2013.During that time, Claimant, through counsel, filed four Petitions for Benefits without mentioningan injury to the left elbow, left knee, and back. He filed a total of seven Petitions for Benefitsbefore seeking compensability and treatment of the left elbow, left knee and back. In a March18, 2015 Pre -trial Stipulation, Claimant's counsel indicated the left hand was the body partinjured in the work accident. No reference was made to injuries to the left elbow, left knee andback. If Claimant had been complaining of injuries and pain in the left elbow, left knee and backfrom the date of the accident to the present to "anyone who would listen," logic suggests thoseinjuries would have been included in the first four Petitions for Benefits, treatment for thoseinjuries would have been sought in the first seven Petitions for Benefits, and those injuries wouldhave been included in the March 18, 2015 Pre -trial Stipulation.

When considering the evidence in its entirety, I reject Claimant's testimony that heinjured his left knee, left elbow and back in the work accident, as unpersuasive. See Wintz v.Goodwill, 898 So. 2d 1089, 1093 (Fla. 14 DCA 2005) (noting it is the JCC's responsibility toevaluate and weigh evidence); Morgan v. Cintas Corp., 959 So. 2d 758 (Fla. 1st DCA 2007)(noting it is within JCC's discretion to determine credibility of witnesses and weigh evidence).

Penalties on Late Payment of Impairment Benefits

Claimant received three impairment benefit payments from June 17, 2015 through July28, 2015, without a problem. However, he testified he did not receive the check issued onAugust 4, 2015 for the time period of July 29, 2015 through August 11, 2015. All of thesechecks were mailed to the same address. Based on the persuasive evidence, the adjuster was notinformed that Claimant did not receive the check until the parties' Mediation on October 15,2015. At that time, she placed a stop order on the issued check, and she issued another check onOctober 21, 2015, six days after being informed that Claimant did not receive the check. Basedon information Claimant provided the adjuster, the adjuster sent the reissued check to a differentaddress than the address used for first three checks Claimant received.

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Section 440.20(6), Florida Statutes, governs penalties on late payment of compensationbenefits. See Serv. Mgmt. Sys. v. Hood, 790 So.2d 578, 580 (Fla. 1st DCA 2001) (applyingsection 440.20(6)); E. Indus., Inc. v. Burnham, 750 So.2d 748, 749 -52 (Fla. 1st DCA 2000)(same). That provision provides an E/C who pays an installment of compensation more thanseven days after it becomes due "shall" also pay a penalty of twenty percent of the unpaidinstallment "unless such nonpayment results from conditions over which the employer or carrierhad no control." § 440.20(6), Fla. Stat. (2012) (emphasis added); Pupo v. City of Hialeah, 91 So.3d 925, 926 -27 (Fla. 1st DCA 2012); Jones v. City of St. Petersburg, 46 So.3d 637 (Fla. 1st DCA2010) (holding penalties should be excused where untimely payment resulted from conditionsover which the E/C had no control). Here, Claimant's missing impairment benefit check wasmailed to the same address to which the other checks were mailed. The adjuster has no controlover whether checks mailed to the correct address become missing in the mail. The adjusterreissued the check within six days of learning Claimant did not receive the missing check. Whenconsidering the persuasive evidence, the adjuster timely paid the impairment benefits once shebecame aware that Claimant did not receive the check. Accordingly, no penalties are due.

Interest on Late Payment of Impairment Benefits

An E/C who does not pay an installment of compensation when it becomes due "shallpay interest thereon at the rate of 12 percent per year from the date the installment becomes dueuntil it is paid ... The interest payment shall be the greater of the amount of interest due or $5."See § 440.20(8), Fla. Stat. (2012). This subsection is not conditioned on whether thenonpayment results from conditions over which the E/C had no control. See Pupo, 91 So. 3d at927. Here, Claimant received his impairment benefit check approximately two months after itbecame due. Based on the plain language of the statute, the E/C owes interest on the latepayment. See id. Based on the foregoing, it is hereby,

ORDERED AND ADJUDGED that the claims for compensability, evaluation, andtreatment of the left elbow, left knee and back are DENIED. The claim for penalties on latepayment of impairment benefits is DENIED. The claim for interest on late payment ofimpairment benefits is GRANTED. The claim for costs and attorney fees is DENIED.

DONE and ELECTRONICALLY SERVED this 4th day of February, 2016.

Marjorie Renee HillJudge of Compensation Claims1900 S.W. 34th Street, Suite 202Gainesville, Florida 32608(352)955 -2244; www.jcc.state.fl.us

Employers Insurance Company of Nevada; erush @employers.comAlbert Marroquin; Amarroquin@zaldivarpa.com,denise.zaldivarpa@gmail.comRichard E. Zaldivar; MAXZZ @BELLSOUTH.NET, ZALDIVARPA @GMAIL.COMAndrew R. Borah, Esquire; aborah @hrmcw.com,sfournier @hrmcw.comRene Lopez; rlopez@flpalaw.com,zbrennan@flpalaw.com

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APPENDIX A

Stipulations1. An employer /employee relationship existed on the date of accident.2. Workers' compensation insurance coverage was in effect on the date of accident.3. Accident is accepted as compensable.4. Injury to the left thumb, middle and ring fingers was accepted as compensable.5. Base AWW is $353.53

Claimant Issues1. Compensability, evaluation and treatment of left elbow, left knee and back.2. Penalties, interest on late paid impairment benefits.3. Costs and attorney's fees.

Employer /Carrier Defenses1. Claimant did not injure his left elbow, left knee or back on the date of the accident.2. The work accident is not the major contributing cause of Claimant's need for treatment.3. No penalties, interest, costs and attorney's fees due or owing.

Joint Exhibits1. Payout Ledger2. Pre -trial Stipulation

Claimant Exhibits1. Deposition of Dr. Michael Langone, w /medical report.

Employer /Carrier Exhibits1. Deposition and attachments of Frank Garcia P.A., taken on January 15, 2016.2. Medical records of Ortho Now3. Medical records of Dr. Felix Freshwater4. Petitions for Benefits filed November 18, 2013, December 1, 2014, January 8, 2015, and

March 20, 2015.5. Uniform Pretrial Stipulation filed on March 18, 2015.6. Deposition of Estanislao Perez, with attachments, taken January 27, 2016.

Judge Exhibits1. Claimant trial memorandum (argument only)2. E/C trial memorandum (argument only)

Live Testimony1. Helder Martin2. Sammy Morales3. Herman Ramos4. Becky Hudson5. Estanislao Perez

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