April 29, 2014

Contact: Eric W. Boyer, Esq.
Managing Partner/Operations
305-670-1101 Ext. 1023


Proof of Misrepresentation Ends Benefits for Two Compensable Accidents

Scot Nimmo

LAKELAND, Florida – Quintairos, Prieto, Wood & Boyer, P.A. Orlando office Workers’ Compensation lawyer, Scot G. Nimmo, successfully defended R&L Carriers, and Gallagher Basset Services, Inc., in a workers’ compensation trial, where numerous claims were brought before the Honorable Judge of Compensation Claims Margaret E. Sojourner. The claimant, a commercial truck driver, sought various workers’ compensation benefits due to injuries he had sustained in two separate accidents.
The claimant, a highly paid, 58 year old, long haul truck driver, was asleep in the bunk of a tractor trailer driven by a co-employee when the truck ahead leaked oil onto the roadway causing claimant’s vehicle to hit a Wimpey Poultry Company, Inc., truck carrying 1,200 live poultry.   Six months later claimant was again asleep in the bunk when a car pulled in front of, and was hit by the claimant’s tractor trailer.   Claimant was thrown from the bunk in both accidents and alleged closed head, neck, back, and shoulder injuries.    The employer accepted both accidents as compensable and provided treatment up to and including a recommendation for multilevel cervical fusion by the authorized treating neurosurgeon.   When that was not provided, claimant retained counsel and petitioned for the fusion.  He also petitioned for psychiatric care; when that was not provided, he began self-help treatment with a psychiatrist.
In deposition and to the authorized physicians, the claimant admitted minor prior shoulder and back pain but denied “anything serious or major.” The defense’s request for claimant’s primary care physician (PCP) records revealed several years of shoulder and upper extremity complaints resulting in a diagnosis of cervical disc disease, for which claimant was sent to a physical therapist.  The defense provided the PCP records to the various authorized physicians who agreed claimant had given them an incomplete medical history.  In light of the correct medical history, the two on-the-job motor vehicle accidents were deemed not to be the cause of claimant’s need for medical care.  The employer/carrier (E/C) denied all further benefits.
Following the E/C’s denial of benefits, the claimant had an independent medical examination performed by a neurosurgeon who recommended a cervical fusion and a lumbar spinal column stimulator implant.  Claimant applied for and was awarded Social Security Disability benefits. In deposition the claimant testified he had received no other money since the Florida workers compensation claim was denied.  The last demand before trial was for $500,000 based on permanent total disability and the multiple fusion recommendations.
Claimant’s employment application reflected he worked in Ohio more than 15 years before moving to Florida.  Records obtained from the Ohio Bureau of Workers’ Compensation revealed more than 10 years of worker’s compensation litigation involving claimant’s low back, shoulders and upper extremities.
At trial claimant testified he settled the first MVA third party case after the workers compensation claim was denied but had forgotten about the $100,000 settlement when he denied any income in deposition.  He admitted using his portion of those funds for new furniture and kitchen appliances, rather than medical care.  Claimant testified he had forgotten about the Ohio claims and had never known of the prior cervical diagnosis.  The physical therapist testified he discussed claimant’s neck complaints, diagnosis, exam results, history and treatment with the claimant several months before the first industrial accident.
The JCC found claimant had misrepresented his medical history to the various physicians.  The defense established this was done intentionally to secure workers compensation benefits.   All 17 petitions were denied or dismissed.   The defense is pursuing recovery of costs from claimant.

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