Kagan Notable Appellate & Trial Outcomes

The following cases, culled from the last several years (along with some older “campaign” cases), are described under relevant categories -- a few “short form” opinions are listed because of their great significance had they gone ‘the other way.’ Some cases are listed under multiple subject headings. In the weeks to come I’ll add some of the older cases that are still cited and include a few notable “losers” in the belief they reflect the good fight, so to speak.
As a personal note: I think these squibs are well worth pursuing as I believe any interested stakeholder will come away with some new and useful insights. I will let the reader conclude what the state of the Act might be had these cases “gone the other way:” I submit they are a testament to my career-long and ongoing mission -- on behalf of Florida’s employers and carriers -- exclusively.

I. District and Supreme Court Level, Including Certiorari Cases

  • Big Ticket ‘Medical’ Items;
    • A campaign of sorts was waged to bring discipline to the previously chaotic arena of extraordinary medical benefit awards. Combined, these cases help install requirement of direct evidence of medical necessity, versus mere benefit comfort or convenience (of, say, a ‘larger’ or ‘newer’ van), and that the device -- whether home modification, van or hot tub -- must be uniquely attributable to injury and not a need common to all others (vitamins, wholesome foods etc.) – – and -- only that portion uniquely attributable to injury is compensable, and Judge cannot delegate to (profit minded vendors) the task of making particular determinations such as size, materials, furnishings etc., which require individual showings of actual medical necessity versus personal preferences of physicians (“I think he’d be more comfortable stretching out in a larger van” or “anything to get out more often, go to the ballpark etc.”). Note: see my related article published June 2009 in the national “For The Defense,” Journal of DRI. All cases resulted in full opinions and continue to be cited: in chronological Order;
    • Aino's Custom Slip Covers v. DeLucia, 533 So. 2d 862 (Fla. 1st DCA 1988);
    • Diamond R. Fertilizer v. Davis, 567 So. 2d 451 (1st DCA 1990);
    • Timothy Bowser Const. Co. v. Kowalski, 605 So. 2d 885 (Fla. 1st DCA. 1992);
    • All Clear Locating Servs., Inc. v. Shurrum, 855 So. 2d 1208 (1st DCA 2003)
  • CONSTITUTIONAL and other direct TEST CASES: defending the law per se;
    • Successful defense against test case “from ground up” focused solely on challenging constitutionality of Florida’s WC Impairment Benefits statute (including attempted rehearing en banc and Certiorari), notably, prosecuted by former chief Judge of 1st DCA, Richard W. Ervin, III: (Per curiam affirmed, short form opinion.) Frost v. Young Animal Hosp., 178 So. 3d 400 (Fla. 1st DCA 2015), reh’g denied (Nov. 19, 2015), cause dismissed, 192 So. 3d 36 (Fla. 2015):
    • Successful defense against essentially a claimant’s bar’s test case, one of first impression, seeking interpretation from court allowing imposition of sanctions on both Employers and Carriers under chapter 57.105, in the Worker’s Compensation setting which would have enabled ‘slings and arrows of misfortune’ to be tossed about everywhere. Court ruled in E/C’s favor via written opinion. Lane v. Workforce Bus. Services, 151 So. 3d 537 (Fla. 1st DCA 2014), reh’g denied (Dec. 15, 2014)
    • Successful defense focused on challenging constitutionality of 104 week limit on temporary benefits for psychiatric injury in a test case, notably, brought by Mark Zientz; per curiam affirmed, short form opinion. Davis v. Nascar Holdings, Inc., 139 So. 3d 303 (Fla. 1st DCA 2014) (Note: Court receded from this doctrine in later cases.)
    • Successful defense against direct challenge to the constitutionality of the then-new fraud/misrepresentation statute, where small- consequence misrepresentations (i.e., re ‘mileage,’ but it was a significant variation from the truth) resulted in forfeiture of “all” benefits (in major injury case), notably, brought by Mark Zientz. The court ruled: the measure is constitutional, and within it there is no measuring: any qualifying misrepresentation results in forfeiture of all benefits. Opinion at Wright v. Uniforms for Indus., 772 So. 2d 560 (Fla. 1st DCA 2000)
  • Dual Employment:
    • Two carrier case where adversary carrier’s defenses were stricken for discovery violations, but more important:  JCC was reversed for finding “dual employment” present on a conventional statutory contractor/subcontractor worksite, avoiding a serious disruption in stability of liability in such worksites had this decision gone the other way. Roof Painting by Hartzell, Inc./Summit Holdings-Claims Ctr. v. Hernandez, 158 So. 3d 709 (Fla. 1st DCA 2015)
  • EMA
    • The landmark EMA case, one of first impression, established the JCC could not decline to appoint an EMA, having opined the then-new statutory player invaded his adjudicatory territory: the court reversed, observing that to accept the JCC’s reasoning, i.e., that he was fully capable of resolving the issue, would invade the province of the legislature. The court also ruled that even as late as trial is not ‘too late’ for E/C to request an EMA: the reasonableness of timing of request is triggered by date medical conflict first emerges. Finally, the court did not permit JCC’s effectively sweeping a qualifying conflict in medical opinions under the rug, referencing the JCC’s “surprising claim” there was no conflict. Palm Springs Gen. Hosp. v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997)
    • The court reaffirmed one of the underlying messages in Cabrera: JCC may not reject EMA opinion on demonstrably insubstantial grounds; after having earlier signaled it will not become involved in second-guessing JCC’s who reject EMA opinions, the court was persuaded to reverse in response to the undersigned’s argument reinforcing the central purpose for the EMA; preempting litigation, not adding to the cost and prolonging the pendency of cases via treatment of EMA as basically a necessary speedbump ‘on the way’ to trial, and so here the court signaled closer scrutiny will be given where necessary so that legislative goal is realized. Certistaff, Inc. v. Owen, 181 So. 3d 1218 (Fla. 1st DCA 2015), reh’g denied (Jan. 25, 2016)
    • Notable revision in EMA law: where Claimant (represented by Mark Zientz) petitioned for writ of certiorari to block arguably “late” JCC appointment of EMA (requested by E/C only eight days before trial), the court refined the concept of EMA-request ‘lateness.’ In deference to statutory power of JCC to appoint EMA even on her own motion: whereas the JCC could have declined to appoint one under the circumstances, there was no departure from the law in approving E/C’s late-made request. Rubio v. Gymboree Corp., 178 So. 3d 81 (Fla. 1st DCA 2015)
    • This Supreme Court case established, on behalf of the undersigned’s combined clients (American Crop Protection Association; Chemical Manufactures’ Association; Florida Fruit and Vegetable Association; Florida Fertilizer and Agrichemical Association; Florida Citrus Mutual and Gulf Citrus Growers Association), that the “Frye” test was applicable to Florida workers’ compensation in cases of causal connection etc., as a means of validating possibly questionable scientific evidence, a.k.a. “junk science.” The first success was achieved at the District Court level in U.S. Sugar Corp. v. Henson, 787 So. 2d 3 (Fla. 1st DCA 2000), which was approved by the Florida Supreme Court in written opinion; U.S. Sugar Corp. v. Henson, 823 So. 2d 104 (Fla. 2002). (Parenthetically; first, there is a story to tell about the ‘prevailing’ parties, but that is for another place and time, and second: the legislature has since adopted the “Daubert” standard of evidentiary proof, but, there is debate currently over whether it applies to workers compensation cases, another subject for a different time and place)
    • Where construction worker/sole proprietor sought to avoid his own ‘notice of election to be exempt’ from coverage – – after injury of course – – arguing it was not shown to have been made under oath, the JCC (the high and Hon. David W Langham) agreed with Claimant, but the order was reversed (Claimant represented by the estimable and revered former JCC Michael J Demarco):  in a rare case construing Florida statute number one, i.e. Section 1.01(5), Fla. Stat., dealing with the oath, the court held affirmation on the form itself (that the information was true and that he bound himself to secure coverage) was sufficient to satisfy the oath requirement of section 440.05 (3). Battle v. Gentry, 898 So. 2d 263 (Fla. 1st DCA 2005)
    • First major test of the "modern" version of the "fraud" statute, prosecuted by the estimable Mark Zientz: following Claimant's conviction on two counts of Worker's Compensation fraud (having significantly misrepresented mileage), and even though Claimant was then scheduled for back surgery, the court;
      • Rejected Claimant's argument statute violated federal and state "double jeopardy” clauses of the Constitutions;
      • Rejected Claimant's argument statute violated "excessive fines" clauses of federal and state constitutions, and finally, perhaps most notably:
      • Ruled, yes; statute compelled forfeiture of "all compensation or benefits" based on a single incident of proscribed conduct: forfeiture was not limited to only those benefits impacted by the misrepresentation (e.g., here, mileage).

      The case is Wright v. Uniforms for Industry, 772 So. 2d 560, 560 (Fla. 1st DCA 2000)

    • This leading and oft cited case established, first, that a qualifying misrepresentation warranting forfeiture of benefits did not require clear and convincing evidence but satisfaction of only the conventional burden of proof. Additionally, the court ruled a qualifying misrepresentation need not relate directly to claimed benefits, so long as it is made with the idea in mind that it would impact the claim somehow, which broadly enlarged the scope of qualifying misrepresentations. No longer was it necessary to establish for instance “proof of earnings” in activity that looked suspiciously like work, e.g., "Well then what was your car doing there?” -- “I have no idea.” is enough. Village of North Palm Beach v. McKale, 911 So.2d 1282 (Fla. 1st DCA 2005)
    • A judge is not empowered to reject E/C’s misrepresentation defense were claimant dismisses PFB for one injury (to which misrepresentations were said to have applied) while holding onto second PFB for other bodily injury arising out of the same accident: one misrepresentation equals forfeiture of all. Claimant cannot avoid the consequences of such acts via creative pleading activity. THG Rentals & Sales of Clearwater, Inc. v. Arnold, 196 So. 3d 485, 486 (Fla. 1st DCA 2016), reh'g denied (Aug. 15, 2016)
      Special Bulletin: 9/28/2018: The appellate court remanded the THG/Arnold case, in 2016, for entry of a new Order based on its instructions -- and in response the JCC issued an order denying the claim in its entirety based on Claimant's commission of proscribed acts – – and Claimant appealed. On 9/28/18 the court issued a per curiam affirmance of the denial of the Arnold claim in its entirety. Congratulations to trial attorney Tim Jesaitis, who referred the matter to George Kagan to defend the appeal on behalf of E/C.
    • U.S. Court of Appeals reversed Benefits Review Board affirmance of trial award of PTD benefits on two grounds. First, the opinion marked the second time the federal courts – – and the first time the Fourth Circuit -- construed a work search requirement to apply to appropriate LHWCA claims. Second; employer’s demonstration of available work need not be current up to the date of the hearingper se, but within the relevant time frame generally. Trans-State Dredging v. Benefits Review Bd. United States Court of Appeals, Fourth Circuit. April 03, 1984 731 F.2d 199.
    • Leading Florida case greatly clarifying the law on “both sides” of a navigable waterway’s edge. Court reversed in employer’s favor (for the second time in the same case) JCC’s determination claimant’s injury standing on a small barge while building a residential dock -- on a canal that qualified as a navigable waterway -- was covered under the Florida WC act. Because such injury would be covered under LHWCA, it could not be covered under the Fla. act. JCC was without jurisdiction. Carrier did not maintain WC coverage so it had no liability to the employer (which had no LHWCA coverage). (Parenthetically, the earlier opinion reversed the judge for finding LHWCA coverage by estoppel!) FCCI Fund v. Cayce's Excavation, Inc., 726 So. 2d 778 (Fla. Dist. Ct. App. 1998)
    • An important strengthening of the bedrock MCC doctrine was achieved in this deceptively simple reversal of a JCC order: this sort of ruling was long-sought by me, for it reintroduced an extremely useful doctrine enunciated in a significant decision construing earlier version of the act, in Levenson v. Mkt. Foods Distributors, 405 So. 2d 974 (Fla. 1981): wherein a claimant without prior treatment or even symptoms pulled open a desk drawer at work, the court reversed an award ruling ‘prior symptoms’ are irrelevant where medical evidence established pre-existing condition was set to go at any time through any routine torsional movement. In this “modern” (MCC) case, the court has again expressly held: absence of prior ‘symptoms’  or ‘treatment’ is irrelevant to issue of MCC: only expert medical opinion based on objective criterion is determinative, even where the claimant may have ‘gone to work seemingly well and came out on a stretcher,’ so to speak. Anything else takes us back to “the straw that broke the camel’s back,” which is exactly what “MCC” was intended by the legislature to repudiate. Certistaff, Inc. v. Owen, 181 So. 3d 1218, 1220 (Fla. 1st DCA 2015), reh’g denied (Jan. 25, 2016)
  • Medical Benefits: One-Time Change In Physician
    • Landmark ruling establishing that a one-time change of physician is limited to one per accident, not one per specialty. Perez v. Rooms To Go, 997 so 511 (Fla. 1st DCA 2008)
    • In another leading ‘change of physician/five-day’ test, the court ruled providing Claimant a particular doctor’s name only, i.e. not the actual appointment, within five days of receiving the request, satisfied the statute even though E/C had not contacted the doctor. E/C successfully reversed JCC who agreed with claimant, to the contrary. HMSHOST Corporation/Gallagher Bassett Services Inc. v. Frederic, 102 So.3d 668 (Fla 1st DCA 2012)
  • ‘Pay and Investigate’ (120-Day) Rule;
    • In a pro-employer interpretation of the ‘120-day pay and investigate rule,’ the court issued two helpful rulings.
      First, in reversing JCC’s order to the contrary, the court ruled an E/C’s IME, aimed, after all, at getting to the bottom of a claimed injury, is not “provision of treatment” and thereby not the provision of a ‘benefit,’ and so an IME alone does not trigger/begin a 120 day period, (plus, the court noted, it would not trigger such a period even if the parties were confused about what the doctor did, if it turned out that what the doctor ‘did’ was solely an IME, i.e. no treatment). The second significant holding is: when there is nothing pending, no request for questionable medical treatment, no PFB, just the ordinary claim coursing along, there is no basis on which to require a proclamation from the E/C that it is denying benefits or invoking the pay and investigate rule. Tomaskovich v. Lapointe, 904 So.2d 538 (Fla 1st DCA 2005)
  • Procedural Rulings with Substance:
    • A pro-industry “bullet dodged” opinion in case involving severe (brain) injury: JCC denied PFB for PTD benefits preceding full MMI and Claimant appealed. The court affirmed ruling; there’s no basis -- regardless of the severity of injury -- for jumping the gun, so to speak, by enabling PFB’s for PTD prior to MMI were all benefits are being provided. This important maintenance of the status quo preempted the “rush to PTD” chaos in serious injury claims under earlier permutations of the act. Hernandez v. Geo Group, Inc./Specialty Risk Services, 46 So.3d 1123 (Fla 1st DCA 2010)
    • JCC awarded $60,000 attorney fee (over E/C contention it should not exceed $15,000) on grounds E/Cs response to motion for fees was four days late and so JCC felt ‘constrained’ to enter the amount sought. The court reversed the JCC's abuse of discretion in failing to address E/C's contention below that claimant's trial counsel agreed to the extra time (over, notably, the estimable attorney Mark Zientz’ contentions to the contrary on appeal). The court acknowledged the power of attorneys to make such informal agreement without need for formal motion (though noting that in hindsight a motion would have been the better practice here), and, the court reaffirmed the overarching doctrine: cases should be decided on their merits, not on technical defaults unless that result is literally compelled, which was not the case here. Morrison Mgmt. Specialists/Xchanging Integrated Servs. Grp., Inc. v. Pierre, 77 So. 3d 662 (Fla. 1st DCA  2011)
    • Test case where Claimant’s counsel filed for writ of certiorari on grounds JCC’s granting of E/C’s “late” EMA request (see this case also under EMA heading) would “violate the 210-day deadline for holding a hearing set by 440.25(4)(d), Florida Statutes (2013).” The court ruled the statutory deadline for holding a hearing is not “inflexible nor inviolable” and may be extended for good cause shown. Rubio v. Gymboree Corp., 178 So. 3d 81 (Fla. 1st DCA 2015)
  • PTD:
    • In a significant case the court reversed the JCC and disqualified a claimant from PTD benefits (following failed spinal fusion) where a job was shown to have been available had Claimant only availed himself of E/C’s English courses pointed to as available within the community, a case of first impression on this precise holding. (Reversed on other grounds as well.) Advanced Masonry v. Molina, 4 So.3d 62 (Fla. 1st DCA 2009)
  • TPD:
    • Where Claimant essentially refused employer’s concededly “make-work” duties, deliberately designed to keep him on the job during TPD and was terminated; the JCC, evidently siding with Claimant that such work was not ‘real’ work, denied E/C’s affirmative ‘misconduct’ defense and stated he would have awarded TPD ‘even if he agreed with the employer that claimant was terminated for misconduct.’ The court reversed such statement as inaccurate: E/C raised a dispositive defense which would preclude an award of TPD: JCC has no discretion to award TPD where termination is for (proven) misconduct. Southeast Milk/Zurich N. Am. v. Fisher, 135 So. 3d 582 (Fla. 1st DCA 2014)
  • Settlements:
    • Leading case reaffirming finality of settlements in an ‘as hard as it gets’ case of “buyer’s remorse;” where no physician had diagnosed a serious deep brain problem first discovered after settlement; because some ‘head injury’ was known at time of settlement — the fact it carried a different diagnosis and was much more serious than anyone knew was held an insufficient basis to overturn settlement: Claimant has the ‘right’ to make what is in hindsight a bad deal. Cordovez v. High-Rise Installation, Inc., 46 So. 3d 1120 (Fla. 1st DCA 2010)
  • Sanctions on Claimants:
    • Court upheld dismissal of a claim (Richard Zaldivar, Claimant’s counsel) with prejudice, where JCC “reasonably inferred Claimant willfully disregarded court order to appear” for a deposition. Verkruysse v. Florida Carpenters Reg’l Council, 27 So. 3d 157, 160 (Fla. 1st DCA 2010)

II. Notable Trial Outcomes

  • Catastrophic claim following life-threatening stab wounds after a coworker’s fiancé (now serving life in prison for attempted murder) arrived at Claimant’s home late at night, angry over distribution of customers between his fiancé and co-worker claimant: JCC ruled the line of direct connection to employment was broken: affirmed on appeal. Kneuer v. William Wallace Enterprises, Inc., 48 So. 3d 56 (Fla. 1st DCA 2010). Kagan defended at trial and appeal.
  • Death claim brought by husband of wife, fellow union ironworker, who died under mysterious circumstances in a port-o-let at the worksite, attributable to positional asphyxiation tenaciously and skillfully prosecuted by the estimable Gerry Rosenthal. Claim denied on MCC grounds, in that the port-o-let did not make a material contribution to her asphyxiation found likely to have resulted from a seizure via condition she concealed on hiring, and in consequence, the misrepresentation defense also applied through the union as proxy (in a case of first impression at the trial level). Affirmed on appeal, discussion limited to another point, namely: Claimant waived right to complain about JCC’s ‘late’ entry of order by not having done something about it during the long gestation period rather than complain for the first time on appeal. Jellison v. Dixie S. Indus., Inc., 857 So. 2d 365 (Fla. 1st DCA 2003). Kagan defended at trial and on appeal.
  • Appellate fee claim prosecuted by esteemed attorneys Richard Sicking and Mark Touby (successful team in landmark attack on constitutionality of Florida’s WC attorneys fee statute, Castellanos v. Next Door Co., 192 So. 3d 431, 431 (Fla. 2016), with Sicking also having spearheaded the successful attack on the 104-week limitation on TTD benefits Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla. 2016). Sicking sought $600 to 800 per hour fee for work on appeal following successful defense of E/C’s challenge to an award below. E/C through Kagan maintained stature of counsel was of no consequence to the then-present case, among other grounds of disputation of the fee claimed: JCC agreed and awarded E/Cs proposed $375 per hour fee. Marlene Napoles v. Kendall Regional Medical Center, OJCC Case No. 15-013813MAM, D/A 6/24/2011; JCC Mark A. Massey, Tampa, Fee Order entered 8/25/2017) )

III. Oldies but Goodies: Earlier Cases/Earlier Permutations of the Law.
(Under construction)

III. Honorable (maybe) Losses!
(Under construction: really procrastinating on this one!)

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