Reporting an injury via a Petition for Benefits within 30 days of the alleged accident does not fulfill the notice requirement.

The claimant, a senior claims adjuster, worked remotely in Orlando and once a quarter went to Tallahassee to the employer’s office. He typically was picked up by a rental car company. However, on the alleged date of accident, he had to ride an electric bicycle to the car rental facility. On the way there, he testified that he had an accident and hit his head on the cement while wearing a helmet. He claimed injuries to his head, neck, left elbow, right elbow and low back.

He testified that he got back on his bike, picked up the rental car, went home, got cleaned up and drove to Tallahassee. He attended a training session the following day. He admitted that he did not give notice to his employer. He was terminated shortly thereafter.

Prior to the alleged accident, the claimant had been diagnosed and treated for PTSD, anxiety and depression. Furthermore, a month before the accident, he was hit in the head by a barbell while working out. He went to the emergency room on July 7, 2021, (a few weeks before the alleged date of accident) and reported that he had sustained a head injury three weeks prior. In August 2021, he saw a neurosurgeon and had an MRI of the brain.

For the work accident, the claimant underwent an IME. He reported the bicycle accident, complaining of chronic headaches, migraine, nausea, dizziness, photophobia and anxiety. He reported to the IME physician that he did not have any of those symptoms prior to the work accident. He also reported a brief loss of consciousness with the bike accident. He did admit to the barbell incident, but said he had fully recovered. The claimant did not reveal his prior mental history to the IME physician. The IME physician opined that the claimant’s symptoms were related to the bike incident and that further treatment was needed. On cross-examination and during deposition, the IME physician acknowledged that the claimant’s history as given was inconsistent with his deposition testimony.

The claimant filed a Petition for Temporary Total/Temporary Partial Disability Benefits from the date of accident and continuing, compensability of the head and neck, injury and PICA. The employer/carrier denied, arguing there was no accident or injury, pre-existing medical conditions, misrepresentation and untimely notice.

The claimant argued that notice was timely because the petition was filed within 30 days of the alleged date of accident. However, the judge pointed out that section 440.185 1(d), Florida Statutes (2021) states, “Documents prepared by counsel in connection with litigation, including but not limited to notices of appearance, petitions, motions, or complaints, shall not constitute notice for purposes of this section.” The claimant testified that he did not give notice to his employer of this alleged accident. The petition, pursuant to statute, does not serve to fulfill the notice requirement.

The judge pointed out the inconsistencies between the claimant’s deposition testimony and the information he gave to the prior physicians and the IME physician. Due to the inconsistencies and misrepresentations in the testimony and history, the judge rejected the claimant’s testimony regarding the occurrence of a work accident. The judge pointed out that the claimant testified that he knew from being an adjuster that notice must be given within 30 days. The Order further noted that the claimant did not seek medical treatment for the significant injuries he alleged, instead waiting 30 days to file a petition requesting treatment. The judge found that the claimant made material misrepresentations for the purpose of obtaining worker’s compensation benefits. All benefits were denied due to untimely notice, material misrepresentations, no accident or injury, and no proven loss of earnings as a result of a compensable work accident.

The claimant appealed, and the First District court of Appeal issued a per curiam affirmance on April 11, 2024, without a written opinion. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 5, May 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}