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What's Hot in Workers' Comp

Judge of Compensation Claims abused his discretion in denying a motion to continue a final hearing when the reasoning behind the request was out of the appellant’s control.

Miami Donuts Payroll d/b/a Dunkin Donuts and Liberty Mutual v. Claudia Villarreal, Fla. 1st DCA, No.: 23-0789, November 6, 2024

January 1, 2025

by Linda Wagner Farrell

The claimant, a cashier, was shocked while plugging in a register at work. She later developed neurofibromatosis that lead to surgery. The neurosurgeon, Dr. Levi, performed surgery and indicated the claimant’s condition was not work-related. 

The claimant filed a petition for benefits, which the employer/carrier denied, citing major contributing cause based on Dr. Levi’s opinion. Dr. Levi also signed a letter reiterating his opinion that the claimant’s diagnosis and treatment were not work-related. 

However, in his deposition, Dr. Levi completely reversed his opinion, forcing the employer/carrier to immediately find an IME expert. Three weeks after this deposition, the employer/carrier filed a motion to continue the final hearing in order to allow time for the IME. In doing so, they explained, they had a doctor lined up, but he was then declined because of a relationship to Dr. Levi. The employer/carrier also asserted they had made contact with five other physicians. 

The judge of compensation claims denied the motion. The final hearing took place, where the judge accepted the uncontroverted opinion of Dr. Levi and found the accident was the major contributing cause of the claimant’s condition. 

Section 440.25(4)(b), Fla. Stat., provides that the judge has wide discretion in this regard, but it also limits that discretion to instances where the circumstances necessitating the request are beyond the requesting party’s control. 

The First District Court of Appeal held that the facts were entirely reasonable to approve a motion for continuance. The employer/carrier only became aware of the need for an IME five weeks before the final hearing. They worked diligently to obtain an IME but were deprived of the right to an IME as statutorily entitled. 

The Appellate Court held the judge of compensation claims abused his discretion, reversed the denial of the motion and vacated the lower court’s order awarding benefits. 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 1, January 2025, 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 © 2025 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.

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