Steven Bertlshofer v. Davita Inc. and Broadspire

Jerry Hayden (Miami, FL) (Workers’ Compensation) The issues addressed at Final Hearing included a Petition for Benefits filed on 3/23/18 seeking TTD and/or TPD benefits retroactive to the industrial accident of 7/13/11, plus penalties, interest, attorney’s fees and costs. The E/SA argued that it paid appropriate indemnity benefits except for a gap in payment which it argued was unrelated to the subject industrial accident. The E/SA further established documentation that the Claimant had reached MMI for his work related injuries and that he was not eligible for TTD and/or TPD benefits beyond that date. The E/SA presented payroll demonstrating that the Claimant had returned to work post-accident and was receiving his regular earnings prior to the gap period in issue. The payroll also showed that the Claimant had received some paid time off. The E/SA was able to establish that the Claimant had taken time off during this gap period to care for a sick family member. Based on the evidence, the JCC found the adjuster’s testimony, premised on claim notes taken at or near events in issue, was more reliable than the Claimant’s testimony. The JCC determined that the Claimant elected to take personal time off during the gap in issue, which supported the E/C’s voluntary limitation of income defense. The JCC found that the Claimant had reached MMI for his work related injuries without any permanent restrictions. The JCC denied the claim for TTD and/or TPD benefits, attorney’s fees and costs.