STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS MIAMI DISTRICT OFFICE

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1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS MIAMI DISTRICT OFFICE John Ginyard, Employee /Claimant, vs. Southeast Personnel Leasing, Inc., and Lion Insurance Co. /Packard Claims Administration, Employer /Carrier /Servicing Agent. / OJCC Case No MAM Accident date: 8/26/2014 Judge: Mark A. Massey FINAL EVIDENTIARY ORDER DENYING MOTION FOR ADVANCE This cause came for hearing before the undersigned Judge of Compensation Claims on 01/22/15. Present and representing the claimant was Gloria Garcia, Esquire. Present and representing E/C was Kate Albin, Esquire. The subject of the hearing was claimant's Motion for Advance filed 01/12/15. The following items were marked or proffered into evidence. The letter "D" in parentheses followed by a page number refers to the OJCC docket number. CLAIMANT'S EXHIBITS 1. Composite of petitions for benefits filed 09/25/14, 10/21/14, 10/22/14, and 12/03/14 (D- 6,18,19,31) (As to any medical records attached to the petitions, objections sustained as to hearsay and authenticity, but claimant was allowed to PROFFER same). 2. Motion for Advance with attached financial affidavit 3. [PROFFER] Cervical MRI report dated 12/15/14 (D -31) (Objections sustained as to hearsay and authenticity) 4. [PROFFER] Medical report of Dr. Zaydon (D -42) (Objections sustained as to hearsay and authenticity) FINDINGS OF FACT AND CONCLUSIONS OF LAW After carefully considering the evidence and testimony presented and after hearing and considering the arguments of counsel, I hereby make the following findings of fact and conclusions of law. Claimant, John Ginyard, worked as a delivery driver. He claims that on 08/26/14 he was 1

2 delivering scaffolding in the course and scope of his employment when he was involved in a motor vehicle accident. He claims injuries including a laceration to the head and pain in the back and neck. He is pursuing a personal injury claim against the at -fault driver, as well as the instant workers' compensation claim. Employer /carrier have denied compensability and no benefits have been paid or provided. Claimant seeks an advance in the amount of $ pursuant to section (12)(c), F.S. (2014). Under this section, a claimant may be eligible for an advance not exceeding $ , if (a) he has not returned to the same or equivalent employment with no substantial reduction in wages; or (b) he has suffered a substantial loss of earning capacity; or (c) he has suffered a physical impairment, actual or apparent. It is not necessary for a claimant to prove all three factors. Rather, it is sufficient to show any one of the three. In addition, a claimant seeking an advance must show that (a) he is a proper claimant; and (b) that there is a plausible nexus between the need for an advance and the overall purpose of the workers' compensation law (addressing medical and related financial needs arising from workplace injuries). ESIS/Delta Airlines v Kuhn, 104 So. 3d 1111 (Fla. 1st DCA 2012). Further, a claimant must demonstrate that the amount requested is appropriate, as opposed to some other, lesser amount. Worthy v Jimmie Crowder Excavating, 100 So. 3d 727 (Fla. 1st DCA 2012). Finally, the JCC must give "due consideration to the interests of the person" claiming the advance. Section (12)(c)2., F.S. As long as the advance does not exceed $ , claimant need not demonstrate that he will be eligible for benefits in the future from which E/C could recoup the advance; potential prejudice to the employer is not a consideration under section (12)(c), in contrast to section (12)(d). Workers of Fla. v Williams, 743 So. 2d 609 (Fla. 1st DCA 1999). Therefore, a claimant may still be eligible for an advance under (12)(c) even in a case, as here, where compensability has been denied and has not yet been proven. Lopez v Allied Aerofoam, 48 So. 3d 888 (Fla. 1st DCA 2010). Claimant testified that he has not worked since the accident and has had no earned income since the accident. That testimony is undisputed. Therefore I find that claimant meets the "has not returned to the same or equivalent employment" prong of section (12)(c). I find that claimant has not met the other two prongs. As to loss of earning capacity, I find that claimant's testimony standing alone is insufficient to demonstrate a loss of earning capacity, since claimant is not a medical expert and cannot testify as to any physical limitations or restrictions based on an alleged medical condition. As to physical impairment, claimant admitted that no physician has assigned an impairment; and even if he had testified as to assignment of an impairment, such testimony would be neither competent nor substantial, since again claimant is not a medical expert, and such testimony could only be based on hearsay. I further find that claimant is a "proper claimant" under Kuhn, since he is actively pursuing a claim for workers' compensation benefits against the employer. Therefore, the 2

3 remaining inquiry is whether there is a plausible nexus between the need for the advance (if such need is proven) and the purpose of the workers' compensation law (addressing medical and financial needs resulting from workplace injuries), and whether the advance is in claimant's best interest, and whether the amount requested is appropriate. Claimant received emergency medical care from Jackson Memorial Hospital following the accident. He has also received follow -up treatment from various physicians and therapists, apparently through his personal injury attorney, or under the personal injury claim. Claimant has also received "two loans off the personal injury case," totaling $10, He is not required to repay those loans (plus interest) until the conclusion of the personal injury case. In addition, he has borrowed about $ from a relative. Claimant claims monthly bills totaling $ , as follows: Rent $ Telephone $ Food/home expenses $ Electric bill $ Car $ Car insurance $ Water $ Claimant admitted that in a fairly recent deposition, he testified he was not behind on any bills. The house in which claimant resides is apparently owned by his girlfriend. He states that at the end of this month, he will be two months behind in his rent. However, he did not testify as to what the consequences, if any, would be if he failed to pay it. He testified that he is now one month behind on his car payment, and has not paid his car insurance this month, nor has he paid his phone bill this month. He has paid the electric bill and the water bill this month. He admits that the girlfriend's daughter helps with some of the household bills. He did not testify as to any other debts such as credit cards. He did not give an accounting of what he did with the $13, in loans he has received since the accident, even when it was pointed out to him on cross -examination that the $10, in personal injury loans should have almost covered his monthly bills since the accident ($ per month times five months). Claimant also testified that his pre -injury wage was about $ per week gross, which would have totaled about $ before taxes over the same period of time. In sum, claimant has received and continues to receive medical care and treatment under the personal injury claim. He has also received loans in excess of what his wages would have been since the accident if he had kept working. I recognize that he is liable to repay the loans, likely at a very high interest rate. But that begs the question: How is adding another $ to his already existing debt going to help him? It will only put him even further into debt. I also disagree with the allegation in the motion that claimant is, at this time, "suffering 3

4 from extreme financial hardship." There is no evidence that claimant is on the verge of default with any creditors, or that he is facing certain eviction or the cutting off of utilities. He might be struggling and there might be various reasons for this. However, it does not appear that claimant is "living a pauper's life," and therefore I find that this case is distinguishable from the recent case of Bonner y Miami Dade Public Schools, 148 So. 3d 152 (Fla. 1st DCA 2014). In that case, claimant's financial struggles and difficulty managing her financial situation were well documented and supported by the evidence and testimony in the record. In contrast, I find that claimant in the instant case has not demonstrated the type or level of financial difficulty as was the case in Bonner. This is not to say that a claimant must be out on the street or in abject, dire financial straits in order to qualify for an advance. Rather, I am simply finding that claimant has not carried his burden of proving that an advance is truly needed, or that it would materially help his situation. There is also another important distinction between the instant case and Bonner. In Bonner, it was undisputed that claimant's financial difficulties were "solely" and directly a result of her industrial accident and injuries. In this case, that was not demonstrated, or at the very least is far from undisputed. Even if I were inclined to grant an advance, I find that claimant has not demonstrated that an advance in the amount of $ is appropriate, as opposed to some other, lesser amount. Even the bills he testified he was (or was about to be) one month or in some cases two months behind on, do not add up to $ Nor did claimant provide any kind of accounting or plan as to how the money would be used, if the advance were to be awarded. In sum, I find that claimant has not carried his burden of proving that an advance is warranted under the existing statute and case law. If the purpose of an advance is to address "medical and related financial needs arising from workplace injuries," Kuhn, a claimant who has received and continues to receive medical care, with no immediate out of pocket cost, and who has received funds equal to or in excess of his claimed monthly bills and is not or should not be on the verge of default with any creditor, does not meet the required standard. WHEREFORE it is hereby ORDERED AND ADJUDGED: The Motion for Advance is hereby denied and dismissed. DONE AND ORDERED this 27th day of January, 2015, in Miami, Dade County, Florida. Mark A. Massey Judge of Compensation Claims Division of Administrative Hearings 4

5 Office of the Judges of Compensation Claims Miami District Office 401 Northwest 2nd Avenue, Suite N -918 Miami, Florida (813) COPIES FURNISHED: Packard Claims Administration PO Box 1549 Tarpon Springs, FL Gloria M. Garcia Gloria M. Garcia, P.A Cow Pen Road, Suite 302 Miami Lakes, FL gmg@ggarcialaw.com,msv@ggarcialaw.com Anthony M. Amelio Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A. 603 North Indian River Drive, Suite 200 Fort Pierce, FL AAmelio@HRMCW.com,dlamb@hrmcw.com I HEREBY CERTIFY that the foregoing order was posted to the DOAH website