David Napier v. City of Riviera Beach and Gallagher Bassett Services, Inc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D18-2576
_____________________________

DAVID NAPIER,

Appellant/Cross-Appellee,

v.

CITY OF RIVIERA BEACH and
GALLAGHER BASSETT SERVICES,
INC.,

Appellees/Cross-Appellants.

_____________________________

On appeal from an order of the Judge of Compensation Claims.
Gregory J. Johnsen, Judge.

Date of Accident: May 21, 1993.

August 29, 2019

PER CURIAM.

Claimant argues that competent substantial evidence (CSE)
did not support the denial of his request for low-back surgery, but
we find to the contrary and affirm that issue without further
comment. On the Employer/Carrier’s (E/C) cross-appeal, we
affirm as supported by CSE the Judge of Compensation Claims’
(JCC) finding that Claimant’s pars defect is compensable. We
agree, however, that the JCC erred in addressing maximum
medical improvement (MMI), because no claims requiring this
determination were noticed for hearing. This renders moot the
E/C’s argument that CSE did not support the MMI finding.
 The parties to workers’ compensation cases are required to
set forth their claims, defenses, and issues at the pretrial
conference. See Isaac v. Green Iguana, Inc., 871 So. 2d 1004 (Fla.
1st DCA 2004) (reversing denial of compensation based on
affirmative defense not raised in pretrial). Because due process
rights are implicated, a party has a right to rely on the issues as
framed in the pretrial statement. See id. at 1006.

Here, approximately ten days before the merits hearing,
Claimant filed a Petition for Benefits (PFB) claiming entitlement
to temporary indemnity benefits from October 12, 2017 and
continuing. Because the indemnity claim had not been mediated,
the order on appeal reserved jurisdiction over the issue for a later
hearing. See Parodi v. Fla. Contracting Co., 16 So. 3d 958, 961
(Fla. 1st DCA 2009) (finding JCC properly reserved jurisdiction
on unmediated PFBs). The E/C also reserved the right to assert
defenses to the request for temporary indemnity including, but
not limited to, res judicata. Thus, the only claim before the JCC
at the merits hearing was authorization for low-back surgery.
Because no claims requiring the determination of MMI as a
component of eligibility or entitlement had been raised in the pre-
trial stipulation, the JCC erred in addressing MMI status. See
Commercial Carrier Corp. v. LaPointe, 723 So. 2d 912, 915 (Fla.
1st DCA 1999) (“An order that is not in accord with the
understanding with which the workers’ compensation hearing
was undertaken and participated in is a denial of due process and
must be reversed.”) (quoting Se. Recycling v. Cottongim, 639 So.
2d 155, 157 (Fla. 1st DCA 1994)). Accordingly, we strike
paragraphs 21 through 23 of the order as to MMI.

AFFIRMED in part and REVERSED in part.

B.L. THOMAS, KELSEY, and M.K. THOMAS, JJ., concur.

_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

2
Michael H. Stauder of Michael H. Stauder, Sr., P.A., Jupiter, for
Appellant/Cross-Appellee.

Gary M. Schloss of Hayes, Schloss & Alcocer, P.A., West Palm
Beach, for Appellees/Cross-Appellants.

3