Thomas J. Silvernail v. City of Tampa/ Commercial Risk, etc.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
THOMAS J. SILVERNAIL, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-6203
CITY OF TAMPA/
COMMERCIAL RISK
MANAGEMENT,
Appellee.
_____________________________/
Opinion filed October 27, 2014.
An appeal from an order of the Judge of Compensation Claims.
Ellen H. Lorenzen, Judge.
Date of Accident: March 6, 1999.
Kelli Biferie Hastings of the Law Office of Kelli Biferie Hastings, PLLC, Orlando,
and Christopher Mank of Morrell & Mank, P.A., Lakeland, for Appellant.
L. Gray Sanders, Tampa, for Appellee.
PER CURIAM.
“For an issue to be preserved for appeal, it must be presented to the lower
court and the specific legal argument or ground to be argued on appeal must be part
of that presentation.” Holland v. Cheney Bros., Inc., 22 So. 3d 648, 649-50 (Fla. 1st
DCA 2009). Here, the estoppel argument raised by the claimant on appeal was not
presented to the Judge of Compensation Claims (JCC) in any meaningful way, shape
or form until an untimely motion for “reconsideration.” * This was insufficient to
preserve the issue for our review, and on that basis, we affirm the order denying the
compensability of the claimant’s bradycardia condition and the payment of medical
bills related to that condition.
AFFIRMED.
WOLF, THOMAS, and WETHERELL, JJ., CONCUR.
*
The motion – which the JCC properly treated as a motion for rehearing under
Florida Administrative Code Rule 60Q-6.122(1) rather than a motion to vacate the
final order under rule 60Q-6.122(5) – was filed 11 days late because it was received
by the Office of the Judges of Compensation Claims at 6:13 p.m. on the 20th day
after the final order was issued. See Fla. Admin. Code R. 60Q-6.108(1)(e)
(explaining that documents received after 5:00 p.m. will be deemed filed at 8:00 a.m.
on the next business day); Fla. Admin. Code R. 60Q-6.122(1) (requiring motions for
rehearing to be filed within 10 days from the date of the order sought to be reviewed).
Moreover, the motion only presented a portion of the argument raised by the
claimant on appeal. The motion asserted that the employer/carrier (E/C) is estopped
from denying payment of the bills for two hospital visits related to the bradycardia
condition based upon its payment of bills from one other hospital visit related to that
condition; however, the motion did not argue – as does the initial brief – that the E/C
is estopped from denying compensability based upon the “120-day rule” in section
440.20(4), Florida Statutes.
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