HomeMy WebLinkAboutBack-Up DocumentsSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OFFICE OF THE JUDGE OF COMPENSATION CLAIMS
Employee/Claimant:
Humberto Diaz
3076 W. 68t1' Place
Hialeah, Fl. 33018
786-626-9391
Employer/Self-Insured:
CITY OF MIAMI
Risk Management Department
P.O. Box 330708
Miami, Florida 33233
Servicing Agent:
USIS, Inc.
P.O. Box 616648
Orlando, Florida 32861
MIAMI DISTRICT OFFICE
Attorney For Employee/Claimant:
Gloria M. Garcia, Esq.
Gloria M. Garcia, P.A.
6500 Cow Pen Road
Suite 302
Miami Lakes, Florida 33014-7625
Attorneys For Employer/Servicing Agent:
VICTORIA MENDEZ, City Attorney
WILLIAM A. JULIACHS,
Senior Assistant City Attorney
444 S.W. 2nd Avenue, Suite 945
Miami, Florida 33130
OJCC Case No.: 20-006621 SMS
D/A: 8/17/2018 & all accidents or
occupational diseases in any way related to
employment with the City of Miami
JCC: HONORABLE SYLVIA MEDINA-
SHORE
TENTATIVE MEDIATION CONFERENCE AGREEMENT
The parties, the City of Miami/USIS, Inc., herein after the E/SA, and the claimant,
Humberto Diaz, by and through their respective counsel, hereby memorialize their tentative
mediation conference Agreement of March 4-5, 2021, which is subject to City Attorney /City
Commission approval, as well as approval of the claimant's
follows:
ension application as
Claimant, via his counsel, has agreed that once the City of Miami City Comm on approves of this
Settlement Agreement, t CI 'mant will immediately resign and retire from the City of Miami, with the
intent to collecta r?x1 lion,
Hurnberto Diaz v. City of Miami
1. JURISDICTION -- The Florida Division of Administrative Hearings (DOAH)
and the Judge of Compensation Claims (JCC) has jurisdiction of the subject matter and the
parties hereto.
2, DESCRIPTION OF ACCIDENT(S) — The parties agree that the accidents
described and outlined herein are merely illustrative and not necessarily all inclusive. The
claimant was injured on the job on August 17, 2018 when claimant slipped and fell backwards
while exiting a Solid Waste truck from the left side and experienced pain on the left side,
cervical and back of his head. In addition to this accident, the claimant has previously claimed
on-the-job accidents resulting in injuries with the City of Miami occurring on 7/16/91, 6/14/93,
10/7/99, 8/20/01, 6/18/02, 5/12/03, 8/31/04, 10/17/05, 6/23/08, 4/27/09, 6/17/13, 7/24/15, 7/5/16,
11/7/16, and 8/14/18, The parties agree that regardless of whether an accident is listed herein or
not, the claimant understands that this settlement resolves any claims for any additional benefits
of any bind or classification for any accidents or occupational diseases the claimant may have
suffered while employed with the City of Miami. The parties further agree that the claimant has
either fully recovered from or allowed the statute of limitations to expire on every
accident/occupational disease listed herein, and any other accidents or injuries suffered while
employed with the City of Miami that is not specifically listed herein, except the accident[s] of
August 17, 2018.
3. TENTATIVE SETTLEMENT AMOUNT AND DISCHARGE OF
LIABILITY FOR PAST AND FUTURE COMPENSATION AND MEDICAL BENEFITS
Subject to the approval of the settlement by the City Attorney, City Commission [if deemed
necessary by the City Attorney], and Judge of Compensation Claims, the E/SA will pay to the
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Humberto Diaz v, City of Miami
Claimant the surn of S109,900,1 as set forth in this agreement, in full satisfaction of the
obligation or liability to pay all benefits of whatever kind or classification available under the
Florida Workers' Compensation Law, including, but not limited to, past and future medical
benefits under either F.ia. Stat. 440.13 or Fia. Stat. 440.134, if applicable, monetary
compensation as contemplated under Section 440.15 Florida Statutes, including but not
necessarily limited to compensation for permanent total and supplemental disability, temporary
total disability, temporary partial disability, permanent partial, wage loss benefits, impairment
income benefits, and supplemental benefits, death benefits as contemplated under Section 440.16
Florida Statutes, penalties and interest as contemplated under Section 440,20 Florida Statutes,
and for rehabilitation benefits, including rehabilitation TTD benefits under Section 440.49
Florida Statutes, on account of all work related accidents arising out of and in the course and
scope of employment with the City of N1iarni. This sum will include all attorneys' fees and
costs.
4. USA's RELEASE & DISCHARGE OF LIABILITY TO CLAIMANT -
Upon receipt of the lump sum settlement, assuming it is approved as provided above, the I/SA
will be forever released and discharged from the obligation or liability to pay for any and all
benefits of whatever kind or classification payable under the Florida Workers' Compensation
Law. The payment of the lump $u:un set forth herein will aid in the rehabilitation of the Claimant,
Humberto Diaz, or will otherwise be in his best interest.
5. ATTORNiY'S FEES AND WAIVER - The Claimant is represented by Gloria
M. Garcia, Esquire, of Gloria M. Garcia, P.A., in connection with this matter, who is entitled to a
fee for legal services rendered should this tentative agreement be approved as provided in
paragraph #3 above. Due to the nature of the issues involved and the nature of the benefits
'This sum includes a $6,000.00 iw/SA paid attorney's fee for past benefits obtained.
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Humberto Diaz v. City of Miami
considered in light of the number of hours the attorney devoted to the matter, the fee suggested
under §440.34(1), Fla. Stat. is adequate to properly compensate the attorney in this case. The
claimant agrees that $10,000.00 is a reasonable attorney's fee. The claimant agrees that $0.00 for
costs are due to Gloria M. Garcia, Esquire, of Gloria M. Garcia, P.A. The claimant further agrees
that the attorney fee amount is within the statutory guidelines, based on this lump -sum settlement
as this was explained to him by his counsel, Gloria M. Garcia, Esquire. Additionally, Gloria M.
Garcia, Esquire and the E/SA agree that the E/SA2 will pay $6,000.00 in attorney fees and $0.00
in costs to resolve any and all claims for E/SA paid fees and costs, Finally, the claimant agrees
that Gloria M. Garcia, Esquire and the office of Gloria M. Garcia, P.A. have represented him and
reached out to the E/SA since at least March 12, 2020, working to expeditiously obtain workers'
compensation benefits and devoted substantial time and effort to achieve that result. The parties
agree that $37,665,57 in medical benefits and $15,321.11 in indemnity, totaling $52,986,68, have
been paid since March 12, 2020. The claimant agrees $4,000.00 in attorney's fees and $0.00 in
costs payable from this settlement to Gloria M. Garcia, Esquire, is reasonable and less than a
statutory fee for past benefits obtained. Except as provided herein, notwithstanding the
provisions of §440.34(a-d), Fla. Stat., the Claimant and not the E/SA is responsible for the
payment of his own attorneys' fees because this settlement was made under §440.20(11)(c), Fla.
Stat. This stipulated fees are in accordance with Lee Engineering and Construction Company v.
Fellows, 209 So.2d 454 (Fla. 1968) and §440.34, Fla. Stat. The Claimant has been informed of
the right to a hearing on the amount of the fees charged by his current and Fortner attorneys and
hereby waives his right to such hearing. The claimant understands that $14,000.00 in fees and
costs shall be paid from the settlement proceeds, and $6,000.00 in attorney's fees and costs shall
7 By executing this agreement, USIS, Inc. agrees that USLS, Inc, is responsible for payment of the /SA paid
attorney's fees.
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Humberto Diaz v. City of Miami
be payable by the E/SA thereby making the net settlement amount due to the Claimant from the
Lump -sum Settlement Agreement $89,900.00.
6. ATTORNEY FEE LIENS — The Claimant represents that there have been no
other attorneys retained by him in the prosecution and handling of this claim, or any other date of
accident with the City of Miami. Should another attorney(s) file a lien for professional services
rendered to the Claimant, then the Claimant, his estate, heirs and/or assigns, his counsel, Gloria
M. Garcia, Esquire, will hold the E/SA, harmless against any such claims and will reimburse the
E/SA in the event the E/SA becomes obligated to make any payment for such services.
7. CHZLD SUPPORT ALLOCATION -- Pursuant to Florida Statute §61.14(8)
(2005) the Claimant represents that he has disclosed to his attorney Gloria M. Garcia, Esquire, of
Gloria M. Garcia, P.A. and to the Attorney for the E/SA, any and all information concerning any
child support and/or alimony obligations he has including information about any support
arrearage(s) he may have. Claimant further attests that he has no other undisclosed support
obligations. The Claimant agrees to produce sworn doczunentation supporting said disclosure.
The Claimant also agrees to answer the following to the best of his ability: Does the Claimant
have any child support arrearage YES
NO? If yes, the Claimant acknowledges
there is an outstanding child support and/or .there is an outstanding deduction Order of
$ and agrees that $ will be allocated from the settlement toward
these arrearages. The settlement is contingent upon approval of this allocation by the Judge of
Compensation Claims, While the Judge of Compensation Claims may approve this allocation,
the C1ainlant understands this is not binding on the Department of Revenue, and Claimant's
counsel is making no representation that the Department of Revenue will accept this allocation as
a complete satisfaction of the outstanding child support.
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Humberto Diaz v. City of Miami
8. WAIVER OF PENALTIES AND INTEREST, AND FORMAL NOTICE —
The Claimant does hereby waive any rights he may have to any and all penalties or interest on
account of all on -the jjob accidents or occupational diseases with the City of Miami, whether or
not referenced herein.
9. PALLIATIVE TREATMENT ONLY The parties agree that, except as
provided herein, workers" compensation benefits shall continue as provided by Chapter 440,
Florida Statutes, while the settlement contingencies are pending. However, the parties further
agree that while the settlement is pending the claimant will only seek and the E/SA will only
provide palliative non-invasive treatment and care. The parties further agree that upon
satisfaction and approval of all pending settlement contingencies, as provided herein,
authorization and provision of E/SA paid medical benefits of any kind or classification shall
cease. The parties further agree that if the settlement is not approved, the terms herein shall be
null and voidable.
10. TENTATIVE STIPULATION SUBJECT TO APPROVAL OF THE
MOTION FOR APPROVAL OF ATTORNEY'S FEE AND ALLOCATION OF CHILD
SUPPORT ARREARAGE BY THE JUDGE OF COMPENSATION CLAIMS — The parties
clearly understand that this agreement shall become binding upon the approval of the City
0ra'!t
Attorney, City Commission, and the approval of his disabilitylipension application by the
G.E.S.E. Retirement Trust for the City of Miami3, The Claimant understands that settlements
have been disapproved by Judges in the past or may be disapproved by the City of Miami City
Attorney and/or City Commission and that he should not undertake any financially binding
actions until formal approval is obtained. In the event the settlement is not approved, this
The parties understand that the Office of the City Attorney, Department of Risk Management and USiS, Inc, have
a ntr-el-aver th-e orlr�aztions of the G.E.S.E. Retirement Trust and that the matter of the claimant's claim
for disabillty(retirement benefits is a matter entireiy between hi .and the C.E.5,E. Retirement Trust.
6
A
Humberto Diaz v, City of Miami
Agreement shall be completely void and of no effect. If the settlement is disapproved, the E/SA
reserves the right to raise any and all defenses available under the Florida Workers'
Compensation Act. This settlement is permitted by §§440.20(11)(c), (d) and (e), Fla. Stat, In the
event this law is declared unconstitutional or otherwise declared invalid by a court of competent
jurisdiction, it is agreed that any money paid under this settlement agreement is not a gratuity,
and the Claimant agrees to reimburse the E/SA by a lump -sum payment or re -payment plan
within 30 days of written notice by the E/SA, IF THE CLAIMANT SHOULD SEEK TO
INVALIDATE OR CHALLENGE ANY PORTION OF THIS AGREEMENT. In the event of
such an occurrence, the E/SA shall not be responsible for any additional benefits until the total
amount has been repaid.
11. VOLUNTARY SETTLEMENT - The Claimant agrees that he is entering this
agreement voluntarily and of his own free will, with full knowledge of the attendant rights,
responsibilities, obligations and consequences. The Claimant understands that he does not have
to settle his claim and hereby acknowledges that he does so voluntarily. The Claimant states that
he has sought and obtained legal counsel of his own choosing who has read and explained the
terms contained herein, and the Claimant is satisfied with the terms of this agreement.
Additionally, the Claimant acknowledges that he received no advice or input from the E/SA or
counsel for the E/SA in deciding to execute this release. The parties enter this agreement
without coercion, nor have any promises or consideration been offered to settle these Workers'
Compensation claims other than those specified herein.
12. EVERABILITY - The parties stipulate and agree that if any portion of the
Tentative Settlement Conference Agreement shall be found to be void, or otherwise ineffective,
same shall not serve to nullify the entire Tentative Mediation Conference Agreement, and such
portion(s) shall be severable from the Tentative Mediation Conference Agreement. The parties
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Humberto Diaz v, City of Miami
agree that the portion(s) of the Lump -sung allocated to any severed portion of the Tentative
Mediation Conference Agreement shall not be deemed as a gratuity, and shall be subject to
repayment as outlined in paragraph #9, herein.
13. PRESENT VALUE AND POSSIBLE OFFSET FOR SOCIAL SECURITY
AND MEDICARE CONSIDERATION - PRESENT VALUE AND POSSIBLE OFFSET
FOR SOCIAL SECURITY AND MEDICARE CONSIDERATION - The Claimant further
stipulates that he is not receiving Medicare. In reaching this Agreement, the parties agree that
the Claimant has represented and the E/SA has relied on the representation that the Claimant has
not CURRENTLY applied for or is not presently a candidate for Social Security Disability
benefits nor Medicare. It is not the intent of the E/SA to shift the burden to Medicare to pay for
the Claimant's future medical treatment related to his work injury.
Claimant does hereby indemnify and agrees to hold hazmless his own attorney, the
attorney of the E/SA and the E/SA, their agents and affiliates, of and from any cost, lien,
penalties, fees or damages which may arise in connection with any action taken by Medicare or
Medicaid as a result of workers compensation medical settlement
14. DISMISSAL OF ALL PENDING CLAIMS - The parties further tentatively
stipulate that all pending claims or petitions relative to all dates of accident with the City of
Miami, and any aggravations/exacerbations, as well as all other claims and/or petitions for
}[tidC - X -
benefits on behalf of the Claimant, Humberto Diaz, social security number ----,
alleging accidents er injuries in the course and scope of employment with the City of Miami
shall be dismissed with prejudice, This agreement becomes final upon approval as stated in
Paragraph #3 above.
15. TIME AND METHOD OF PAYMENT - TIME AND METHOD OF
PAYMENT - Within 14 days of the later of City Attorney and City Commission Approval of
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Humberto Diaz v, City of Miami
the entire Agreement as well as disability pension approval by the G,E.S.E Retirement Trust4,
the City Attorney's office will forward settlement papers consistent with the terms discussed
with counsel for the Claimant. The Claimant and his attorney have 14 days to return the fully
executed settlement papers as approved by the Office of the City Attorney. Within 30 days of
the Claimant's execution of the City Attorney -approved settlement papers, regardless of the
JCC's approval of attorney's fee and allocation of child support arrearage under 0440.20(11)(c),
(d) & (e), Fla. Stat., the E/SA shall issue payment to Claimant's counsel such that Claimant's
counsel may retain the settlement proceeds within the counsel's trust account until such time as
Claimant's counsel obtains appropriate approvals from the Judge of Compensation Claims for
his attorney's fees and costs as well as child/alimony support arrearages, if any.
16, ALL KNOWN ACCIDENTS INJURIES AND OCCUPATIONAL
DISEASES REVEALED AND ALL PENDING CLAIMS WITHDRAWN — The Claimant
represents and affirms that all accidents, injuries, aggravations/exacerbations, exposures, and/or
occupational diseases known to have occurred or been sustained while employed by the E/SA,
including but not necessarily limited to the injuuies/accidents/occupational diseases and/or
aggravations/exacerbations REFERENCED IN PARAGRAPH #2, SUPRA, have been revealed
and are contained in the provisions of this Tentative Mediation Conference Agreement, A.11
pending claims, petitions and notices are withdrawn upon approval as noted in paragraph #3
above, as to all dates of accident with the City of Miami and shall be dismissed with prejudice
upon approval of the settlement as provided herein. Upon approval as specified in paragraph #3,
above, any and all claims available to the Claimant as a result of his employment with the E/SA
are forever barred, regardless of whether they are specifically listed here or not. The parties
A The parties understand that this agreement is contingent on approvals by the City Attorney, City Commission of
the settlement and approval of the disability pension application by the claimant before the E.S. j, Retirement
Trust.
Humberto Diaz v. City of Miami
agree that this list of accidents is merely illustrative, and does not purport to include all
accidents. The parties further agree that, notwithstanding this list, the claimant understands
that he/she is settling all claims or accidents/occupational diseases with the City of Miami,
whether they are specifically listed here or not.
17. SEPARATE TENTATIVE GENERAL RELEASE: In consideration of the
receipt of $100.00, I, Humberto Diaz do hereby fully waive and release, on behalf of myself,
my heirs, executors, attorneys, administrators, and assigns, any and all claims, demands, causes
of action, damages, losses and expenses I. may have against the Employer, CITY OF MIAMI, the
Servicing Agent, USIS, Inc., their parent, subsidiary, affiliated and related companies, their
respective owners, representatives, officers, directors, attorneys, agents, employees, successors
and assigns, as a result of actions or omissions occurring through this date. Specifically included
in this waiver and release, but not limited to, are any and all claims for unemployment
compensation, claims of alleged employment discrimination, either as a result of my separation
of employment from the CITY OF MIAMI or otherwise, under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §1981, §§503 and 504 of the Rehabilitation Act, the Family Medical Leave
Act, Americans with Disabilities Act [ADA], and any other federal, state or local law or
regulation, as well as any claims for alleged wrongful discharge, breach of contract (express or
implied), intentional infliction of emotional distress, slander, spoliation of evidence, libel,
invasion of privacy, and any other alleged unlawful or wrongful behavior as well as all other
causes of action, suits, debts, claims and demands whatsoever in law or in equity, including but
not limited to, any workers' compensation claims/accidents/occupational diseases not
specifically assigned a DOAH number or otherwise mentioned/reported, which I ever had, now
have, or hereafter may have whether known or unknown, or which I or my heirs, executors, or
administrators may have, by reason of any matter, cause or thing whatsoever, from the beginning
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Humberto Diaz v. City of Miami
of my employment to the date of this agreement, and particularly, but without limitation of the
foregoing general terms, any claims arising from or relating in any way to my employment
relationship with the City of Miami, the terms and conditions of that employment relationship,
and the termination of that employment relationship, This agreement is effective without regard
to the legal nature of the claims raised and without regard to whether any such claims are based
in tort, equity, implied or express contract or discrimination of any sort.
18. I agree not to institute any further action and to withdraw in writing and/or to
have withdrawn in writing any administrative proceedings or lawsuits, including, but not limited
to any EEOC Charge. I represent and warrant that no other person has initiated or will initiate
such administrative proceedings or a lawsuit on my behalf as a result of actions or omissions
occurring through this date. This Release does not affect any pension rights, including accidental
disability retirement and vested retirement benefits, or group medical insurance rights under any
law or contract of which Claimant may be entitled, nor does it have any effect on any defenses
that may be asserted by the Employer, CITY OF MIAMI, or any agency, board, or other entity
affiliated thereto with respect to the Claimant's assertion of said rights. The parties acknowledge
that the Claimant's pension rights and group medical insurance rights are independent of the
workers' compensation benefits and not contemplated under the terms of this General Release.
I will voluntarily separate from my employment as an Waste Collector, or in any other
capacity, with the City of Miami effective UPON APPROVAL OF THIS AGREEMENT BY
THE CITY OF MIAMI, as provided herein, Additionally, I hereby acknowledge and declare
that I have no interest in reinstatement with the City of Miarni in the future. Further, under no
circumstances are any of the parties under any obligation whatsoever to consider me for
reinstatement at any time in the future. Likewise, I voluntarily agree not to seek reemployment
with the City of Miami.
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Humberto Diaz v, City of Miami
I understand and acknowledge: (1) that this is a legally binding Release upon approval as
provided in Paragraph #3 above; (2) that by signing this Release, I am to withdraw in writing
and/or to have withdrawn in writing any administrative proceedings or lawsuits, including, but
not limited to any EEOC Charge, upon approval as provided in Paragraph #3 above; (3), that by
signing this Release, I am hereafter barred from instituting a lawsuit or administrative claim on
my behalf as set forth above upon approval as provided in Paragraph #3 above; (4) that, by this
Release, no other person or organization can bring such a lawsuit or administrative claim on any
behalf; arid (5) that I understand that I was free to consult with anyone I desired, including my
attorney, prior to signing this Release. I also understand and acknowledge that the only
consideration for my signing this Release is that specified above, and that no other agreement or
promise of any kind has been made with or to me to cause me to sign this Release. Finally, I
fully understand and acknowledge the final and binding effect of this document, The parties
clearly understand that the .fudge of Compensation Claims must approve the Motion for
Approval of Attorney's Fees and Support Arrearage(s) before this release becomes formally
binding, In the event the Motion is not approved by the Judge of Compensation Claims, this
release shall be completely void and of no effect whatsoever.
This Release shall not in any way be eonstru.ed as an admission by the employer, CITY
OF MIAMI, of any liability or acts of wrongdoing or discrimination,
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Humberto Diaz v. City of Miami
This Tentative Settlement Conference Agreement was duly executed by the parties on the
date(s) indicated below,
By:
EMPLOY E/CLAIMANT
BY:
oria M. Garci , Esq.
Gloria M. Garcia, P.A.
6500 Cow Pen Road
Suite 302
Miami Lakes, Florida 33014-7625
Thomas Glick, Esquire
MEDIATOR
BY:
Date;
Date:
46/..2EL_
Date: Jb
Angella Breadwood
DEPARTMENT OF RISK MANAGEMENT Date
VICTORIA _11 JEZ, City Attorney Date 4/21/21
WILLIAM A. JULIACHS, Senior Assistant City Attorney
444 S.W. 2ND AVENUE, SUITE 945
MIAMI, FLORIDA 33130
TELEPHONE: (305) 416-1800
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Humberto Diaz v. City of Miami
By: Date:
Lucy Silva, Claims Adjuster
USIS, Inc. Representative
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