Luks Santaniello's Florida Workers Compensation blog

How the Coronavirus Spread

2020-03-22T14:58:00.001-07:00

Interesting article on the spread of Coronavirus.

https://www.nytimes.com/interactive/2020/03/22/world/coronavirus-spread.html?smid=tw-nytimes&smtyp=cur

Is coronavirus compensable under WC?

2020-03-11T18:09:00.002-07:00

According to the NCCI, The answer to that question is maybe. While WC laws provide compensation for “occupational diseases” that arise out of and in the course of employment, many state statutes exclude “ordinary diseases of life” (e.g., the common cold or flu). There are occupational groups that arguably would have a higher probability for exposure such as healthcare workers. However, even in those cases, there may be uncertainty as to whether the disease is compensable. Would time away from work during recovery be considered “temporary disability” or is it just normal “sick time”? https://www.ncci.com/Articles/Pages/Insights-COVID19-WorkersComp.aspx

CMS ISSUES COVD-19 FAQ RELEASE FOR MEDCAL PROVIDERS

2020-03-06T16:49:00.002-08:00

CMS ISSUES COVD-19 FAQ RELEASE FOR MEDCAL PROVIDERS

https://www.cms.gov/newsroom/press-releases/covid-19-response-news-alert-cms-issues-frequently-asked-questions-assist-medicare-providers

Workers’ Comp 101 -- Chapter 2 -- What is an Employee.

2020-03-05T12:33:00.000-08:00

Workers’ Comp 101 -- Chapter 2 -- What is an Employee.

Today, we will discuss who qualifies as an employee in Florida #Workcomp. You would think that would be a simple definition. However, as you know, nothing in the laws is simple. The Florida Statute uses 1779 words to define what is and is not an employee.

To be honest, in most cases, there is no issue to whether the injured party is an employee. The most common cases in which there is a question of whether an injured party is an employee is in the construction industry and when there is an independent contractor situation. We will discuss contractors and independent contractors at a later date. But first, we need to get our hands around what an employee is and the basic exceptions to being employee. As this is just an introduction into Florida Worker’s Laws, it is highly recommended that additional research be done if you have a case in which the injured party employment status is called into question. The information contained herein is not intended to be legal advice.

The basic definition of “Employee” is found under Florida Statute 440.02(15)(a). It reads that that an “Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors.

The term Employee also includes:

1 A sole proprietor or a partner who is not engaged in the construction industry, devotes full time to the proprietorship or partnership, and elects to be included in the definition of employee by filing notice thereof as provided in s. 440.05.

2 All persons who are being paid by a construction contractor as a subcontractor, unless the subcontractor has validly elected an exemption as permitted by this chapter, or has otherwise secured the payment of compensation coverage as a subcontractor, consistent with s. 440.10, for work performed by or as a subcontractor.

3 Includes independent contractor working or performing services in the construction industry.

Ok but what about the exceptions…glad you asked…….the first exception. The definition of “employee” does include any person who is an officer of a corporation and who performs services for remuneration for such corporation within this state, whether or not such services are continuous, however, any officer of a corporation may elect to be exempt from this chapter by filing notice of the election with the department as provided in s. 440.05.

Okay, but if the officers of a corporation are engaged in the construction industry, ”no more than three officers of a corporation or of any group of affiliated corporations may elect to be exempt from this chapter” They will need to file a notice of the election with the department as provided in s. 440.05. Furthermore, the officers must be shareholders, each owning at least 10 percent of the stock of such corporation and listed as an officer of such corporation with the Division of Corporations of the Department of State, in order to elect exemptions under this chapter.

The term “affiliated” “means and includes one or more corporations or entities, any one of which is a corporation engaged in the construction industry, under the same or substantially the same control of a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term “affiliated” includes, but is not limited to, the officers, directors, executives, shareholders active in management, employees, and agents of the affiliated corporation. The ownership by one business entity of a controlling interest in another business entity or a pooling of equipment or income among business entities shall be prima facie evidence that one business is affiliated with the other.

The term ‘Employee” does not include the following:

1 An independent contractor who is not engaged in the construction industry.

2. A real estate licensee, if that person agrees, in writing, to perform for remuneration solely by way of commission.

3. Bands, orchestras, and musical and theatrical performers, including disk jockeys, performing in licensed premises as defined in chapter 562, if a written contract evidencing an independent contractor relationship is entered into before the commencement of such entertainment.

4. An owner-operator of a motor vehicle who transports property under a written contract with a motor carrier which evidences a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract, if the owner-operator is required to furnish motor vehicle equipment as identified in the written contract and the principal costs incidental to the performance of the contract, including, but not limited to, fuel and repairs, provided a motor carrier’s advance of costs to the owner-operator when a written contract evidences the owner-operator’s obligation to reimburse such advance shall be treated as the owner-operator furnishing such cost and the owner-operator is not paid by the hour or on some other time-measured basis.

5. A person whose employment is both casual and not in the course of the trade, business, profession, or occupation of the employer.

6. A volunteer, except a volunteer worker for the state or a county, municipality, or other governmental entity. A person who does not receive monetary remuneration for services is presumed to be a volunteer unless there is substantial evidence that a valuable consideration was intended by both employer and employee. For purposes of this chapter, the term “volunteer” includes, but is not limited to:

a. Persons who serve in private nonprofit agencies and who receive no compensation other than expenses in an amount less than or equivalent to the standard mileage and per diem expenses provided to salaried employees in the same agency or, if such agency does not have salaried employees who receive mileage and per diem, then such volunteers who receive no compensation other than expenses in an amount less than or equivalent to the customary mileage and per diem paid to salaried workers in the community as determined by the department; and

b. Volunteers participating in federal programs established under Pub. L. No. 93-113.

7. Unless otherwise prohibited by this chapter, any officer of a corporation who elects to be exempt from this chapter. Such officer is not an employee for any reason under this chapter until the notice of revocation of election filed pursuant to s. 440.05 is effective.

8. An officer of a corporation that is engaged in the construction industry who elects to be exempt from the provisions of this chapter, as otherwise permitted by this chapter. Such officer is not an employee for any reason until the notice of revocation of election filed pursuant to s. 440.05 is effective.

9. An exercise rider who does not work for a single horse farm or breeder, and who is compensated for riding on a case-by-case basis, provided a written contract is entered into prior to the commencement of such activity which evidences that an employee/employer relationship does not exist.

10. A taxicab, limousine, or other passenger vehicle-for-hire driver who operates said vehicles pursuant to a written agreement with a company which provides any dispatch, marketing, insurance, communications, or other services under which the driver and any fees or charges paid by the driver to the company for such services are not conditioned upon, or expressed as a proportion of, fare revenues.

11. A person who performs services as a sports official for an entity sponsoring an interscholastic sports event or for a public entity or private, nonprofit organization that sponsors an amateur sports event. For purposes of this subparagraph, such a person is an independent contractor. For purposes of this subparagraph, the term “sports official” means any person who is a neutral participant in a sports event, including, but not limited to, umpires, referees, judges, linespersons, scorekeepers, or timekeepers. This subparagraph does not apply to any person employed by a district school board who serves as a sports official as required by the employing school board or who serves as a sports official as part of his or her responsibilities during normal school hours.

12. Medicaid-enrolled clients under chapter 393 who are excluded from the definition of employment under s. 443.1216(4)(d) and served by Adult Day Training Services under the Home and Community-Based or the Family and Supported Living Medicaid Waiver program in a sheltered workshop setting licensed by the United States Department of Labor for the purpose of training and earning less than the federal hourly minimum wage.

13. Medicaid-enrolled clients under chapter 393 who are excluded from the definition of employment under s. 443.1216(4)(d) and served by Adult Day Training Services under the Family and Supported Living Medicaid Waiver program in a sheltered workshop setting licensed by the United States Department of Labor for the purpose of training and earning less than the federal hourly minimum wage.

Next we will discuss employee as it relates to the construction industry.

Medicare and Workers Compensation

2020-03-03T06:08:00.001-08:00

Medicare is like the mob. They’re protecting their turf. Some have chosen not to pay heed to their warnings. They have given us warnings. Non compliance is everywhere. Medicare ain’t playing. It’s mandatory. Know the facts, be proactive-start compliance efforts early. #LSlaw

Coming and going rule

2020-03-02T18:48:00.001-08:00

Coming and going rule

Workers’ traveling to and from work are not covered under WC. Coming and going rules ends when the employee enters or leaves the employer’s premises.

Pertinent Coming and going exceptions:

Premises exception - What are the employer’s premises: Does Home depot own or control the parking lot??

Special hazards exception – a special hazard on a normal route used by an employee to enter and exit from the place of work can under certain circumstances become a hazard of employment

Case law

Doctor's Business Service, Inc. v. Clark, 498 So.2d 659, 11 Fla. L. Weekly 2444 (Fla. App. 1 Dist., 1986)

Barbara S. Clark, who was injured on a public sidewalk while proceeding from the employer-owned parking lot to the entrance of her employer's office building, suffered a compensable accident under the Florida Workers' Compensation Act. We therefore affirm.

In that case, the claimant parked in the employer-owned parking lot and proceeded to the employer's office on the public sidewalk. She slipped on the sidewalk near the entrance to the employer's business injuring her left ankle and both knees. According to her undisputed testimony, her fall was caused by a misstep on a rough and uneven part of the public sidewalk. The deputy commissioner ruled that Clark's injuries, which occurred on a public sidewalk while she was taking the most direct route between two portions of the employer's premises were compensable and constituted an exception to the going and coming rule.

There is no doubt that the direct route between a company owned or leased parking lot is considered "on premises" for the purposes of workers' compensation coverage. Jenkins v. Wilson, 397 So.2d 773 (1st DCA Fla.1981) and Horrobin v. Parkway General Hospital, IRC 2-3340 (1978).

Had the claimant used public parking and sustained the same accident in the same location, she would not have been covered for workers' compensation purposes. Greenberg v. Creative Group Advertising, 6 F.C.R. 281 (1960). (footnotes omitted)

This court recently applied the "special hazard" exception in Petroske v. Worth Avenue Burger Place, 416 So.2d 856 (Fla. 1st DCA 1982). There, the claimant stepped in a pot hole in the driveway which abutted her employer's business and through which she normally entered to go to work, and was injured. Her injuries were held to be compensable though the driveway was not the sole route to her place of employment, and notwithstanding the fact that the accident occurred on a site not owned by her employer and which was used by other tenants in the building which housed her employer's business. The court concluded that the pot hole constituted a special hazard on an access route which was served primarily to provide entry and exit to the claimant's place of employment.

Security Bureau, Inc. v. Alvarez, 654 So.2d 1024 (Fla. App. 1 Dist., 1995)

The JCC held that the injury was compensable because it found that claimant had been directed to park in a public parking Page 1025 lot thereby making that parking lot a part of the zone and environment of her employment. The JCC's finding in this regard is not supported by the evidence, and, as a matter of law, claimant's injury is not compensable under any exception to the going and coming rule. We therefore reverse.

The going and coming rule provides that injuries sustained by an employee going to or coming from work are not compensable. There is an exception to the going and coming rule, called the premises rule. Under the premises rule, an injury sustained by an employee with fixed hours and place of work who is injured while going to or coming from work is in the course of employment if it occurred on the employer's premises and not if it occurred off the employer's premises.

The going and coming rule, the exception thereto known as the premises rule, and the exceptions to the premises rule are explained in Doctor's Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986), review denied mem., 506 So.2d 1041 (Fla. 1987). Under the exceptions to the premises rule, off-premises injuries may be compensable if certain circumstances are present. Those circumstances include special hazards on the normal route to work, travel on the public way between two parts of an employer's business, and injury in an area which is customarily used by the employer for his own purposes.

The crucial question is not whether the claimant was directed to park in the lot in which she was injured, instead of closer spaces. Rather, to fit within this exception to the premises rule, the lot in which the injury occurred must be under some control or subject to some special use by the employer.

off-premises injury not compensable in absence of evidence that the employer ever modified, controlled or habitually used the road where the injury took place for its own purposes). In other words, the employer's use of the property must be for purposes other than those shared by the general public

in Maas Brothers v. Peo, 498 So.2d 657 (Fla. 1st DCA 1986) a different fact situation led to the opposite result. As in El Sirocco Motor Inn, Inc. v. Prekop, the employer in Maas Brothers v. Peo neither leased, owned nor maintained the parking lot. Parking spaces near the store entrances were being reserved for customers. Therefore, employees had been directed to park in a particular area of the public parking lot. The employee was injured in the parking lot, and the injury was held to be compensable. However, the distinguishing fact is that the area of the lot in which the employees were required to park was near some ongoing construction work which created a special hazard which led to the claimant's injury.

We conclude that in the absence of any evidence of actual domination or control by the employer over the parking lot and its use, this injury is not compensable under any exception to the going and coming rule.

Ryan v. Boehm, Brown, Rigdon, Seacrest & Fischer, 673 So.2d 494 (Fla. App. 1 Dist., 1996)

We reverse because determination of the issue in this case depends upon an established exception to the going and coming rule, and does not involve a special hazard analysis.

In this case, the sole and proximate cause of the claimant's injury appears to have been her failure to lift her foot high enough to cross a curb of apparently normal height after crossing the street on her way to work. The claimant subjected herself to the fall, and there was no proof that the curb was defective or in disrepair. Without that evidence, I find there is no proof that a normal curb on a public street constitutes a hazard, special or otherwise....

As the JCC recognized, the special hazard exception to the going and coming rule brings an off-premises injury within the course of employment on proof that a special hazard on the normal route to or from employment caused the injury.

Appellant argues, however, that the special hazard exception does not control this case. Instead, she contends that because her injury occurred while traversing the distance between two distinct portions of the employer's premises, and in a manner reasonably required by her employment, she was within the course of her employment without regard to the special hazard rule. We note that despite the employer's argument to the contrary, the JCC rejected the notion that because claimant crossed N.E. 1st Street in the middle of the block, rather than at the corner, she engaged in a deviation "from her employment in such a way as to adversely affect her entitlement to benefits."

We find that the special hazard rule, urged by appellees, only comes into play if a workers' compensation claimant is otherwise outside the course of her employment. If, under the law and facts of a particular case, the claimant is within the course of employment at the time of her injury, no need exists to resort to the special hazard rule.

"There is little doubt that the public sidewalk or street between two parts of the business premises is considered part of the premises for workers' compensation purposes." Clark, 498 So.2d at 662, citing Fernandez v. Consolidated Box Co., 249 So.2d 434 (Fla.1971). "There is no doubt that the direct route between a company owned or leased parking lot is considered 'on premises' for the purposes of workers' compensation coverage." Clark, 498 So.2d at 662, citing Jenkins v. Wilson, 397 So.2d 773 (Fla. 1st DCA 1981). As observed by then Deputy Commissioner DeMarko, whose order was approved by this court in Clark, "the parking lot extends the employer's premises to include the direct route to and from the office." 498 So.2d at 662.

The fact is that Ryan had to cross the street in order to get from the parking lot to the office. For purposes of the legal analysis, her misstep on the curb does not differ from a trip on a step inside the employer's office building. Again, referring to Judge DeMarko's order which this court approved in Clark, "it must be remembered that the (workers' compensation) act is basically no-fault in nature. The employer's liability has nothing to do with fault. Liability is based on the employment relationship. So it is that the negligent claimant is entitled to benefits against the totally innocent employer.... [T]he key element in establishing benefits in this case is the company owned parking lot."

Byerley v. Citrus Pub., Inc., 725 So.2d 1230 (Fla. App., 1999)

Byerley was injured in an accident which occurred on the employer's premises. She had completed work, had punched out for the day, and was on her way home when the accident occurred. Previously, Byerley had placed boxes which she intended to take home on the loading dock. In order to get the boxes, she deviated from the most direct route to the parking lot to get to the loading dock. On her way, she tripped over a bench with protruding runners that had been placed on the sidewalk adjacent to the loading dock. As a result of the accident, Byerley suffered a compression fracture of the vertebrae in her back, pulled her right groin muscle, fractured her left kneecap, and suffered numerous abrasions. Her total medical bills exceeded $30,000.

Byerley filed a claim for workers' compensation benefits which was denied by the employer and its workers' compensation carrier. The notice of denial stated: "Injury did not arise out [of] the course and scope of [Byerley's] employment. Employee was clocked out and had exited the building, when she tripped over a bench on the pavement."

Byerley filed a tort action. The employer asserted in its answer, among other things, that Byerley's exclusive remedy was workers' compensation. See 440.11, Fla. Stat. The employer alleged that "Byerley was in the scope of her employment and the tort claim against Citrus Publishing is barred by the Workers' Compensation Immunity as provided by Florida Statutes."

The trial court granted the motion and entered summary final judgment in the employer's favor, finding "as a matter of law that the alleged accident occurred in the scope and course of Mrs. Byerley's employment and is the major contributing cause to her injuries." The court relied upon Perez v. Publix Supermarkets, Inc., 673 So.2d 938 (Fla. 3d DCA 1996), and Vigliotti v. K-mart Corp., 680 So.2d 466 (Fla. 1st DCA 1996), to support its decision. The trial court also stated, "Plaintiffs have not asserted estoppel [725 So.2d 1232] nor does this Court find that it is supported by the record presented." We disagree with this ruling.

In this case, the notice of denial stated that Byerley's injury was not covered because it did not occur in the course and scope of her employment. Byerley accepted and relied on the denial, bore her medical expenses, then sued the employer in tort as permitted by [725 So.2d 1233] the statute. Here, the elements of estoppel are shown, and therefore, the employer is not entitled to summary judgment on the basis of the Workers' Compensation Act.

Sentry Ins. Co. v. Hamlin, 69 So.3d 1065 (Fla. App., 2011)

Claimant was injured when he attempted to retrieve personal property from a car which his lender was repossessing from his employer's parking lot. There is no dispute that the accident resulting in the injuries occurred in the course and scope of Claimant's employment. The question we address focuses only on the first part of the coverage formula, ―arising out of work performed,‖ as set forth in section 440.09, Florida Statutes (2008).

Because Claimant was on a purely personal mission having no relationship to work, he is unable to demonstrate he suffered an accidental compensable injury arising out of a risk of his employment. Accordingly, we REVERSE the finding of compensability.

This workers' compensation claimant appeals an order of the deputy commissioner finding that her injury was the result of a non-compensable accident. We reverse.

Petroske v. Worth Ave. Burger Place, 416 So.2d 856 (Fla. App. 1 Dist., 1982)

The claimant fell and was injured when she stepped in a pothole in the driveway abutting the employer's place of business. This driveway led to the rear entrance of the place of employment and the accident occurred just as claimant was about to enter the building through that door, as was her normal custom.

The deputy commissioner found that the "special hazard" exception to the "going and coming rule" 1 did not apply because the driveway was not owned by the employer and was used by other tenants in the building which housed the employer's business. He also stated that the special hazard doctrine did not apply because the driveway was not the sole route to the place of employment, since the claimant could have entered through the front door.

Whether or not the route on which the accident occurred was the sole means of ingress and egress to the place of employment has no conclusive bearing on whether or not the special hazard doctrine is applicable. Naranja Rock v. Dawal Farms, 74 So.2d 282 (Fla.1954). Nor does the fact that the accident occurs on a site leased by the landlord and shared with other tenants, in and of itself, preclude compensability. Stone v. Tuscawilla Club, 7 FCR 345 (1973).

The decisive factor in determining the applicability of the special hazard doctrine in this case is the fact that the special hazard existed on an access route serving primarily to provide entry and exit to the place of employment.

FRAUD--Volusia County Sch. Bd., 890 So.2d 397 (Fla. App., 2004)

2020-03-02T09:02:00.000-08:00

A claimant's statements of medical history, A claimant's statements of medical history, prior accidents, or the extent of current injuries are "relevant and material whether made to health care providers, or during testimony given at depositions or the merits hearing."
In this case, claimant made represnttions to the doctor and to the E/C, and to the JCC, which were refuted by video surveillance. That another physician testified he did not believe the video depicted inconsistencies does not change the result. A JCC need not explain why he or she accepted testimony of one physician over another as long as it does not appear that he or she ignored or overlooked the contrary testimony.

Workers' Comp 101 - history

2020-03-02T08:45:00.000-08:00

Workers’ Compensation- what is it? How did we get here?

The Florida Workers’ Compensation system……..it is supposed to be a self-executing system. Basically, a person unfortunately gets hurt at work, they get sent to the doctor, the doctor patches them up and they return to work when released by the doctor to return to work. If the injured person loses pay from work, they get paid for a certain percentage of their salary for time missed from work due to the injury. That’s pretty much the way Florida Workers’ Compensation is supposed to work....but as we all know, there is so much more to the story.

This will be the first in a multi part series that will go over the basics of the Florida Workers’ compensation system. It is written for any and all that are interested in, work in, or just want to know more about the Florida Workers’ Compensation system. Basically, it is a bird’s eye walk-through the system. It is not meant as a critique of the system nor will it written as an opinion piece and it will hopefully not be slanted towards an injured person or the employer. It will be just as Joe Friday from Dragnet would say, just the facts, ma’am.

The series will be written for education purposes only; it is not intended to be legal advice. If anyone has questions on the content, please feel free to reach put to me for a more in-depth conversation or post your questions online and I will try to respond as soon as possible.

In order to start, we need to understand and comprehend what the Florida Workers’ compensation system is, we need to start with a brief history.

Workers’ compensation has been called a "Grand Bargain" between employers and workers that developed at the beginning of the 20th century. Under this Grand Bargain, workers receive guaranteed, no-fault benefits for injuries, illnesses, and deaths, but forfeit their rights to sue their employers. Employers receive protection from lawsuits but must provide benefits regardless of fault.

In the early 1900’s, the United States was going through the industrial revolution. We all know the stories, children working, no regard for employee safety, long hours, It was up to the injured employee to prove that the employer was negligent.

The first compensation system in America was proposed by President Taft and put into law in 1908 to cover those workers involved in interstate trade.

The first comprehensive workers' compensation law was finally passed shortly thereafter in Wisconsin in 1911. Nine other states passed regulations that year, followed by thirty-six others before the decade was out. Florida did not start its Workers’ Compensation program until 1935. Florida created the Industrial Commission which began actual operations in June 1935. The final state to pass workers' compensation legislation was Mississippi in 1948.

Initially, there was no compensation for the first fourteen days of the disability. Compensation for disability was not to exceed $18.00 per week. Compensation for disability was paid at the rate of 50%, 55%, and 60% of the employee's average weekly earnings, dependent upon the number of dependents of the employee. Medical treatment was furnished at a cost not to exceed $250.00, except in surgical cases in which the maximum expense to the employer was $500.00. Compensation could not exceed 350 weeks and it could not exceed $5,000.00.

According to the Florida’s Division of Workers’ Compensation website, in the first year of the Florida Industrial Commission, 10,977 cases on "workmen's" compensation were reported by Florida's 67 counties. Of these, 2,983 were reported in Dade County and 1,985 were reported in Duval County. Benefits paid were approximately $290,434.00. By contrast, in 2019, there were almost 51,000 litigated cases in the state (7112 litigated cases in Dade county alone) and countless unlitigated case with over $637,500,000.00 paid in benefits.

As time progressed, the Florida Worker’s compensation system changed in an attempt to keep up with the times. The first major change occurred the late 70’s. Since that time, it appears that every year there was some change to the workers’ compensation system. The last major overhaul was in 2003. We will touch on some of the changes as we go through the system. The next topic we will cover is what is an employee, a simple distinction you might say, but one that the statute takes a few pages to define.

Moya v Trucks and Parts

2014-01-06T18:34:00.001-08:00

This December 20, 2012 1DCA decision affirmed Judge Jenkins JCC opinion. The issue being tried was authorization for an MRI of the right shoulder.

In a final hearing in 2009, the JCC ruled that the claimant was at MMI for the right shoulder and that no further treatment to the right shoulder was needed.

In 2012, the claimant was given a prescription for an MRI of the right shoulder and filed a PFB for same. The EC denied the MRI request and filed a motion for summary final order raising the defense of res judicata.

The sole issue raised by the claimant was that the issue was not appropriate for a summary final order. The Claimant submitted no affidavits, depositions, or other evidence to substantiate a material issue of fact that would preclude application of res judicata to his claim. Instead, he merely suggested the existence of such facts, providing no supporting evidence as required by rule 60Q-6.120(3), and represented that the treating doctor's deposition would be set, but gave no date or timeframe, and sought no extension of time.

The JCC ruled the JCC appropriately entered a summary final order because Claimant failed to demonstrate a material factual issue precluding application of res judicata based on the January 2009 order.

Click here to see the JCC opinion.

Robert Young v American Airlines

2014-01-05T04:55:00.001-08:00

This December 31, 2013 1DCA opinion reversed Judge Rosen's JCC decision. This case had been before the 1DCA in 2012. In the 2012 case, the 1DCA reserved the JCC decision because the JCC erred in admitting and relying upon an unauthenticated report from the Employer/Carrier’s independent medical examiner.

The 1DCA remanded the case back to the JCC with instructions to enter a final order awarding PTD benefits based on the uncontroverted opinions of the claimant's IME unless the JCC found the opinion unpersuasive.

On remand, the JCC rejected The claimant IME's opinions because he “was not persuaded”. The JCC provided no additional factual or legal reasons for the rejection of the uncontested expert opinions regarding Claimant’s status as having reached maximum medical improvement and his permanent work restrictions.

In this appeal, Claimant argues the JCC erred by rejecting the claimant IME's uncontroverted medical opinions because no legally valid basis for such rejection was provided by the JCC.

The 1DCA concluded that the JCC erred by failing to provide a valid reason for rejecting the unrefuted medical opinions based on findings such as flawed medical history, inherent illogic or incredibility, or any other reasonable basis for finding The claimant IME's opinions unreliable or unworthy of belief.

Click here to see the JCC Opinion

CESPEDES V YELLOW TRANSPORTATION

2013-04-25T10:23:00.000-07:00

This April 24, 2013 1DCA opinion affirmed in part and reversed in part Judge Portuallo's JCC decision.

in this case, the claimant argued that the JCC erred by:

(1) improperly shifting onto Claimant the burden to prove the compensable injury was the major contributing cause (MCC) of his disability and need for surgery;

(2) finding that the medical services at issue did not constitute “emergency care or services,” and that lack of notice to the Employer/Carrier (E/C) precluded authorization or payment; and

(3) finding the opinion testimony from the emergency room physician, Dr. Acebal, is not admissible pursuant to the “self-help” provisions contained in chapter 440.

The 1DCA reversed on the first two grounds raised and affirmed on the last.

As background, the Claimant injured his lower back in 2006. the Claimant declined surgical treatment, and in September 2006, Dr. Christopher Brown placed the Claimant at MMI with a 6% impairment rating. From 2006 through 2010, the Claimant returned to Dr. Brown on several occasions due to recurrent low back pain. In December 2010, a recommendation was made for epidural steroid injections. Before receiving the second injection, he developed significant back and leg pain and had difficulty standing.

On March 19, 2011, Claimant was admitted to and treated in the emergency room at Kendall Regional Medical Center ith a sedative and an injectable pain medication before discharge. Claimant returned to Kendall Regional Medical Center emergency room the next day and was admitted under the care of Dr. Pablo Acebal. An MRI revealed a massive herniated disc at L5-S1 that was severely compressing the nerve roots of the spine. Dr. Acebal recommended prompt surgery at L5-S1 to treat the condition.

The same day, Dr. Acebal contacted Dr. Brown and offered to transfer Claimant’s surgery to Dr. Brown. Dr. Acebal advised Dr. Brown that Claimant needed surgery because he had a “huge disc.” According to Dr. Acebal, had Dr. Brown given any indication that he would have operated on Claimant “quite quickly” (meaning the next day), he would have transferred Claimant to Dr. Brown’s care.

Dr. Brown advised Dr. Acebal that if Claimant’s condition was emergent and required surgery, “he probably shouldn’t be transferred.” In deposition, Dr. Brown opined that if Claimant could have been transferred, as offered by Dr. Acebal, then the surgery would be “more of an elective type of thing” and “he really doesn’t need to be transferred,” because Claimant could be treated on an outpatient basis.

On March 22, 2011, Dr. Acebal performed surgery on Claimant at L5-S1.

On March 23, 2011, the E/C denied any future medical care based on the adjuster’s conversation with the workers’ compensation coordinator in Dr. Brown’s office. The adjuster was advised that Claimant had informed Dr. Brown’s office that “he was in the emergency room, an MRI had been done, and they were going to set him up for emergency surgery.”

The EC defended the denial “industrial accident not the MCC of temporary disability; industrial accident no longer the MCC of the current need for treatment as Claimant underwent surgery with an unauthorized physician; such surgery was unauthorized and did not constitute emergency care; carrier not placed on timely notice of alleged emergency care; and surgery not medically necessary or causally related to accident.”

At the JCC Merits Hearing, the JCC held that Dr. Acebal’s medical opinion was inadmissible because he was not an “authorized physician, independent medical examiner, or expert medical advisor”, and admitted the doctor’s deposition for “fact purposes only.”

The E/C presented deposition testimony of Dr. Brown that the compensable injury was not the MCC of Claimant’s surgery, but Dr. Brown could not determine the MCC, because he was unaware of any other potential causes of the Claimant’s need for treatment. Dr. Brown further testified that although he did not observe Claimant or his condition at the medical clinic, the Claimant’s surgery was not performed on an emergency basis.

The 1DCA indicated that because the injury requiring emergency care and services was a compensable workplace injury (and here, there is no dispute over the fact that the services were medically necessary), the emergency services provided by Dr. Acebal were also “compensable” under section 440.13(3)(b).

The 1DCA concluded that based on the above conclusions, that were established without reliance on Dr. Acebal’s medical opinion testimony, that Dr. Acebal became an authorized treating provider for the purposes of section 440.13(5)(e), Thus, Dr. Acebal’s medical opinion testimony was admissible in the proceedings before the JCC.

In light of Dr. Acebal’s medical opinion testimony, which was not rebutted or impeached, the 1DCA concluded that the surgery performed by Dr. Acebal was performed to treat an emergency medical condition.

Clck here to see the 1DCA opinion

QUIROGA v FIRST BAPTIST CHURCH

2013-02-13T18:15:00.000-08:00

This January 16, 2013 1DCA opinion affirmed Judge Pecko's JCC ruling.

In this case, the claimant Claimant challenged an order of theJCC that accepts the opinion of one medical doctor over another and thereby denied benefits. The claimant did not request an EMA.

The claimant's argument was that the JCC committed fundamental error by not appointing, sua sponte, an EMA to resolve the disagreement in medical opinions.

The Claimant also argued that the JCC has no “jurisdiction” to resolve medical disagreements unless an EMA is first appointed.

The 1DCA wrote that "Without equivocation, this court has held that a JCC’s failure to order an EMA evaluation is not fundamental error. Although a JCC is required to appoint an EMA where there is a disagreement in medical opinions, a party who does not timely seek the appointment of an EMA below will not be heard on appeal to complain of the failure to designate an EMA.” The 1DCA further indicated that "this Court has consistently held that it is the JCC’s role and duty to resolve disputes in medical testimony. "

As for timeliness of the EMA request, the 1DCA indicated that an EMA must be requested timely by the party seeking such relief on appeal.

All in all, it appears that this case gives the JCC back some of its power. Unless the claimant or the EC requests an EMA in a timely fashion, the JCC is not under any obligation to assign an EMA.

Click here to see 1DCA opinion

Walker v Broadview

2012-10-27T05:44:00.001-07:00

This August 8 1DCA opinion reverses Judge Lazzara's ruling.

The case revolves around a claimant who was requested by her employer to drop off a package for shipping. As she was returning to her desk, the claimant turned a corner in the hallway and "felt her right foot slip from under her' and fell. As a result of the fall, the claimant sustained a left shoulder rotator cuff tear. The claimant had no prior history of problems with her left shoulder. There was no evidence that the fall was caused by a medical condition. The JCC found that the claimant had no pre-existing conditions that could have caused the fall. However, the JCC still held that the 'claimant's accidental injury on the employer's premises did not arise out of her employment because her work activity at the time of the incident was not the major contributing cause of her fall or injury."

The 1DCA held that in the absence of competing causes of the claimant's accident/injuries then the claimant had satisfied the major contributing cause requirement. Since it was not disputed that the claimant was actively engaged in a work related activity, the only question was the major contributing cause issue. The 1DCA opined that since there were no competing caused of the accident and injury, the claimant's work activity was de facto, the major cause.

Click here to see the 1DCA opinion

Williams v Department of Corrections

2012-10-27T05:03:00.001-07:00

This August 31, 2012 1DCA opinion reversed Judge Winn's JCC decision.

In this case, the timeline is important. In short, the timeline was:

A PFB for PTD benefits was filed on January 25, 2011.

The carrier received the PFB on January 28, 2011.

On February 16, 2011, the carrier accepted the claimant as PTD (18 days after receipt of the PFB). The very next day the carrier issued a $2,000 advance that had previously been requested by the claimant.

Finally on March 10, the carrier issued a check paying the claimant PTD benefits minus the $2,000 cash advance.(the first installment of PTD benefits was made 41 days after the PFB was received by the carrier.)

Claimant's counsel filed for attorney fees asserting as grounds that the carrier initially denied the claim but ultimately accepted the claim. The JCC denied fees concluding that the advance paid was a discharge of liability from the date thereof until such advance is recouped by offset against subsequent benefits. The JCC also concluded that the advance was paid out within 30 days of the carrier's receipt of the PFB.

Because the issue on appeal was based solely on statutory interpretation, the 1DCA reviewed the case De Novo. The 1DCA opined that F.S. 440.34(3)(b) indicated that a carrier is deemed to have denied the PFB if it is not responded to within 14 days of receipt. The 1DCA went on to opine F.S. 440.34 also indicates that attorney fees do not attach until 30 days after the carrier receives the petition.

In this case the carrier failed to respond within the initial 14 day period and the PTD payments did not commence until 41 days after the PFB was received.

As for the payment of the advance, the 1DCA concluded that the "advance payment occurs without regard to the carrier's liability to pay a claimant compensation and/or benefits under chapter 440". The y went on to state "the statute does not require proof that the injured worker will actually receive any benefits in the future....limit advances to cases in which compensability is established." The 1DCA continued indicating that an advance is not a payment of compensation due to a claimant.

timeliness is determined by the "date the checks are put in the mail." In this case more than 30 days had elapsed before the checks were place in the mail, the 1DCA held that the claimant was entitled to recover a reasonable attorney's fee.

click here to see the 1DCA opinion

Williams v Tarmac America

2012-10-26T19:31:00.003-07:00

This August 10, 2012 opinion reverses Judge Rosen's ruling.

The 1DCA held that the JCC erred in making findings on matters outside of the issues framed for the hearing. The JCC had denied a claim for PTD benefits basd on the grounds that the claimant had not proven the existance of a back injury due to rpetitive trauma with a date of accident of January 26, 2004.

The PFB filed by the claimant never raised the issue of compensability. In this case, the claimant had a prior accident while working for the same employer. That case never resolved. On March 10, 2004, the claimant resigned from the employer. However, it was not until 2010 that the claimant filed a PFB for PTD benefits using March 10, 2004 as the start date for the PTD benefits. The PFB mentioned a repitive trauma accident. He used January 26, 2004 as the date of accident.

The PFB assumed that the accident was accepted as compensable. The JCC ruled that the claimant did not establish a repetitve trauma to his back.

On appeal, the claimant raised the fact that they never raised the claim of compensability. The EC never addressed challenged by the Employer/Carrier. The provision of medical care precluded any challenge to the compensability of the case. The 1DCA agreed that the JCC stepped outside of its boundaries and ruled upon an issue that was not before the JCC court.

Click here to see the 1DCA opinion

Bergstein v Palm Beach County School Board

2012-08-30T03:32:00.002-07:00

This August 7, 2012 1 DCA opinion affirmed Judge D’Amrosio’s ruling.

The 1DCA held that any E/C asserting the jurisdictional defense that the payment of outstanding bills for medical care is a reimbursement is conceding that, if any entity is financially responsible for the disputed bills, it is the carrier and not the claimant.

The 1DCA indicated that raising a 440.13(11)(c) defense is a de facto concession by the Employer/Carrier that the services or products billed were provided by an authorized provider for compensable injuries “in accordance with” or “pursuant to” chapter 440 and that the claimant is insulated from financial liability for such charges.

Furthermore, the E/C’s representation was a binding legal concession, by operation of section 440.32(3), and it waived any challenge to the medical necessity of the care.

Click here to see the 1DCA opinion

Williams V City of Orlando

2012-07-02T13:21:00.001-07:00

This June 13, 2012 1DCA reversed Judge Condry's JCC decision. The JCC denied compensability of the claimant's hypertension on the ground she failed to establish eligibility to rely on the statutory presumption occupational causation available via section 112.18.

The claimant met three of the four requirements of section 112.18:

1 She was a police officer,

2 Her condition resulted in disability,

3 She successfully passed a physical examination upon entering into service.

The JCC found that the claimant's essential hypertension did not meet the 4th requirement which indicates that the condition itself be one of those listed in section 112.18: "tuberculosis, heart disease, or hypertension.

The claimant was diagnosed with essential hypertension. She introduced unrefuted medical opinion testimony that essential hypertension was the same thing and the same condition as arterial hypertension.

In Bivens v. City of Lakeland, 993 So. 2d 1100 (Fla. 1st DCA 2008) (citing City of Miami v. Thomas, 657 So. 2d 927 (Fla. 1st DCA 1995)), the 1DCA had previously held that the 112.18 hypertension must be "arterial or cardiovascular."

Click here to see the 1DCA decision

Miami Dade County School Board v Russ

2012-05-31T19:07:00.001-07:00

This May 29, 2012 1DCA decision reverses Judge Hill's JCC decision.

The claimant filed a PFB and the JCC determined that the “initial response” was the November 9 documents prepared by the EC (notice of appearance, request for production, letter of representation, notice of deposition, and letter to the mediator) the JCC concluded that because the E/C did not assert an SOL defense, the E/C had waived that defense.

The E/C argued that its initial response to the Petition for Benefits was filed on November 10, 2009.

Based on the case of Certain v. Big Johnson Concrete Pumping, Inc., 34 So. 3d 149 (Fla. 1st DCA 2010), the 1DCA ruled that that the “initial response” has to explicitly state a position either denying or conceding the particular claims therein.

Risco v Alexander

2012-05-17T18:24:00.001-07:00

This May 15, 2012 1 DCA reverses Judge Terlizzese's JCC decision that the claimant had not settled his workers compensation claim.

While represented Claimant’s signed an “Exit Interview & Separation of Employment Agreement”. After signing the Release, the claimant filed a petition for benefits. The plain language of the release indicates it applied to Claimant’s employment relationship with the Employer, it was not necessary for the agreement to be submitted to the JCC for it to be a settlement of Claimant’s workers’ compensation case.

Pursuant to section 440.20(11)(c), a represented “claimant may waive all rights to any and all benefits under this chapter by entering into a settlement agreement releasing the [E/C] from liability for workers’ compensation benefits in exchange for a lump-sum payment to the claimant.”

Stewart v Lakeland Funeral

2012-05-01T19:35:00.000-07:00

This May 1, 2012 1DCA opinion affirmed Judge Lorenzen’s JCC order. The Claimant appealed a final denying compensability of injuries he sustained while driving from his residence to work.

440.092(2) provides that an injury suffered while going to or coming from work does not arise out of or occur in the course of employment, and because neither the special errand nor dual purpose exceptions apply, the 1 DCA held that the JCC correctly denied Claimant’s petition for benefits.

On June 10, 2010, the Claimant was scheduled to be off from work, but he had to attend a memorial service for a client that evening. Although the funeral home had staff to load the equipment needed for the service, Claimant, who normally would have gone directly to the service site, chose instead to go to the funeral home to load the equipment himself, before proceeding to the memorial service. On his way to the funeral home, he lost control of his motorcycle, fell, and was injured.

The “going and coming” rule, section 440.092(2) provides: An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.

The question was whether the Claimant’s ride to the funeral home fell under the going and coming rule. The Claimant acknowledges that under the rule, an injury suffered during travel to or from work is not compensable. He asserts that the rule is inapplicable in his case, however, because on June 10, 2010, he was not regularly scheduled to work, and the purpose of the trip that day was to attend a funeral service, as required by his employer. Consequently, he argues, his ride to the funeral home either constituted a “special errand” or was for a “dual purpose and under those exceptions to the going and coming rule, he argues, his injury is compensable.

“The special errand exception includes employees who, at the time of injury, were on a special errand in response to a call from their employers, and is usually characterized by irregularity and suddenness.” The Claimant’s need to attend the memorial service was neither irregular nor sudden. Rather, being present at such services was a regular part of his job responsibilities.. The facts do not show that the employer asked Claimant at the last minute to attend the service or to go to the funeral home for some purpose. Thus, the special errand exception does not apply.

Under the dual purpose doctrine, “an injury which occurs as a result of a trip, a concurrent cause of which was a business purpose, is within the course and scope of employment, even if the trip also served a personal purpose, such as going to and coming from work.” The sole purpose of Claimant’s travel at the time of the accident was to go to work; regardless of whether he was required to go to the funeral home before heading to the service that day, he had not yet undertaken any business of the employer at the time of the accident. Because Claimant was simply going to work—travel deemed personal by section 440.092(2)—there was no business purpose to his travel. Thus, the dual purpose exception does not apply.

Click here to see the 1DCA opinion.

Perry v Ecolab

2012-04-28T13:00:00.001-07:00

This January 13, 2012 1DCA decision overturned Judge Murphy's JCC Decision

The 1DCA ruled that section 440.20(7) controls the payment of penalties and requires that a 20% penalty be paid if the compensation is not paid within seven days after the order is signed as opposed to after order becomes final.

Click here to see the !DCA opinion

Falcon Farms v Espinoza

2012-04-25T20:03:00.002-07:00

This February 23, 2012 1DCA decision affirmed in part and reversed in part Judge Hill's JCC decision.

The issue at the JCC trial was a change in primary care physician. The JCC awarded the change of physician but also denied compensability of the accident.

Both parties appealed. The E/C argued that the Claimant was not entitled to a change of physician because her condition was non-occupational.

The Claimant cross-appealed arguing that the JCC’s finding of noncompensability is legally inconsistent with the award of a change of physician.

The 1DCA addressed the cross-appeal first. The 1DCA affirmed the JCC's decision denying compensability of the accident. The 1DCA indicated that the claimant did not show that the JCC erred in ruling the accident not compensable.

"The sole basis of Claimant’s challenge on compensability is that the order is incongruous with the award of a change of physician. Claimant did not present this argument to the JCC – not even on rehearing, once the basis of the JCC’s ruling was clear; therefore, Claimant did not preserve such an error for appellate review".

The 1DCA then addressed the E/C's argument. The 1DCA indicated that since the accident was not compensable, the E/C’s argument on appeal has merit.

The 1DCA utilized section 440.13(2)(f) as the basis for their decision and indicated that the plain language of the statute reads it "requires the injury to be a "work-related injury." The JCC found the Claimant presented no "persuasive medical evidence" that an injury arose out of employment, and Claimant did not challenge that finding.

The 1DCA reversed the JCC decision as it relates to awarding a change of physician.

Click here to see the 1DCA opinions

Nearly $250,000 in fraudulent insurance claims

2012-04-23T16:50:00.001-07:00

14 arrested. Florida CFO Arrests 14 In Undercover Sting At Fraud Clinic.

Click here to see the article

Operation Oxy Alley. The FBI has the coolest names.

2012-04-23T16:44:00.001-07:00

FBI gets another sentence in the pill mill investigation, Operation Oxy Alley, Gino Marquez sentenced to 84 months.

click here to see the article

Big Brother is Watching.

2012-04-23T16:41:00.001-07:00

Technology is making it easier to catch companies that do not have WC insurance

click here to see the article