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Disability Law

Florida Workers’ Compensation Law Blog

News, legislative developments, and court decisions arising under the Florida Workers' Compensation Act.
By David A. McCranie, Esq.

Post Frequency: 1.1/day

Last Entry: August 24, 2009 at 08:40:29

Employee Seeks Job Reinstatement After Termination for Fraud

Posted on August 02, 2008
I wrote here about Escambia County School Board v. Fowler, a case where the school board had terminated the employment of one of its school bus drivers on the grounds that she had committed workers' compensation fraud by making false statements about her medical condition...

General Releases Must Be Specifically Agreed Upon

Posted on August 02, 2008
Bonagura v. Home Depot, decided on 7/21/2008, illustrates what can happen when the terms and conditions of a settlement agreement aren't clearly spelled out by both parties during settlement negotiations. The parties in Bonagura had gone to a mediation conference where they agreed to settle the employee's workers' compensation claim for $50,000 plus an attorney's fee...

Confusion Reigns in "Heart-Lung" Cases

Posted on August 02, 2008
I've written here and here about the quantum and quality of proof which a governmental employer must present in order to rebut the presumption of compensability for heart disease, etc., afforded to firefighters and other law enforcement personnel by §112...

Federal Minimum Wage Set to Increase

Posted on July 22, 2008
The federal minimum wage is set to increase to from $5.85 per hour to $6.55 per hour on July 24. That means the compensation for non-professional attendant care rendered by family members and necessitated by an on-the-job accident in Florida will also increase because that compensation is pegged to the federal minimum wage...

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ADA Amendments: Another View

Posted on July 19, 2008
The ADA Amendments Act of 2008 (H.R. 3195), which passed the U.S. House of Representatives on June 27, is now being considered by the U.S. Senate. The Senate Committee on Health, Education, Labor, and Pensions conducted a hearing on the bill on July 15...

First DCA Rejects Constitutional Challenge to "Horizontal Immunity"

Posted on July 18, 2008
The First District Court of Appeal made quick work of a Jacksonville construction worker's constitutional challenge to the so-called "horizontal immunity" provision of the Florida Workers' Compensation Law which I discussed here. Just three days after hearing oral argument, the court "PCA'd" , i...

Claimant Entitled to "One-Time-Change" Even Though First Physician Never Undertoook Actual Treatment

Posted on July 14, 2008
The claimant is entitled to a "one-time-change-of-physician" under §440.13(2)(f) where the first physician evaluated him and ordered an MRI scan even though he never rendered any actual treatment. So said the First District Court of Appeal in Nunez v...

E/C Not Entitled to Claimant's Financial Records Absent Showing of Relevancy

Posted on July 14, 2008
In Spry v. Professional Employer Plans d/b/a IHOP (decided on 7/7/2008), the First District Court of Appeal granted the claimant's petition for writ of certiorari and quashed the JCC's order compelling the claimant to disclose financial information...

Three JCCs Seek Reappointment; Applications Sought for Two More

Posted on July 14, 2008
JCC Alan M. Kuker of Miami, JCC Daniel A. Lewis of Ft. Lauderdale, and JCC Mary A. D'Ambrosio of West Palm Beach are all seeking reappointment as judges of compensation claims. The three will appear before the Statewide Nominating Commission for Judges of Compensation Claims in Orlando on August 18...

Injured Worker Challenges Constitutionality of "Horizontal Immunity" Provision

Posted on July 12, 2008
Last December, The Florida Times-Union carried this story about Gregory Aikens, a Jacksonville construction worker employed by subcontractor Dee Shoring Co., Inc., who was injured on the job due to the negligence of Miller Electric, another subcontractor on the same job...

Ideological Split Continues at Supreme Court of Florida

Posted on July 12, 2008
The ideological split among the current justices at the Supreme Court of Florida continued to show in three cases decided on 7/10/2008. In Florida Dept. of Environmental Protection v. Contractpoint Florida Parks, LLC, the court held 4-3 that §11...

OSHA Gets Money to Investigate Underreporting of Workplace Accidents

Posted on July 10, 2008
The Charlotte Observer continued its coverage of the underreporting of workplace injuries on 7/3/2008 with this story. According to the report, the U.S. Senate has appropriated additional money to fund a recordkeeping enforcement unit within OSHA...

Supreme Court of Florida Quashes Fourth DCA's Decision in Bar Fight Case

Posted on July 10, 2008
The bar patron who was convicted of battery and other offenses in connection with a brawl at the Stuart Ale House and whose conviction was affirmed by the Fourth District Court of Appeal will get another chance before that court. As I discussed here, during the course of Deren's criminal prosecution the State came into possession of a letter from Hartford, Stuart Ale House's workers' compensation insurer, documenting that it had paid over $20,000 to and on behalf of its bouncer who was injured in the fracas...

Are On-The-Job Injuries Being Underreported?

Posted on June 30, 2008
The U.S. House of Representatives Committee on Education and Labor is investigating that question. And in a majority staff report entitled Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses, the committee answered the question in the affirmative...

Attorney Seeks Supreme Court Review of WC Settlement

Posted on June 30, 2008
Speaking of settlements, I've been watching the case of Manzini & Associates, P.A. v. Broward Sheriff''s Office, which I discussed here. That's the case where the claimant, Wimberly, was simultaneously pursuing a workers' compensation claim and a discrimination claim against her employer, the Broward Sheriff's Office ("BSO"), but with a different attorney for each claim...

No Enforceable Settlement Where Attorney Had No Authority to Settle

Posted on June 30, 2008
Munroe v. U.S. Food Service, decided on 6/27/2008, illustrates the risks inherent in "settling" a case at mediation when one party's attorney doesn't have authority to do so. The parties in Munroe went to a mediation conference where they conditionally agreed to settle for $30,000...

ADA Amendments Pass in House

Posted on June 26, 2008
The ADA Amendments Act of 2008 which I wrote about two days ago passed the U.S. House of Representatives on 6/25/2008 by a vote of 402-17, with 15 members not voting. The Senate will now take up the legislation.

Governor Crist Declines to Reappoint JCC Dane

Posted on June 26, 2008
Governor Crist has notified JCC William H. Dane of Jacksonville that he will not be reappointed to a second term. Here's the story from today's edition of The Florida Times-Union. Judge Dane will remain on the bench until the governor appoints a successor, a process which normally takes about 90 days.

When Are Misstatements "Knowingly" False?

Posted on June 24, 2008
Bologna v. Schlanger, though not a workers' compensation case, is an interesting recent decision from the Fifth District Court of Appeal on the issue of "fraud" which could have some application in the workers' compensation setting...

Big Changes Afoot for Americans with Disabilities Act

Posted on June 24, 2008
One question I get from clients fairly often is whether an employer is required to continue offering employment to an injured worker following his on-the-job accident. As far as the Florida Workers' Compensation Law is concerned, the answer is no...

"Preponderance of the Evidence" Instead of "Competent Substantial Evidence" Standard Applies in Determining Estoppel

Posted on June 18, 2008
Branham v. TMG Staffing, decided on 6/18/2008, is another case involving whether the employer is estopped from asserting the statute of limitations as a defense to a claim where it allegedly failed to mail to the claimant the informational brochure mandated by §440...

Employee's "Exposure" Claim Deficient Where No Evidence of Specific Chemical Involved or Level of Exposure

Posted on June 18, 2008
In 2003, the legislature redefined "accident" to make it more difficult to prove that workplace exposures to allegedly harmful substances are compensable under the Florida Workers' Compensation Law. Specifically, §440.02(1) now provides that "[a]n injury or disease caused by exposure to a toxic substance...

Functions Transferred to Department of Financial Services

Posted on June 17, 2008
HB 5045 has now been signed by Governor Crist and takes effect on July 1, 2008. See Ch. 2008-133, Laws of Fla. The measure transfers various duties such as resolving overutilizaion disputes and certifying expert medical advisors from the Agency for Health Care Administration to the Department of Financial Services.

Liability for Workplace Bullies?

Posted on June 12, 2008
The 2008 Florida Legislature enacted Ch. 2008-123, the "Jeffrey Johnston Stand Up for All Students Act" which directs all school boards in Florida to develop and adopt policies to prohibit "bullying or harassment" of students or employees...

Employer's "Constructive Knowledge" of Accident Insufficient for "Actual Knowledge"

Posted on June 06, 2008
Section 440.185(1) requires an employee to notify his employer of an on-the-job accident within 30 days of its occurrence. The employee's failure to give timely notice will bar a subsequent petition for benefits unless he can establish that one the statute's four subsections applies...

New Mortality Tables for MSAs

Posted on June 06, 2008
Mortality tables genereally break down life expectancies by race and sex. In this 5/20/2008 memo, however, the Center for Medicare Services announces that for Medicare Set-Aside Arrangements it will accept only estimates from Table 1 of the Center for Disease Control's mortality tables, that is, for the population as a whole without regard to race and sex...

Two New Tests for Malingering Introduced

Posted on June 06, 2008
The holy grail for workers' compensation carriers is a test that can separate the malingerers from those that are truly injured. Now there are two controversial tests that purport to be able to do just that. One is the MMPI "fake bad" scale developed by Dr...

Increased WC Medical Costs Coming?

Posted on June 02, 2008
Medical costs for Florida workers' compensation claims are about to go up by about 20% if the Division of Workers' Compensation adopts a recommendation made by a consulting firm which it retained. That's what Joe Paduda says in this post on his "Managed Care Matters" blog...

Three Sentenced in Fraudulent Workers' Compensation Scheme

Posted on May 30, 2008
I wrote here about three businessmen who were recently convicted in federal court of conspiracy, mail fraud, wire fraud, and money laundering in connection with various fraudulent workers' compensation schemes. They've now been sentenced to a combined 55 years in prison along with forfeiture of $75M in assets...

Sheriff Reinstates Deputy Pending Completion of Fraud Investigation

Posted on May 29, 2008
As I discussed here, an employer's or carrier's allegation that an employee has committed workers' compensation fraud by violating one or more provisions of §440.105 can sometimes have collateral consequences. For example, in Sickles v...

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