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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

Big Changes Ahead for the Supreme Court of Florida

Posted on May 27, 2008
Justice Cantero recently announced that he is resigning from the Supreme Court of Florida effective September 6. Then last week, Justice Bell also announced his resignation effective October 1. Now comes word from this article from the 5/24/2008 edition of the Miami Herald that Justices Anstead and Wells will be forced to leave office early next year due to reaching the mandatory retirement age of 70...

Newly Enacted "Guns at Work" Bill Challenged in Federal Court

Posted on May 23, 2008
This isn't strictly a workers' compensation issue, but is one that has businesses around the state concerned about potential liability, both in workers' compensation and in tort. Ch. 2008-7, Laws of Fla., officially entitled the "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008," but perhaps more popularly known as the "Guns at Work" bill, was passed by both houses of the Florida Legislature and signed by the governor...

E/C Can Compel Claimant's Attorney to Testify In Support of Statute of Limitations Defense

Posted on May 22, 2008
Section 440.185(4), Fla. Stat., requires the workers' compensation carrier, within three days of learning of an on-the-job accident, to send to the injured worker a copy of this informational brochure which explains to him his rights and obligations under the Florida Workers' Compensation Law, including the fact that the statute of limitations may expire on his claim after one year from the last payment of compensation or furnishing of medical care...

Judges of Compensation Claims Split on Proper Rate for Non-Professional Attendant Care

Posted on May 19, 2008
Another judge of compensation claims has weighed in on whether non-professional attendant care must be compensated at the federal minimum wage (currently $5.85/hr.) or at the Florida minimum wage (currently $6.79/hr., effective 1/1/2008). As I wrote here, JCC Castiello and JCC Medina-Shore have concluded that the Florida minimum wage applies to such care notwithstanding the express requirement in §440...

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JCC Lorenzen: No §57.105 Fees in WC Cases

Posted on May 19, 2008
One idea I heard bandied about after the enactment of the 2003 amendment to §440.34 was whether a successful claimant might avoid the fee limitations contained in the amendment by claiming entitlement to fees, in an appropriate case, under §57...

Employer Immune From Tort Liability for Employee's On-The-Job Sexual Assault by Co-Employee

Posted on May 15, 2008
In Doe v. Footstar Corp., the Second DCA affirmed the trial court's judgment on the pleadings in favor of the employer and concluded that the employee's civil action against it was barred by the "exclusive remedy" provision of §440.11. The employee (a minor, who brought the action through her parents) alleged in her complaint that Cooper, a co-employee, had assaulted and sexually battered her in the course of his employment with Footstar and that Footstar had negligently hired, retained, supervised, and trained Cooper...

Second DCA: Employer Not Estopped from Asserting "Exclusive Remedy" Defense

Posted on May 15, 2008
In Tractor Supply Co. v. Kent, which I discussed here, the Fifth DCA held that an employer was not estopped from asserting workers' compensation immunity as a defense to a civil action by its injured employee merely because it contended that the employee's ongoing medical condition is no longer attributable to the on-the-job accident, but to a pre-existing condition...

Eighth Circuit: Employer Must Pay for Time Employee Missed From Work to Attend WC Medical Appointment

Posted on May 12, 2008
Howser v. ABB, Inc., a 3/27/2008 decision from the federal Eighth Circuit Court of Appeals involving the Fair Labor Standards Act ("FLSA"), illustrates again how workers' compensation issues sometimes become intertwined with other employment laws...

First DCA: JCC Not Disqualified from Hearing Claimant's Case

Posted on May 12, 2008
As I discussed here briefly, if a litigant in a workers' compensation proceeding fears that he will not receive a fair hearing at the hands of the JCC assigned to his case, Fla. Admin. Code R. 60Q-6.126 provides that he may file a motion seeking disqualification of the judge under the applicable Florida Rules of Judicial Administration...

JCC's 23-Month Delay in Entering Final Order Affirmed

Posted on May 12, 2008
"Justice delayed is justice denied," goes the old saying. Consistent with that maxim, §440.25(4), Fla. Stat., provides that the JCC "shall" issue a final order within 30 days of a hearing on the merits of a claim...

Standards for Rebutting the "Heart-Lung" Presumption - Part Deux

Posted on May 12, 2008
Just a few days ago, I wrote about Lentini v. City of West Palm Beach, a case where the First DCA reiterated that in order to rebut the presumption of compensability afforded by §112.18(1), the so-called "Heart-Lung" bill, an employer need only present "competent substantial evidence...

Watch Those General Releases When Settling a WC Claim

Posted on May 08, 2008
When settling a workers' compensation claim with an employee, most Florida employers - particularly if they're self-insured - want the employee to settle not only his rights under the Florida Workers' Compensation Law, but any other kind of employment-related claim which the employee may have as well...

"Dual Persona" Doctrine Does Not Permit Third Party's Contribution Claim Against Employer

Posted on May 08, 2008
The "dual persona" doctrine, discussed only sparingly in Florida judicial decisions, is an exception to the "exclusive remedy" provision which bars most tort claims by an employee against his employer. The doctrine permits an employee to pursue a tort claim against his employer where the corporate employer merges with a corporate third-party tortfeasor after the accident which caused the employee's injuries...

Res Judicata Does Not Bar Second Claim for PTD Benefits

Posted on May 07, 2008
Res judicata (literally, "a thing decided") is an equitable doctrine which bars the re-litigation of claims and issues that have already been determined in an earlier judicial proceeding. Does that doctrine bar a claim for permanent total disability benefits where the JCC has previously considered and denied such a claim? Not necessariliy, said the First DCA in Myers v...

Standards for Post-10/1/2003 PTD Claims - Another Decision

Posted on May 07, 2008
I wrote here about Wal-Mart Stores, Inc. v. Thompson, where the First DCA strongly implied that the pre-1994 standards governing the quality of proof needed to support an award of permanent total disability benefits apply to post-10/1/2003 claims...

Costs Awardable Against Non-Prevailing Claimant Even Where JCC Fails to Reserve Jurisdiction

Posted on May 07, 2008
As I discussed here, one of the legislative changes enacted in 2003 concerns the issue of costs in workers' compensation litigation. Formerly, §440.34(3) authorized an award of costs only in favor of a prevailing claimant in a workers' compensation proceeding...

Late-Filed Petition for Writ of Certiorari Dismissed

Posted on May 06, 2008
A pretrial order compelling discovery can be reviewed by way of petition for writ of certiorari without waiting until the conclusion of the trial so long as the petitioner can show: (1) that the order constitutes a departure from the essential requirements of law; (2) that it would cause material harm; and (3) that the harm caused by the order cannot be adequately remedied by way of a post-trial appeal...

First DCA Sets Standards to Rebut "Heart-Lung" Presumption

Posted on May 06, 2008
Section 112.18(1), Fla. Stat., says that if a firefighter, law enforcement officer, or corrections officer contracts tuberculosis, heart disease, or hypertension, there arises a presumption that the disease was contracted in the course of his employment...

Murray v. Mariners Health - Waiting for the Other Shoe to Drop

Posted on May 05, 2008
Of course, the case on everyone's mind since I last posted is one that hasn't yet been decided - Murray v. Mariners Health, the case in which the Supreme Court of Florida is considering the validity of the 2003 amendment to §440.34, Fla...

Legislative Roundup

Posted on May 04, 2008
Sorry for the lack of posting for the last few weeks. I'll try to catch up over the next few days. To begin, let's look at the legislative session which ended on 5/2/2008. What happened? Almost nothing. SB 2548, the bill which contained a number or changes to the law which I summarized here, was never even taken up by committee...

"Special Hazard" Exception to the "Going and Coming" Rule Applies Where Employee Uses "Usual" or "Expected" Route to Work

Posted on March 31, 2008
In order to be compensable under the Florida Workers' Compensation Law, the employee's accident must have been sustained while he was "in the course of" his employment. Under what has become known as the "going and coming rule," the employee is not considered to be "in the course of" his employment when he is injured in an accident sustained while going to work or while coming home from work...

AWW and "Customary Hours" of Employment

Posted on March 31, 2008
Stubbs v. Bob Dale Construction, decided on 3/25/2008, illustrates just how complicated the computation of a claimant's average weekly wage ("AWW") can be. That determination is governed by §440.14(1), Fla. Stat., which has seven subsections, (a) through (g)...

Supreme Court Denies Review in Liberty Mutual v. Steadman

Posted on March 27, 2008
In Liberty Mutual Insurance Company v. Steadman, a case which I originally discussed here, the Second District Court of Appeal held that the allegations of Steadman's complaint, if true, would be sufficient to sustain an award of damages for intentional infliction of emotional distress by Liberty Mutual and its claims adjuster...

Supreme Court Denies Review in Estoppel Case

Posted on March 20, 2008
By a vote of 4-3, the Florida Supreme Court in this 3/20/2008 order has denied review of the Fifth District Court of Appeal's decision in Tractor Supply Company v. Kent, a case from last August which I discussed here and here. The claimant in that case filed a tort claim against his employer after the workers' compensation carrier denied his workers' compensation claim on the grounds that his medical problems all stemmed from a pre-existing condition...

No WC Liability = No WC Immunity

Posted on March 12, 2008
Although we can't tell the facts of the case from the Third DCA's brief opinion in City of Miami v. Gutierrez, decided on 3/12/2008, because of the First DCA cases and the statute cited in the opinion we can surmise that the case involved the estate of an employee suing his employer in tort for injuries sustained while the employee was engaged in some type of "recreational and social activity" connected with his employment...

First DCA: Fake Social Security Number Used to Obtain Employment Not a Bar to WC Benefits

Posted on March 11, 2008
I wrote here about whether an employee who knowingly presents false evidence of his identity to his employer in obtaining employment, thereby violating §440.105(4)(b)9, Fla. Stat., also thereby forfeits his right to workers' compensation benefits if he is injured in a subsequent on-the-job accident...

Harmless Error to Admit Non-IME Medical Opinion; E/C Failed to Request EMA Timely

Posted on March 11, 2008
U.S. Agri-Chemicals Corp. v. Camacho, decided on 3/10/2008, reminds us that only the medical opinions of: (1) an authorized treating physician; (2) an independent medical examiner; or (3) an expert medical advisor are admissible in evidence in a Florida workers' compensation proceeding...

Employer Entitled to Costs Even Though it Did Not Plead Entitlement

Posted on March 11, 2008
One of the many changes enacted by the 2003 legislature was an amendment to §440.34(3), Fla. Stat., which, for the first time, allowed an employer/carrier to recover its litigation costs from an unsuccessful claimant. Must the employer/carrier specifically plead entitlement to costs in the pretrial stipulation in order to recover them? No, said the First DCA in F...

Corrections Officer's Heart Disease Not Covered by the "Heart-Lung" Bill

Posted on March 11, 2008
Back in July, I wrote here about Raul Saldana, a corrections officer employed by the City of Miami, who suffered from hypertension and heart disease. He filed a claim for compensation and medical care under the Florida Workers' Compensation Law, relying upon §112...

Employee Leasing Company Not Liable for Injuries to Employee of its Client

Posted on March 07, 2008
Crum Services v. Lopez, decided on 3/6/2008, illustrates a situation that arises all too often in the context of employee leasing companies. Crum Services is an employee leasing company (also known as a "professional employer organization" or "PEO") who entered into a contract with P&G Roofing to provide leased employees to P&G...

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