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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

Two Accidents = 208 Weeks of Temporary Disability Entitlement

Posted on December 17, 2008
Section 440.15(2)(a) limits temporary compensation benefits to a maximum of 104 weeks. So what if there are two on-the-job accidents which concurrently produce periods of temporary disability? Is the claimant limited to a maximum of 104 weeks in compensation for both accidents? No, said the First District Court of Appeal in Auman v...

Maximum Compensation Rate for 2009 Announced

Posted on December 12, 2008
The Florida Division of Workers' Compensation has announced that the maximum compensation rate for accidents occurring in 2009 is $765.00 per week. This represents an increase of 2.55% over last year's maximum comp rate.

Fourth DCA: Horizontal Immunity Provision Does Not Deny Access to Courts

Posted on December 04, 2008
I wrote here about Aikens v. Miller Electric, Case No. 1D07-6314, a case where the First DCA affirmed without opinion a Duval County circuit court's rejection of the plaintiff's challenge to the constitutionality of a 2003 amendment to §440...

More Murray Coverage

Posted on December 01, 2008
The 11/15/2008 edition of the Florida Bar News has this story on Murray v. Mariner Health. And the Daytona Beach News-Journal has still more coverage in its 11/28/2008 edition.

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Voluntary Retirement Does Not Bar Claim For Permanent Total Disability Benefits

Posted on December 01, 2008
Facts: Claimant injures knee in 1995. Retires voluntarily in 1998. Never works or even looks for work since then. Total knee replacement in Augst 2005. MMI on 11/14/2005. Claimant files claim for permanent total disability ("PTD") benefits from 11/14/2005 to present and continuing...

Third DCA: OSHA Violations Relevant to Show Employer's Actions Were "Substantially Certain" to Result in Injury or Death

Posted on November 26, 2008
Before the 2003 amendments to §440.11, the Florida Supreme Court held that an employer loses its immunity from tort liability if its conduct was "substantially certain" to result in injury or death to its employee. See Turner v...

Paramedics Lose Claim for Overtime Pay

Posted on November 26, 2008
A paramedic is not a "firefighter" for purposes of §112.18(1), Fla. Stat., the "Heart-Lung" bill. So said the First District Court of Appeal over twenty years ago in Lansford v. Broward Co. Bd. of Co...

Palm Beach Post Gives Thumbs Up to Murray

Posted on November 24, 2008
The Palm Beach Post has this editorial from its 11/24/2008 edition applauding Murray v. Mariner Health.

Murray Results in Proposed 8.9% Rate Increase

Posted on November 15, 2008
NCCI has now projected that the Florida Supreme Court's decision in Murray v. Mariner Health will result in an average rate increase of 8.9% for Florida employers. Actually, they project an overall increase of 18.6%, but the full effect of the decision won't be felt for a couple of years...

NCCI to Propose New Rates Following Murray

Posted on November 13, 2008
According to this story from the Tampa Bay Business Journal, NCCI is in the process of proposing higher workers' compensation insurance rates for Florida employers in light of the Florida Supreme Court's ruling in Murray v. Mariner Health. Although the 18...

NCCI Projects Projects Proposed Medical Reimbursement Schedule Would Have Little Premium Impact

Posted on November 13, 2008
I wrote here about the Division of Workers' Compensation's proposal to amend Fla. Admin. Code R. 69L-7.501 regarding the reimbursement of hospital outpatient services. NCCI has now issued a report in which it projects that the effect of the proposal would be "premium neutral...

NCCI Projects Proposed Medical Reimbursement Schedule Would Have Little Premium Impact

St. Pete Times Applauds Murray Decision

Posted on November 09, 2008
The 11/9/2008 edition of the St. Pete Times contains this editorial about the supreme court's recent decision in Murray v. Mariner Health. While generally lauding the decision as "a sensible ruling," the editor encourages the legislature to revisit the issue of attorney's fees in the upcoming legislative session...

Department of Financial Services Employee Arrested for Alleged Employer Shakedown

Posted on November 07, 2008
Who will watch the watchmen? That question crossed my mind when I read this story from the 11/6/2008 edition of the Miami Herald. According to the story, Arturo Vega, an investigator with the Florida Department of Financial Services, was arrested for trying to shake down a Miami employer which had failed to obtain workers' compensation insurance coverage for its employees...

Montana Woman Guilty of Mail and Wire Fraud in Fraudulent WC Scheme

Posted on November 02, 2008
Section 440.105(4)(b), Fla. Stat., makes it unlawful for any person knowingly to make any false, incomplete, or misleading statement in support or denial of any benefit under the Florida Workers' Compensation Law. And as a recent case from Montana illustrates, if the U...

Retiree Entitled to Benefits for Disability Caused by "Mental or Nervous Injuries"

Posted on October 31, 2008
Participants in the Florida Retirement System (most state, county, and municipal employees) are entitled to a disability retirement benefit known as "in-line-of-duty" disability benefits if, because of a disability suffered in the line of duty, they are "prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee...

Insurance Commissioner Announces Another Rate Decrease, But. . .

Posted on October 30, 2008
Florida Insurance Commissioner Kevin McCarty has announced yet another decrease in workers' compensation rates for Florida employers in 2009. The average rate will decrease by 18.6%, bringing the average cumulative decreases in rates to 60...

Another Ruling on Florida Minimum Wage for Non-Professional Attendant Care

Posted on October 29, 2008
JCC Castiello in Miami has ruled once again that notwithstanding the express language of §440.13(2)(b)1, Fla. Stat., non-professional attendant care should be compensated using the Florida minimum wage, not the federal minimum wage. See Devito v...

Sixth Circuit Court of Appeals: RICO Claims Against Employer, Servicing Agent, and Treating Physician May Proceed

Posted on October 28, 2008
I wrote here about Brown, et al. v. Cassens Transport, Inc., a decision from the Sixth Circuit Court of Appeals which was originally issued on 7/10/2007. Brown and his co-plaintiffs had brought a claim against Cassens Transport, Inc...

Verdict Against Disability Insurer for Requiring Recipients to Apply for Social Security Disability

Posted on October 28, 2008
Section 440.15(1)(f)2.b, Fla. Stat., provides in part that an employer/carrier is not required to make any payment of permanent total disability benefits to an injured worker "if the employee refuses to apply for or cooperate with the employer or carrier in applying for social security disability benefits...

More Reaction to Murray

Posted on October 27, 2008
Here's Insurance Commissioner Kevin McCarty's 10/24/2008 press release on Murray v. Mariner Health. And here's what Associated Industries of Florida has to say.

More on Emma Murray

Posted on October 24, 2008
Yesterday's decision in Murray v. Mariner Health has generated a fair amount of press coverage and reaction from various industry groups. You can read coverage from the St. Pete Times here, from the Palm Beach Post here, and from the Insurance Journal here...

Florida Supreme Court Invalidates 2003 Amendment to Attorney's Fee Statute

Posted on October 23, 2008
In what is surely the most widely followed workers' compensation case in several years, the Florida Supreme Court has invalidated the 2003 amendment to §440.34. The amendment purported to limit the attorney's fees which could be paid to prevailing claimants to a strict percentage of the benefits secured through the attorney's efforts...

Carrier Waived Statute of Limitations Defense by Failure to Appear at 1997 Hearing

Posted on October 23, 2008
Batista v. Publix Supermarkets, Inc., decided on 10/22/2008, involved a statute of limitations question. Under the pre-1994 version of the statute, a workers' compensation carrier waives any statute of limitations defense to which it might otherwise be entitled if it fails to assert that defense "at the first hearing of such claim in which all parties in interest are given reasonable notice and opportunity to be heard...

Application of "Competent Substantial Evidence" Standard Harmless Error

Posted on October 23, 2008
In Branham v. TMG Staffing Services, a case which I wrote about here, the First DCA reversed an order in which the JCC had found that there was "no competent substantial evidence" that the claimant had ever received from the carrier the informational brochure required by §440...

E/C Not Entitled to Lien on Claimant's Legal Malpractice Claim

Posted on October 23, 2008
An employee in Florida retains his common law right to sue a third party tortfeasor for injuries sustained in an accident even though the employee receives workers' compensation benefits from his employer for those same injuries. Section 440...

Employer/Landowner Not Subject to Employee's Premises Liability Claim

Posted on October 23, 2008
Can an employee sue his employer in tort, and thus avoid the "exclusive remedy" provision of §440.11, Fla. Stat., where the employer is also a landowner and the suit is predicated upon the employer/landowner's failure to keep the premises in a reasonably safe condition? No, said the Third District Court of Appeal in Elizabeth Arden, Inc...

"Essential Hypertension" Not Covered by "Heart-Lung" Bill; No Compensability Where No Disability

Posted on October 23, 2008
In Bivens v. City of Lakeland, decided on 10/2/2008, the First DCA addressed two issues concerning the proper construction of §112.18(1) and decided both of them in favor of the employer and against the firefighter. First, the court said that a firefighter's essential hypertension — high blood pressure with no known cause — is not a condition to which the presumption of compensability afforded by the statute was intended to apply...

Independent Medical Examiner Can Be an Authorized Treating Physician

Posted on October 23, 2008
The JCC did not err in ordering the E/C to provide continuing medical care to the claimant through a physician which the claimant had previously designated as his "independent medical examiner." That was the First DCA's holding in Protocol Communications, Inc...

No Interest Awardable on Claimant's Costs

Posted on October 23, 2008
Although the JCC has the authority to award costs against the E/C when the claimant prevails in a workers' compensation proceeding, he has no authority to award interest on those costs. So said the First DCA in Torres v. Costco Wholesale Corp...

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