TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2022
1. Rita Noa v. City of Aventura and Florida League of Cities, DCA#: 21-0549; Decision date: January 26, 2022
The claimant argued that an annual merit bonus should be included in her average weekly wage. The First District Court of Appeal agreed and reversed the lower court opinion denying inclusion. The court held that the claimant’s merit bonus was analogous to profits or commissions at issue in prior cases and indicated it should be treated in a like manner. They held that the claimant’s average weekly wage should include a pro rata share of her annual performance bonus.
2. Silberberg v. Palm Beach Cty. Sch. Bd., (47 Fla. L. Weekly D461); February 2022
A companion opinion to the Soya case below, the First District Court of Appeal attempted to clarify compensability in trip and fall cases following the 2019 Valcourt-Williams decision, which they described as “a narrow, trip and fall/comfort break accident case.” The court noted in Silberberg that compensability always turns on whether the employment led to the risk of the injury. If an accident occurs and does not involve a comfort break, only the presence of an idiopathic condition would trigger the “increased hazard” test.
3. Soya v. Health First, Inc., (47 Fla. L. Weekly D 489); February 2022
In this compassion case to Silberberg, the court clarified that in cases where the claimant is injured while engaged in work activities and there are no pre-existing conditions, or competing causes of an injury, then work is the major contributing cause of the injury. Under the premises rule, injuries at the workplace are compensable if the injury occurred while performing activities, incidental to their job, such as going into work, or leaving work.
4. Kelly Air Systems, LLC, Amtrust North America and Technology Ins. Co. v. Dorinda Kohlun, as claimant for Aaron Kohlun, Injured Employee, DCA# 21-0976; Decision date: March 16, 2022
This case involved the going and coming rule. The First District Court of Appeal felt that this case presented an opportunity to analyze the application of the statutory language as prior decisions did not offer substantive guidance on the definition or interpretation of “exclusive personal use.” An employee is not in travel status when he is traveling to or from work, which means that an injury suffered while traveling to and from work, even where the employee regularly works in a travel status, are not compensable. The claimant in this case was traveling in an employer-provided vehicle available for his exclusive personal use for travel to and from work, and he was not compensated for his travel. Therefore, the injury was not compensable.
5. Joseph Guerrera v. Becton Dickinson & Co. and Sedgwick CMS, DCA#: 21-1788; Decision date: May 4, 2022
The First District Court of Appeal overruled the lower court judge and held that the average weekly wage can be increased even if the resulting compensation rate remains at the maximum. They also found that fee entitlement was still owed even though the increase in the average weekly wage was less than what the claimant had requested. The law does not require an exact match between the claim and the award. They disagreed with the judge who ruled that “no actual real benefit was secured.”
6. LFI Ft. Pierce and ESIS WC Claims v. Dewayne Holmes, Blue Goose Growers LLC/FFVA Mutual Insurance Company, DCA#: No. 1D18-5243; Decision date: May 6, 2022
The claimant chose to ride home with a co-worker, who fainted at the wheel, causing a serious motor vehicle accident. Both employees were leased employees. The client company asserted immunity and the special hazard exception to the going and coming rule in a civil action. The leasing company was dismissed from that claim. In the worker’s compensation claim, the leasing company argued there was no exception and that the claim was barred by the going and coming rule. The Judge of Compensation Claims ruled that the leasing company was estopped from asserting their arguments because the client company had argued to the contrary in the circuit court matter. The judge also said that the leasing company benefited from the client company’s argument by being dismissed and held that two employers shared a special relationship. The judge further found that the going and coming rule did not apply because the co-worker’s fainting was a “special hazard.” The judge also held that the fainting experienced by the co-worker arose directly out of the employment. The leasing company challenged all of the judge’s rationales and holdings, and the First District Court of Appeal found merit in all.
The appellate court held that neither estoppel, nor the special hazard doctrine, applied because the claimant did not establish the required elements. Further, estoppel did not apply because the two employers have adverse interests in a workers’ compensation setting. Further, an injury might be compensable when the employer sets its cause in motion, within the course and scope of employment, of the injured worker. That may apply to the co-worker who fainted, but it does not extend to the claimant because it was not foreseeable. The claimant’s decision to ride with a co-worker does not result in finding that the accident arose out of the course and scope of his employment.
7. Sophia Sandifort v. Akers Custom Homes, Inc. and Amerisure Insurance, DCA#: 20-1892; Decision date: July 13, 2022
This case involved a minor who died on his first day of his very first job. The mother sought death benefits. The employer accepted compensability of the workplace death and paid medical and funeral costs but denied death benefits. The employer asserted that the mother and her other children were not dependent on her son. The mother had been supporting herself and her children with SSI benefits her deceased son received because of a learning disability. The First District Court of Appeal held that SSI benefits did not constitute dependency for the purpose of death benefits.
8. Kelly Girardin v. AN Fort Myers Imports, LLC d/b/a AutoNation Toyota Fort Myers/Gallagher Bassett, No. 1D21-3405; Decision date: August 10, 2022
This case involved yet another issue of attendant care where a judge and carrier attempted to adhere to the strict language of the statute. The First District Court of Appeal held that the statute requires a written prescription with certain information, but said that same does not relieve an employer/carrier of its obligation to “monitor a claimant’s injuries and provide needed benefits“ or excuse any “attempt to hide behind a wall of Will for willful ignorance.“
9. Ismael Tiburcio v. Hillsborough County Sheriff’s Office/Commercial Risk Management, No. 1D21-1330; Decision date: August 17, 2022
This case involved the heart/lung presumption. The employer/carrier argued that the officer departed in a material fashion from the prescribed course of treatment of his personal physician. Because the claimant was seeking compensability for heart disease and his alleged noncompliance with his personal physician’s recommendations were for conditions other than heart disease, the First District Court of Appeal held that the judge erred by applying the reverse presumption provision and the case was remanded and reversed.
10. Eddy Junior Bonhomme v. Staff Team Hotels, Corp. and Frank Winston Crum Insurance, Inc., No. 1D21-881; Decision date: October 12, 2022
This case involved a claimant working as a laundry attendant at a hotel and was very factually intensive. The claimant testified about a very specific incident that occurred on May 22, 2019. He did not report the injury and treated at the emergency room on June 3, June 9, and June 25. When he returned for treatment on July 17, that was the first mention of any neck or back pain. He then filed a claim for workers’ compensation benefits. The Judge of Compensation Claims held that the claimant did not know about his injury until July 17, when the diagnosis was first mentioned in the medical records. The First District Court of Appeal disagreed and held the diagnosis from the emergency room does not necessarily start the clock and pointed out that the claimant was very clear that he knew at the moment in May that his pain began and never went away.
What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 2022 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.