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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

Claim for Past Due Medical Bills Was a "Reimbursement Dispute"

Posted on October 23, 2008
Although I failed to discuss it earlier, one of the First DCA's more interesting decisions from 2007 was the case of Avalon Center v. Hardaway. In that case, the court held that pursuant to §440.13(11)(c), Fla...

Claimant Entitled to "One-Time Change of Physician" Even After Treating Physician Discharges Claimant From His Care

Posted on October 23, 2008
Section 440.13(2)(f), Fla. Stat., entitles the claimant to a "one-time-change-of-physician" upon his written request "during the course of treatment" for an on-the-job accident. Does such a written request come "during the course of treatment" when it is made after the initial treating physician has discharged the claimant from his care and opined that "[n]o further treatment is indicated for this patient"? Yes, said the First District Court of Appeal in Providence Property and Casualty v...

School Board Employee Not Guilty of Fraud; Entitled to Job Reinstatement

Posted on October 23, 2008
As I noted here and here, the Escambia County School Board fired its employee, Jackie Fowler, on the grounds that Ms. Fowler had committed workers' compensation fraud, even after an administrative law judge ("ALJ") had concluded that she was not guilty of the offense...

"One Time Change of Physician", "Expert Medical Advisors", and "Major Contributing Cause"

Posted on October 23, 2008
When the claimant's treating physician opines that the claimant's industrial accident is no longer the "major contributing cause" of her ongoing medical problems, is the claimant entitled to a "one-time-change-of-physician" in order to obtain a contrary medical opinion? Yes, said the First DCA in Dawson v...

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JCC May Not Rely Upon Lay Testimony in Deciding "Major Contributing Cause"

Posted on October 23, 2008
One of the changes wrought by the 2003 amendments to the Florida Workers' Compensation Law concerned the employee's burden of proving that his on-the-job accident is the "major contributing cause" of a given medical condition and the need for treatment of that condition...

First DCA: Hypertension Does Not Equal Heart Disease

Posted on October 23, 2008
Florida firefighers, law enforcement officers, and corrections officers who develop heart disease are entitled to a presumption that the disease was caused by their employment if, at the commencement of their employment, they underwent a physical examination which failed to reveal any evidence of such a condition...

Liberty Mutual Sued for Intentional Infliction of Emotional Distress

Posted on September 29, 2008
Over the weekend, the St. Pete Times ran this heartrending story about James Dolan, a 34-year-old Radio Shack employee who was shot in the head by a gun-wielding assailant while on the job in 2004. The attack not only left him totally blind, but suffering from post-traumatic stress syndrome as well...

First DCA Decision May Provide Financial Incentive to Hire Undocumented Workers

Posted on September 26, 2008
All disability payments to an injured worker under the Florida Workers' Compensation Law are based upon the worker's "average weekly wage" at the time of his accident. But what qualifies as "wages" in making the "average weekly wage" calculation? Section 440...

President Bush Signs ADA Amendments Act of 2008

Posted on September 26, 2008
President Bush signed into law the ADA Amendments Act of 2008 (S. 3406) on 9/25/2008. The amendments will go into effect on January 1, 2009. You can read the White House press release here and coverage from the Washington Post here.

Florida Supreme Court: JCCs Have Jurisdiction to Overturn Settlement Agreements

Posted on September 26, 2008
In Sanders v. City of Orlando, decided on 9/25/2006, a case I discussed here, the Florida Supreme Court has held 5-2 that the judges of compensation claims do have jurisdiction to vacate or set aside lump-sum settlement agreements which had previously been entered into pursuant to the terms of §440...

Florida Supreme Court: Courts May Award Attorney's Fees in Excess of Statutory Caps

Posted on September 25, 2008
In what could be a foreshadowing of the court's eventual holding in Murray v. Mariners Health [Fla. S. C. Case No. SC07-244], the Supreme Court of Florida has held 4-3 that a statute which purported to place a cap on fees for attorneys representing death row inmates must be construed in a manner that ensures adequate representation of those inmates...

House Passes ADA Amendments Act of 2008

Posted on September 18, 2008
By voice vote on 9/17/2008, the U.S. House of Representatives passed the ADA Amendments Act of 2008 (S. 3406). The bill now goes to the President, who is expected to sign.

$6M Verdict Against UPS in WC Retaliation Case Set Aside

Posted on September 13, 2008
Section 440.205, Fla. Stat., provides: Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law...

Senate Passes ADA Amendments Act of 2008

Posted on September 13, 2008
The U.S. Senate passed the ADA Amendments Act of 2008 (S. 3406) by unanimous consent on 9/11/2008. The bill now goes to the House for consideration.

Sanction of Dismissal Too Harsh for Violation of Mediation Confidentiality

Posted on September 09, 2008
In Hill v. Greyhound Lines, Inc., decided on 8/29/2008, the claimant had violated §440.25(3), which provides that "[e]ach party to a mediation conference has a privilege during and after the conference to refuse to disclose and to prevent another from disclosing communications made during the conference whether or not the contested issues are successfully resolved...

Res Judicata Does Not Bar Second Claim for PTD Benefits

Posted on September 09, 2008
In Temples v. WDW Hospitality & Recreation Corp., decided on 8/29/2008, the First District reiterated that an unsuccessful claim for permanent total disability ("PTD") benefits does not necessarily bar a subsequent claim for PTD. See also Myers v...

E/C Owes Attorney's Fee Where Claimant Successfully Prosecuted Claim and More Than 30 Days Elapsed After Receipt of Petition

Posted on September 09, 2008
In Franco v. SCI at the Palmer Club at Pestancia, decided on 8/27/2008, the First District reversed the JCC's order which had denied attorney's fees to the claimant's attorney at the expense of the employer/carrier. The court noted that the petition for benefits was accepted when payment was made, not when the forms indicating acceptance of the claimant's permanent total disability status were completed...

First DCA: New Rule for Heart Attacks Caused by Emotional Stress

Posted on September 09, 2008
My very first post on this blog concerned a footnote in Coca-Cola Bottling Co. v. Perdue, decided by the First District on 4/9/2007, in which the court speculated whether the Florida Supreme Court's 45-year-old decision in Victor Wine & Liquor, Inc...

No Action for Defamation Where Attorney's Statements About Claimant's Alleged Fraud Were Pure Opinion

Posted on September 09, 2008
Dreggors v. Wausau Ins. Co., decided on 8/22/2008, is just the latest in a series of court cases arising out of the alleged commision of workers' compensation fraud by the claimant, his wife, and his attorney. Because the facts are so involved, I simply haven't had time to write about the cases before now, but those interested can read two of those decisions here and here...

Burdens of Proof, Standards of Review for Attorney's Fees, Costs

Posted on September 09, 2008
The standard of review employed by the First DCA is often critical to the outcome of the case. In Moore v. Hillsborough Co. School Bd., for example, the court noted that a JCC's decision denying costs and an upward departure from the statutory attorney's fee schedule (in a pre-2003 case) is reviewed for "abuse of discretion...

No Voluntary Limitation of Income Where Claimant Unable to Perform His Post-Accident Job

Posted on September 09, 2008
Although the "voluntary limitation of income" defense to the payment of temporary partial disability ("TPD") benefits was repealed by the legislature in 1994, see Ch. 93-415, §20, p. 2397, Laws of Fla., the courts continue to use the phrase...

Petition Not Barred by Res Judicata Where Based On Newly Discovered Evidence

Posted on September 09, 2008
As I discussed here, "res judicata" is an equitable doctrine that bars the re-litigation of claims and issues that have already been litigated. But the doctrine also bars claims and issues that could have been but were not litigated at an earlier proceeding...

Governor Crist Upset with List of Supreme Court Candidates

Posted on August 15, 2008
The list of applicants to replace Justices Kenneth Bell and Raoul Cantero on the Florida Supreme Court has been narrowed to eight. You can read their names here: According to this report from the 8/15/2008 edition of the St. Petersburg Times, however, Governor Crist is upset that the list does not include the names of any women or African-Americans...

First DCA Adopts New Procedures for WC Appeals

Posted on August 15, 2008
The First DCA is tightening up its procedures for filing briefs and the record on appeal in workers' compensation cases. According to this notice from the court: Requests for extensions of time to file a brief must state specifically the circumstances justifying such an extension...

Claimant's Medical Co-Payments Go to the Employer/Carrier

Posted on August 14, 2008
Section 440.13(14)(c) says that an injured worker must make a $10.00 co-payment for most medical treatment rendered after he reaches maximum medical improvement. So who gets the co-payment? The doctor? The employer/carrier? Under proposed Fla...

E/C Entitled to Costs Where Claimant Files Voluntary Dismissal

Posted on August 05, 2008
Under the 2003 amendment to §440.34, costs are awardable against the "nonprevailing party" in workers' compensation litigation. Is the claimant the "nonprevailing party" when he voluntarily dismisses his petition for benefits short of an order on the merits of the petition? Yes, said the First DCA in Palm Beach County School District v...

Employer Tort Liability for Workplace "Mental or Nervous" Injuries?

Posted on August 02, 2008
I hypothesized here about whether last year’s supreme court decision in Willis v. Gami Golden Glades, LLC, 967 So.2d 846 (Fla. 2007), might have the effect of increasing employer liability for “mental or nervous” injuries sustained as a result of certain workplace incidents...

ADA Amendments: Still More Amendments

Posted on August 02, 2008
On 7/31/2008, Senator Tom Harkin (D-Iowa), joined by Senators Obama, McCain and Clinton, among others, introduced S. 3406, which is again designated the "ADA Amendments Act of 2008." The bill is quite similar to H...

Still No Pre-Judgment Interest on Attorney's Fees in WC Cases

Posted on August 02, 2008
In civil cases where there is a statutory or contractual basis for an award of attorney's fees against the non-prevailing party, the courts also have the authority to award pre-judgment interest on those fees. See Quality Engineered Installation, Inc...

Claimant Fails to Avoid Statute of Limitations With Late-Filed Petition

Posted on August 02, 2008
Under longstanding case law, once a petition for benefits has been filed it remains pending until it is dismissed or otherwise disposed of by the JCC. See Turner v. Keller Kitchen Cabinets, Inc., 247 So.2d 35 (Fla. 1971). Section 440...

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