Articles Posted in Workers’ Compensation

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a benefits dispute between a rental car employee (the Employee) and Normandy Insurance Company (Normandy) on behalf of his employer, Value Car Rental, LLC. The Employee filed a petition for benefits after he was shot seven times at close range by an unidentified shooter while at work for Value Car. The parties stipulated that the shooting occurred in the course and scope of the Employee’s employment with Value Car, so the only issue in dispute was whether the injuries he sustained in the shooting arose out of the work he performed for Value Car. At trial, the Judge of Compensation Claims (JCC), found that the injuries sustained by the Employee arose out of the work he performed for Value Car, and subsequently awarded him benefits. Normandy appealed the decision to the appellate court, which disagreed with the JCC decision, setting the JCC order aside.

The Employee worked as the general manager of the Value Car in the Orlando International Airport Holiday Inn. The business was near the airport and an industrial park. The premises of the car rental business consisted of a kiosk desk inside the hotel atrium and an office in a separate building next to the hotel swimming pool. One night, the Employee was walking from the kiosk desk to the office building with the last rental agreement of the night, he was shot seven times by an unknown assailant. Video footage captured the incident, and showed the assailant shooting the Employee, beginning to walk away, before shooting him several more times. The assailant did not attempt to rob or take anything from the Employee. Despite his injuries, he made it to the hotel lobby, where a hotel guest came to his aid, he stated that “Robert shot me” and said the police should look for a blue Mustang. The Employee petitioned for workers’ compensation benefits, including indemnity and medical benefits. Value Car and its insurance carrier, Normandy, denied that the Employee was entitled to benefits.

Following the decision to award the Employee benefits by the JCC, Normandy appealed. The Normandy appeal argued that the JCC finding was not supported by competent, substantial evidence. The appellate court opinion stated that a two-pronged analysis dictated whether the Employee could be compensated under the Workers’ Compensation Law. The first prong states that there must be “an accidental compensable injury . . . arising out of the work performed in the course and scope of employment.” The second prong states that “for an injury to arise out of and in the course of one’s employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence.

In a recent case, the Third District Court of Appeals in Florida issued an opinion in an appeal involving a personal injury claim between the Appellants, the plaintiff, and the Appellee, Lawson Industries, Inc., (Lawson). The plaintiff sued Lawson after he sustained injuries when he attempted to unload a shipment of heavy-impact windows and doors that were delivered by Lawson’s employee and placed on the plaintiff’s employer’s forklift. The impact doors in the shipment toppled off the forklift and onto the plaintiff when he removed the windows that were leaning against the impact doors. The court granted Lawson’s motion for summary judgment, and the plaintiff appealed.

Lawson is a Miami-Dade impact window and door manufacturer. PMYY Leon Corporation, Inc. (PMYY) is the plaintiff’s employer and a local retailer that ordered impact windows and doors from Lawson. The impact doors and windows had been offloaded onto PMYY’s forklift the day prior to the incident by a Lawson’s delivery truck driver. On the day of the delivery, PMYY’s principal assisted the Lawson’s delivery truck driver in moving the shipment from the truck onto the PMYY forklift. During deposition, the delivery truck driver did not recall strapping the doors onto the forklift rack because that was not his job. The delivery truck driver also did not recall whether the forklift operator strapped the load down, but testified that to do so was PMYY’s usual practice. The delivery truck driver left the PMYY premises after the delivery. PMYY’s principal stated during his deposition that he strapped the shipment to the pallet rack on the forklift. After that he stated that he drove the forklift into the PMYY warehouse for overnight storage.

The plaintiff testified at his deposition that on the morning of the incident, he entered the warehouse and began to unload the forklift shipment himself, and at the time observed that there were no straps in place. The plaintiff later testified that he failed to realize that safety strapping was missing until the doors fell on him. During his deposition, the plaintiff stated that once he unloaded the lighter windows from the front of the heavier impact doors, the doors fell forward, causing him injuries. Shortly thereafter, the plaintiff filed suit against Lawson, asserting one count of negligence, asserting that Lawson improperly loaded the shipment onto PMYY’s forklift, which ultimately led to his injuries.

With the Occupational Safety and Health Act of 1970, Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education, and assistance. OSHA is a federal agency that is part of the larger federal Department of Labor. The administrator for OSHA is the Assistant Secretary of Labor for Occupational Safety and Health. OSHA’s administrator answers to the Secretary of Labor, who is a member of the cabinet of the President of the United States.

Most Frequently Cited OSHA Standards

Certain types of workplace injuries attract more attention than others. OSHA estimates that more stringent training policies could prevent approximately 70% of all forklift accidents in the United States. OSHA also projects that in total, between 35,000 and 62,000 forklift injuries occur each year. However, the ten OSHA standards that are cited the most frequently might surprise you.

The following ten OSHA standards were the most frequently cited standards by Federal OSHA in fiscal year 2022 (October 1, 2021, through September 30, 2022): (1) Fall Protection, construction (29 CFR 1926.501); (2) Hazard Communication, general industry (29 CFR 1910.1200); (3) Ladders, construction (29 CFR 1926.1053); (4) Respiratory Protection, general industry (29 CFR 1910.134); (5) Scaffolding, construction (29 CFR 1926.451); (6) Control of Hazardous Energy (lockout/tagout), general industry (29 CFR 1910.147); (7) Powered Industrial Trucks, general industry (29 CFR 1910.178); (8) Fall Protection Training, construction (29 CFR 1926.503); (9) Eye and Face Protection, construction (29 CFR 1926.102); (10) Machinery and Machine Guarding, general industry (29 CFR 1910.212).

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In a recent case, the First District Court of Appeals for the State of Florida issued an opinion in an appeal involving a claim for compensability of hypertension and heart disease brought under section 112.18, Florida Statutes (2019), commonly known as the “heart-lung statute.” The appellant, a law enforcement officer, filed a claim for compensation under the heart-lung statute and was denied by his employer, Florida Highway Patrol, which is the appellee. The Judge of Compensation Claims (JCC) denied the appellant’s claim, finding that he failed to satisfy “disability,” a prerequisite for compensability of occupational disease under the law. After the denial, the appellant appealed the decision.

The appellant was hired by the Florida Highway Patrol in 2001 after undergoing a pre-employment physical. In 2008, he was diagnosed with hypertension after consulting a doctor for headaches and redness in the face he was experiencing. At that point, the appellant was restricted from working for a few days and prescribed medication. He did not file workers’ compensation paperwork and did not pursue a workers’ compensation claim. Then in early 2019, while visiting a hospital to investigate a vehicle crash, the appellant asked a nurse to check his blood pressure. The nurse informed him that his blood pressure was high, and recommended he consult a doctor.

The next day, the appellant met with his personal doctor and alerted his employer. The employer then scheduled an appointment for him with a cardiologist, Dr. Gupta, for evaluation. At his first appointment with Dr. Gupta, his blood pressure was 160/96, and described by the doctor as “uncontrolled.” Dr. Gupta diagnosed him with hypertension and obesity, changing his medication and recommending an echocardiogram (EKG). At that point, Dr. Gupta did not take him out of work, assign work restrictions, or refer him to the hospital. The appellant returned to Dr. Gupta in February for his EKG and planned to report to work immediately after the appointment. Dr. Gupta changed his medication again, counseled him on obesity and lifestyle changes, and recommended a stress test. He also requested that Friesen remain in the waiting room for ten to fifteen minutes for the medication to take effect and lower his blood pressure. The appellant waited fifteen minutes and his blood pressure improved. Again, no work restrictions were assigned. After continuing to work full time, in mid-February, his employer issued a Notice of Denial, asserting that hypertension or heart disease must be accompanied by disability to be compensable. The appellant then filed a Petition for Benefits, requesting workers’ compensation benefits.

Industrial and equipment accidents are serious and can result in severe injuries or even death. According to the U.S. Bureau of Labor Statistics, from 2011 to 2017, over 600 workers were killed in forklift accidents in the United States and over 7,000 workers experienced nonfatal forklift injuries with days away from work every year. Forklift accidents only account for approximately 1% of all warehouse or factory accidents. Unfortunately, due to the dangerous nature of the equipment, forklift incidents are responsible for 11% of all physical injuries in warehouse or factory accidents.

The Occupational Safety and Health Administration (OSHA) estimates that more stringent training policies could prevent approximately 70% of forklift accidents in the United States. OSHA also projects that in total, between 35,000 and 62,000 forklift injuries occur each year. Concerningly, it is estimated that 36% of forklift-related deaths are pedestrians. Forklifts are so dangerous in part due to how they are deployed and in part due to how they are constructed. Loads are often carried in front of a forklift, blocking the driver’s view, increasing the chances of an accident. Forklifts are often used to raise heavy loads to considerable heights, resulting in dangerous circumstances. Forklifts also turn using rear wheels, increasing the chances of tipping over during tight turns. Additionally, forklifts can weigh up to 9,000 pounds and reach speeds of 18 miles per hour, making any forklift crash a serious collision. Lastly, forklifts only have breaks on their front wheels, making it harder to stop quickly and safely. A recent news article discussed a fatal forklift accident in Daytona Beach.

According to the news report, the accident happened on Monday, February 13, when a forklift operator moving materials from a truck ran over a woman in her 60s. The worker was part of a team working to repair a building that was damaged in Hurricane Ian. The Public Safety Director, Michael Fowler, stated that the worker did not see the pedestrian past the construction materials, causing him to hit her. According to the article, the driver was navigating using the space between two loads and never saw the pedestrian before hitting her. The woman was killed by the impact. The death has been classified as an industrial incident and will be investigated by the Daytona Beach Shores Public Safety and Occupational Safety and Health Administration.

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a benefits dispute between a housekeeper and an employer. The appellee filed a petition for benefits and alleged injury while “house keeping” for the appellant. The appellant moved for a summary final order on the grounds that domestic servants in private homes are expressly excluded from the definition of employment under section 440.02(17)(c)1., Florida Statutes. The Judge of Compensation Claims (JCCs) denied the appellant’s motion, and the appellant appealed.

The appellate decision states that JCCs are “vested only with certain limited quasi-judicial powers relating to the adjudication of claims for compensation and benefits.” Given that, JCCs do not have inherent judicial powers but, instead, only have the power expressly conferred by Chapter 440 in Florida. The appeals court further stated that in order for an individual to be considered an “employee” under the Workers’ Compensation Laws of Florida, chapter 440 states “Employment” is defined as ’“all private employments in which four or more employees are employed by the same employer,”’ but specifically excludes housekeeping services. The statute states, ‘“‘Employment’ does not include service by or as . . . domestic servants in private homes.”’

The appellate opinion further states that in her motion for summary final order, the appellant attached an affidavit stating that she does not operate a business at her private residence, does not employ four or more individuals at her private residence, and does not carry a workers’ compensation insurance policy. Affidavits are allowed to be considered to determine subject matter jurisdiction. Once the appellant filed her motion with her affidavit demonstrating that the OJCC did not have subject jurisdiction, the burden shifted to the appellee to provide an affidavit that did establish subject matter jurisdiction of the JCC. The appellee did not provide an affidavit but instead stated that the appellant’s affidavit was “unauthenticated hearsay” and that “reliance on an affidavit is not a sufficient basis to merit entry of Summary Final Order.”

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a claim for authorization of a physician in a worker compensation case between an employee, the Claimant, and the Employer/Carrier (E/C). The Claimant sued the E/C following the E/C disregarding his request for a one-time change under section 440.13(2)(f). The Judge of Compensation Claims (JCC), denied his claim for authorization of the physician and found that the E/C’s waiver defense was tried by consent.

The Claimant suffered a compensable accident on August 21, 2018, and benefits were subsequently initiated. On June 20, 2019, the Claimant sent a written request to the E/C exercising his right to a one-time change under section 440.13(2)(f), and the E/C failed to respond. On July 2, 2019, the Claimant filed a Petition for Benefits (PFB), asserting his entitlement to the one-time change and requesting enforcement of that right. The E/C filed a response agreeing to the one-time change and naming Dr. Feiertag as the alternative physician twenty-seven days after the Claimant filed the first PFB. The Claimant did not attend the appointment and subsequently voluntarily dismissed the first PFB, later explaining that he was concerned with avoiding litigation and “rocking the boat” with his employer. On July 28, 2020, the Claimant filed a second PFB requesting authorization, payment, and scheduling of an appointment for evaluation and treatment with Dr. Roush, his chosen alternative physician. Three days after the second PFB, the E/C wrote to the Claimant, denying treatment with Dr. Roush, stating that Dr. Feiertag was the authorized one-time change doctor.

At trial, the Claimant argued that the E/C forfeited its right of selection of the one-time change physician when it failed to respond to his initial one-time change request. He further claimed that the second PFB was merely a requested enforcement of his previously accrued right of selection, and he was exercising that by selecting Dr. Roush. The E/C argued that the Claimant voluntarily dismissed the first PFB and waived his right of selection. The JCC concluded that due to the fact that the Claimant did not attend the appointment with Dr. Feiertag that was scheduled by the E/C, he did not acquiesce to his authorization. Additionally, the JCC rejected the E/C’s argument that the Claimant forfeited his right of selection due to the length of time between the written request and the selection of the doctor. Regardless, the JCC denied the Claimant’s request, finding that (1) the Claimant withdrew his request, (2) the second PFB was a new request that the E/C responded to in a timely manner, and (3) the Claimant failed to satisfy his burden of proof that the treatment he was seeking reimbursement for was both “compensable” and “medically necessary.”

In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a benefits dispute between an employer and an employee, with one of the justices concurring in part and dissenting in part. The claimant is an employee of Brevard County Fire and Rescue seeking compensation for treatment for post-traumatic stress disorder (PTSD). The Judge of Compensation Claims (JCC) found that the accident in question did not give rise to any need for treatment due to PTSD or any other compensable mental injury. The claimant argued on appeal that first responder claimants can seek workers’ compensation benefits for PTSD under either § 112.1815(2)(a)3 or paragraph (5), or both.

The majority on the court of appeals affirmed the lower court ruling. While the majority agreed with the claimant’s argument that first responder claimants can seek workers’ compensation benefits for PTSD under either § 112.1815(2)(a)3 or paragraph (5), or both, they found that the availability of these claims did not alter the outcome in this case. However, one member of the appeals panel concurred with the majority in part and dissented in part. The dissent engages with the issue of first impression, in this case, establishing the burden of proof that first responders must meet to establish entitlement to medical benefits only for mental or nervous injuries, such as PTSD, arising from their employment where no physical injury accompanies the injury.

The dissent found that the JCC erred in concluding that the only path for first responders to establish the compensability of a mental or nervous injury such as PTSD was via subsection 112.1815(5), Florida Statutes, which was enacted in 2018 to allow for medical and indemnity benefits for PTSD arising out of employment involving eleven specific events. Instead, the plain language of subsection (5) states that it applies to PTSD claims “notwithstanding sub-subparagraph (2)(a)3.” and related statutes, which is a legislative acknowledgment that both provisions were intended to co-exist. Subsection (5) supplements and complements sub-subparagraph (2)(a)3. For this reason, the claimant was entitled to seek medical benefits (but not indemnity benefits) under sub-subparagraph (2)(a)3. The opinion goes on to state that the JCC erroneously concluded that even if a PTSD claim could be brought under sub-subparagraph (2)(a)3., the claimant failed to present clear and convincing evidence of his claimed injury. However, this standard of proof is specified by statute for only situations where the mental injury arises from a physical injury. In the case here, the default standard is a preponderance of the evidence, meaning the claimant’s claim should be reevaluated on remand under the proper standard.

When employees and officers are injured on the job, sometimes injuries are not readily apparent. It can sometimes take weeks or even months to realize the full impact of emotional and physical injuries. And when injuries like PTSD or emotional trauma arise, it can be difficult to pinpoint the exact date those injuries began.

In a recent case, the court grappled with an incredibly sensitive PTSD issue resulting from a highly publicized school shooting. After the court’s opinion, an officer involved in the aftermath of the shooting will be able to receive PTSD benefits. This case highlights how important workers’ compensation benefits can be in rectifying harms in the workplace.

Facts of the Case

The claimant in the case was a police officer who responded to the shooting at the Marjory Stoneman Douglas High School in Parkland, Florida. In the months afterward, he realized he was experiencing symptoms of post-traumatic stress disorder (PTSD), including anger, nightmares, and anxiety. He was eventually placed on administrative leave in November 2018, with various days of leave for the PTSD symptoms throughout the next year, followed by light duty and then termination in January 2020. He petitioned for benefits after he was terminated, listing dates he was taken out of work as “dates of accident.” Experts testified that his December leave was due to PTSD related to the shooting and that he did not meet all PTSD criteria until December 2018.

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Workers’ compensation laws can be confusing to navigate. Minor details like choice of doctor can change the validity of your claim even if you believed you were in the right. Working with a workers’ compensation attorney can help you navigate these claims and complex laws before you mistakenly make a decision that gets your claim invalidated or overturned.

In a recent case, a Florida court of appeals judge expanded the definition of “specialty” under Florida’s workers’ compensation laws. Under Florida’s law, injured workers can change their physicians once so long as the new physician is qualified in the same specialty as the original physician. Until now, though, courts had varying opinions on how broad “specialty” really was.

Facts of the Case

The claimant in the case sustained a finger injury while using a food press. She received emergency care and then was evaluated by a doctor who was a general surgeon and plastic surgeon with a specialty in hand surgery. The surgeon recommended surgery for repair of the claimant’s nerve and the placement of a pin. The surgeon did the recommended surgery and follow up for pin removal in his capacity as a hand surgeon. After the second surgery, the claimant requested a new physician and the employer’s insurance carrier authorized a doctor who was an orthopedic surgeon with a specialization in hand surgery. The claimant said that because the second doctor was not also a plastic surgeon, the second doctor did not have the required specialty according to the statute. The judge of compensation claims agreed with the claimant and granted the claimant’s request to name her own physician.

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