Workers' Compensation and Civil Litigation Consultation & Defense
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CASE LAW UPDATES FROM FLORIDA
2011-07-07
Within the past couple of months, the 1st District Court of Appeals has made several rulings which expand the Claimant’s right to benefits. The most influential of these are detailed below.
Medical Transportation
Williams v. Onyx Waste of Florida (Opinion filed July 7, 2011)
Case No: 1D10-5938
In an appeal from a West Palm Beach JCC, medical transportation, PTD, and a Motion to Disqualify the JCC were denied. The 1st DCA confirmed the denials of PTD and the Motion to Disqualify, BUT reversed the denial of medical transportation. The JCC had denied medical transportation based upon the claimant’s failure to prove that the transportation was medically necessary as a result of his accident. The 1st DCA, citing Sam’s Club v. Blair, 678 So.2d 902, 904 (Fla. 1st DCA), ruled that “Accordingly, transportation to medical appointments does not, itself, have to be independently medically necessary.
As a result of the foregoing, medical necessity is not a consideration with regard to whether or not a Carrier must provide medical transportation to a claimant.
Retroactive use of EMA
Snider v. Mumford Inc. d/b/a Majik Market #30332 (Opinion filed July 7, 2011) Case No: 1D10-2759
In this appeal from the Lakeland venue JCC, the Judge relied on the opinions of an EMA in this 1982 date of accident. The claimant sought to reverse the JCC’s ruling, arguing that an EMA (Expert Medical Advisor) was not appropriate in this 1982 case in which there became a difference in the opinions of the treating physicians. Although the EMA provision was not added to the statute until 1994, the JCC found that the appointment of an EMA is a procedural change, not a substantive one, and thus could be applied to this 1982 accident. The 1st DCA disagreed, reasoning as they did in Southern Bakeries v. Cooper, 659 S0.2d 339, 341 (Fla. 1st DCA 1995), “the entitlement to a service, and the source of payment therefor, (is) a matter of substance.” Because the EMA was a substantive change, it could not be applied to this accident, and thus the JCC’s reliance on the EMA opinion was reversible error. The 1st DCA remanded the case for the Judge to rule on based on the admissible medical evidence.
In short, and EMA can not be obtained for dates of accident prior to 1994.
Undocumented Workers
HDV Construction v. Aragon (Opinion filed June 28, 2011)
Case No: 1D10-6401
In this PTD appeal from a Jacksonville venue Judge, the JCC found that because the Employer “knew or should have known” of the claimant’s illegal status, they were stopped from using that illegal status to deny workers compensation benefits. Based on the evidence presented at trial, the JCC found that the claimant was permanently and totally disabled. He further ruled however that because the claimant’s illegal status prevents him from working, he was not entitled to any PTD benefits following Final Hearing.
Upon review, the 1st DCA reversed the denial of PTD after Final Hearing. Specifically, the Court reiterates that the Florida Legislature has specifically allowed undocumented workers to receive workers compensation benefits under Section 440.02(15)(a), Florida Statutes (2007). The Court further reasoned that because Employers are to bear the risk injured workers, and because the Employer could have avoided liability by NOT hiring an undocumented worker, it alone should bear the costs of the injured worker’s losses.
In short, prior to the denial of any benefits to an undocumented worker, an honest inquiry as to the Employer’s knowledge of the claimant’s illegal status should be undertaken.
Defining Permanent Total Disability
Blake v. Merck & Company, 43 So.3d 882 (Fla. 1st DCA 2010)
In this appeal from a Jacksonville JCC, the claimant challenged the Judge’s denial of PTD benefits. The JCC denied PTD in this case as the evidence did not show the claimant was totally medically disabled, and the claimant’s failed to make a “reasonable effort” to secure employment. Although there was evidence the claimant had been provided job leads by the Carrier, there was no evidence she had ever been offered a job, or refused one.
Based on the 2003 statute changes with regard to PTD, the court defined 3 ways in which a claimant can prove entitlement to PTD, including; (1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee's residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.
As the JCC did not utilize these factors in denying PTD, the case was remanded for a ruling in keeping with same.
The court seems to indicate that had there been evidence that she had been offered a job or refused employment, the ultimate finding may have been different. Thus, the Carrier’s vocational expert should not only make the claimant aware of available jobs, but should also likely be scheduling actual interviews when possible.