Articles Posted in Workers’ Compensation

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).

Continue Reading ›

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.

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.

Continue Reading ›

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.

Continue Reading ›

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. The claimant is a former emergency medical technician (EMT) that has post-traumatic stress disorder (PTSD), which the employer does not dispute. Instead, following a judgment in favor of the employer by the Judge of Compensation Claims (JCC), the employee appealed based on a differing interpretation of Florida Statute 112.1815, which refers to specific treatment in awarding benefits for first responders. The court of appeals disagreed with the JCC, ruling in favor of the claimant.

As an EMT, the employer/claimant began working for Polk County Fire Rescue in August 2015. Over the course of her employment, she witnessed multiple horrific incidents in the course of carrying out her official duties. Many of these incidents included deaths or serious injuries to women and children. In 2016, she responded to a domestic violence incident where a woman was badly beaten by her boyfriend and subsequently passed away after arriving at a hospital. Over the course of 2017, she responded to multiple fatal incidents involving very young children, one as young as three months old. Again in 2018, she saw multiple horrific and fatal incidents involving young children, including a child as young as two-years-old. By 2016, the claimant began experiencing nightmares and flashbacks, the first potential signs of PTSD. She sought assistance from her critical incidence stress management team before seeking help from a therapist beginning in early 2017. By 2018, she took a leave of absence under the Family and Medical Leave Act, as she felt that she could no longer do her job due to the trauma. Following the leave, her condition did not improve, and she never returned to work.

While filing for benefits, the JCC denied the employee’s claim for two reasons, stating (1) that as she did not have an accident on the date of her claim, she was not eligible for benefits under section 112.1815, and (2) that her substantive rights for claims were fixed as of the last “qualifying event” she experienced on the job. The appeals court opinion addresses both parts of the JCC argument, disagreeing with the analysis. On the first issue, the appeals court found that due to the nature of the claimant’s disability, the date or dates that she suffered exposure to the disease was not relevant to determine the date of the accidents in the context of this case. On the second issue, the appeals court ruled that the JCC misinterpreted the issue of timing, stating that there was an imputed contractual entitlement to compensation for financial loss as a result of her occupational disease regardless of the date in this case.

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. The claimant has hypertension which was previously adjudicated as compensable. Following that adjudication, he filed a petition for benefits seeking payments of impairment benefits for hypertension. The Judge of Compensation Claims (JCC) issued an order granting the claimant’s claims for impairment benefits, attorney’s fees, and costs. The employer appealed the JCC decision.

The claimant’s hypertension was assigned a 10% permanent impairment rating by his authorized treating physician. The claimant’s independent medical examiner assigned a 50% permanent impairment rating. And the employer’s independent medical examiner assigned a 0% permanent impairment rating based on the claimant’s hypertension. Due to the conflicting medical evidence provided, the JCC appointed an expert medical advisor. The employer objected to the use of the expert medical advisor, asserting that no conflict in medical evidence existed. The JCC disagreed, reasoning that even if they accepted the employer’s argument that a conflict existed between the permanent impairment ratings of the claimant’s and the employer’s independent medical examiners. The expert medical advisor concluded that the claimant reached a 42% permanent impairment rating. The employer then appealed the decision.

The employer argued that the JCC was not correct to appoint an expert medical advisor in the first place and even if they were, whether the opinion offered by the expert medical advisor was proper. The employer states that the JCC erred in appointing the expert medical advisor as there was no initial disagreement in the opinions of the health care providers. Additionally, they contended that the JCC failed to address the employer’s objections to the expert medical advisor’s opinion. Finally, they object to the manner in which the expert medical advisor performed his assessment.