Workers' Compensation

11th Circuit Says Florida Workers’ Compensation Laws Apply to Temporary Driver Injured in Dump Truck Crash: Wesco Insurance Co. v. Casto

Published on: August 4, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Wesco Insurance Co. v. Casto, a man sued a Florida company in federal court for personal injuries he allegedly suffered in a collision while driving a dump truck that was owned by the company. In response to the lawsuit, the company sought defense and indemnity from its motor vehicle insurer. The insurance company then filed a motion for summary judgment, arguing the injured man was an employee at the time of his injury. According to the insurer, the man’s injury was subject to the Floridaworkers’ compensation statute and excluded from coverage pursuant to the terms of the company’s automobile policy. When a party to a lawsuit files a motion for summary judgment, that party is asking the court to rule in his or her favor because no material facts are in dispute and the party is entitled to judgment as a matter of law. The district court granted the insurer’s motion, and the injured man filed an appeal with the 11th Circuit Court of Appeals.

On appeal, the injured man argued that his harm was not properly subject to the workers’ compensation statute because he was not being compensated for driving the dump truck. Instead, he claimed that he was a volunteer. The man also claimed that the district court committed error when it granted the insurer’s motion for summary judgment because there was a genuine issue of material fact regarding whether he was a volunteer or temporary worker who was not included under the company’s motor vehicle insurance coverage.

First, the 11th Circuit examined whether the injured man was in fact a volunteer at the time of the dump truck crash. The court stated the relevant inquiry regarding whether a person is a volunteer relates to the expectation of payment for services. Since the injured man testified that he expected to be compensated for driving the dump truck on the date of the accident, and no contrary evidence was offered to the district court, the appellate court held that the man was not a volunteer under Florida law.

Florida Appeals Court Affirms Workers’ Compensation Benefits for Sheriff’s Deputy Injured in a Semi-Truck Crash While Commuting: Levy County Sheriff’s Office v. Allen

Published on: July 9, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeal has affirmed an order granting workers’ compensation benefits to a sheriff’s deputy who was hurt on his way to work. In Levy County Sheriff’s Office v. Allen, a deputy employed by the Levy County Sheriff’s Office for more than 41 years was traveling to work in his personal vehicle when he came upon a stalled semi-truck that was partially blocking one lane of a highway during the early morning hours. Due to the purported unsafe condition, the deputy stated he decided to stop and direct traffic around the big rig despite that he was assigned to provide security services at a local courthouse. The man testified that he also intended to call for additional law enforcement officers to assist him in removing the large vehicle from the highway. Unfortunately, the deputy was unable to stop his vehicle before striking the semi-truck. As a result of the unfortunate collision, the deputy apparently sustained significant personal injuries. At the time of the accident, the deputy was wearing his uniform and carrying both his assigned badge and weapon on his person.

Following the injury accident, the Levy County Sheriff’s Office workers’ compensation insurance carrier refused to pay any benefits to the deputy related to his accident injuries. According to the employer-insurer, the man’s harm did not result from his job duties because he was hurt while commuting to work. In addition, the carrier claimed the man’s harm did not arise out of his employment because his primary work assignment was to provide courthouse security services.

At an evidentiary hearing, both the deputy and several co-workers offered testimony stating Levy County Sheriff’s Office policy requires all deputies to address any obvious safety hazards whether or not they are currently on duty. According to a Judge of Compensation Claims, the deputy’s security assignment did not relieve him of his duty to resolve dangerous conditions such as that posed by the tractor-trailer. Also, the judge found that the man’s injury occurred while he was performing one of his primary job duties. Finally, the judge held that the deputy was “acting within the course of his employment” under Section 440.091(1) of the Florida Statutes. Because of this, the judge ordered that the man’s injury accident was compensable. The employer-insurer then appealed the judge’s decision to Florida’s First District Court of Appeal.

Florida Appeals Court Clarifies Notice Requirements in Workers’ Compensation Case: Caceres v. Sedano’s Supermarkets

Published on: June 9, 2014 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeals has overturned a judge’s denial of a repetitive use injury workers’ compensation claim. In Caceres v. Sedano’s Supermarkets, a grocery store employee filed a workers’ compensation claim for repetitive trauma injuries he allegedly sustained while on the job several years earlier. A Judge of Compensation Claims denied the man’s claim without considering the extent of his harm because the judge determined that the man filed his claim too late to recover. The worker then appealed his case to Florida’s First District.

According to the appeals court, Florida law requires that an injured worker inform his or her employer of a workplace injury within 30 days of the date of the injury or the initial manifestation of the harm. The Court of Appeals stated that this statutory period normally begins to run on the date of last exposure in cases of repetitive harm. Next, Florida’s First District found that the Judge of Compensation Claims misinterpreted the statute when he ruled that the supermarket worker filed his claim too late without considering any evidence related to the date, cause, or extent of the worker’s alleged harm. Instead, the judge apparently read Section 440.185(1) of the Florida Workers’ Compensation Statute too narrowly when he summarily denied the man’s request for benefits because more than 30 days had passed since the purported injury had occurred. Since there was insufficient information with which to examine whether the man’s workers’ compensation claim was filed in a timely manner, the appellate court reversed the judge’s order and remanded the case for further consideration.

In Florida, individuals who are hurt at work are generally entitled to collect workers’ compensation benefits. Employees who suffered harm while on the job may be entitled to collect lost wages, temporary and permanent disability benefits, and medical expenses. Certain relatives of someone who was killed in a tragic workplace accident may also be entitled to collect funeral costs and other compensation. In some cases, a person who was hurt at work may be entitled to file a personal injury lawsuit against a third party, such as a defective equipment manufacturer, who was somehow partially responsible for a worker’s injury. Regardless of the type of harm suffered, it is vital for an injured employee to file his or her workers’ compensation claim in a timely manner.

One-time Change of Physician Rule in Florida

Published on: March 10, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, you do not have the right to pick your doctor if you file a workers’ compensation claim. Most of the time the insurance carrier picks the doctor. Florida Statutes Section 440.13(2)(f) gives a worker the opportunity to change a physician once during the course of treatment for a work-related injury.

Once the change is granted and the employer or carrier notifies him or her, the original physician loses authority. The carrier must then authorize an alternative physician not professionally affiliated with the earlier physician within 5 calendar days after receiving the worker’s request. The worker can select the physician if the carrier doesn’t provide the name of the new physician.

Usually attorneys do not recommend that an injured worker change doctors during the early, occupational clinic stage. If you choose to change doctors at that time, you cannot again change doctors at the more important specialist stage. The second physician after your one-time change stays the doctor on the case unless the claimant moves or the initial treating physician no longer takes workers’ compensation cases or withdraws from the case for another reason.

Workers’ Compensation Immunity in Questionable Florida Employment Situation

Published on: February 7, 2014 | by Friedman Rodman Frank & Estrada, P.A.

In a recent case, a woman appealed form summary judgment entered in favor of a general contractor for whom her husband had worked. The case arose when the general contractor was managing a project at a processing plant in Miami. A plumbing company and its supplier was also on the job. A plumbing supply deliveryman delivered a steel pipe there one day in 2008.

At the site, a plumbing employee told him to take the steel pipe upstairs. He took it up to the second level. As he was walking back toward the lift, he stepped on a false ceiling and fell twenty feet to the ground. The deliveryman was left in a persistent vegetative state. His wife was appointed his guardian and sued the construction company and the plumbing company for negligence and loss of consortium.

Before she filed the lawsuit, the wife received workers’ compensation benefits from the workers’ compensation insurer for the plumbing company and the supplier. All defendants asserted workers’ compensation immunity. In Florida, workers’ compensation is the exclusive remedy for employees hurt on the job. This means employers are immune from lawsuit by their employees based in tort.

What is the Role of an Expert Medical Advisor in Florida?

Published on: October 30, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, an Expert Medical Advisor (or “EMA”) is asked by a workers’ compensation judge to resolve certain controversies. A judge must order an EMA if either party requests one. They also must be called when there is a disagreement between two independent medical examiners.

A judge may also choose to call an EMA when doctors disagree about the medical evidence in the case, when doctors disagree about whether further treatment is necessary and when doctors disagree about an employee’s ability to come back to work. The EMA’s opinion is given a legal presumption of correctness. This presumption can be rebutted only by clear and convincing evidence to the contrary of the EMA’s opinion.

In a recent workers’ compensation case, the employer argued that a workers’ compensation judge did not give the EMA’s opinion a presumption of correctness when it awarded a workers’ compensation claimant permanent total disability. In the case, the judge had appointed the EMA to resolve a conflict in medical opinions about the claimant’s restrictions for work.

Important Florida Ruling on Injured Workers With Permanent Disabilities

Published on: October 18, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida there is a 104-week time limit on temporary disability benefits. The problems with the way this limit was applied were first addressed in a 1998 case in which the claimant was almost at the end of the 104-week period, but he hadn’t reached maximum medical improvement.

The appellate court in that case held that an employee who had run out of temporary benefits had to show total disability and that total disability would exist after the date of maximum medical improvement in order to get permanent disability benefits. This was based on the idea that a claimant could not receive permanent total disability benefits if it had not been determined that he had reached his maximum medical improvement.

Certain claimants who were totally disabled when the temporary disability benefits were concluded could not prove that total disability would exist after maximum medical improvement. They would not be eligible for any benefits though they were unable to work.

Exceptions to Workers’ Compensation Immunity in Florida

Published on: October 11, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Under Florida Workers’ Compensation law, employers have worker’s compensation immunity for their employees. An “employee” also means an independent contractor working in the construction industry. It does not, however, include someone who is an owner-operator of a motor vehicle who transports a haul under contract with a “motor carrier.” If an owner-operator of that vehicle is injured in an accident, it can be difficult to sort out legal liability for the injuries.

In a recent case, a single-vehicle dump truck accident hurt a plaintiff at a construction project. The defendant was a general contractor who had entered into a subcontract with a trucking company that offered to haul fill from the project to the dump. The plaintiff was a dump truck driver who had entered into a service contract with the subcontractor. The agreement between them identified the driver as an “independent contractor” and the subcontractor as a “broker.”

The subcontractor paid the plaintiff on a commission basis and the plaintiff was required to maintain his own vehicle, pay for all expenses including gas, and choose his own schedule, as well as the manner of transporting a load. While hauling a load of construction materials, the plaintiff’s dump truck turned over, injuring him. The plaintiff sued the general contractor for negligence and loss of consortium.

Florida Court Finds Workers’ Compensation Immunity in an Amputation Case

Published on: July 3, 2013 | by Friedman Rodman Frank & Estrada, P.A.

In Florida, workers’ compensation is the exclusive remedy an employee has against an employer when he gets hurt in the course and scope of his job, except under very limited circumstances. Sometimes this can seem unfair when an accident is extremely severe. There is, however, an intentional tort exception to the rule favoring workers’ compensation.

In order to meet this exception, a plaintiff employee must demonstrate there is clear and convincing evidence on one of two points. The employee must prove either that the employer actually intended to injure the employee or else that the employer knew based on previous similar accidents or express warnings that there was a danger to the work condition and it was “virtually certain” to lead to injury or death to the employee. Not only that, but the plaintiff must show the employer hid this danger from the employee.

“Virtually certain” is a very tough standard that means that a plaintiff must demonstrate a particular danger will result in an accident every time or almost every time it comes into play. In a recent workers’ compensation immunity case, an employee’s hand was amputated by a piece of machinery he used at his workplace. At work, he made steel lockers. Machines were used to cut and bend the metal parts of the locker.

Florida Appellate Court Allows Lawsuit to Proceed Against Negligent Coworker

Published on: June 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently dealt with the differences between personal injury lawsuits brought against a decedent’s employers versus his coworker who caused his injury/death. In this case, the defendant was a spotter driver who used tractors to move trailers for purposes of loading and unloading merchandise. One morning, he was called to the loading dock and he arrived by tractor. Another worker was next to him in another tractor. The defendant drove to the dock and got out. Meanwhile the other worker also parked in the loading dock area and got out of the tractor.

The defendant assumed the worker was going to talk to another driver, hooked the tractor to a trailer and got back into his tractor. He backed up the trailer and felt a bump. There was no way for the defendant to see what happened behind the trailer and the backup alarm was not working. The defendant later testified he knew the backup alarm wasn’t working. The other worker had walked behind the trailer and had been crushed between the back of the trailer and the warehouse dock pad.

The defendant testified that he had not reported that the backup alarm was not working to the employer’s maintenance group. The employer’s safety protocol would have required the tractor be taken out of service to repair the backup alarm. On routine checks, the maintenance staff had not, apparently, checked the alarm themselves.

The Occupational Safety and Health Administration (OSHA) cited the employer for the inoperative backup alarm. Meanwhile, the decedent’s representative filed a lawsuit against the employer and the driver that caused the death, alleging an intentional tort against the employer and gross negligence against the driver.