Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

When the medical testimony in a Florida workers' compensation case conflicts, either party (or the JCC on his own motion) may request the appointment of an "expert medical advisor" ("EMA") pursuant to §440.13(9)(c), Fla. Stat., in order to resolve the conflict.  Once appointed, in the absence of "clear and convincing evidence" to the contrary, the EMA's opinions are presumed to be correct and must be accepted by the JCC.

But does an employer have a right to the appointment of an EMA in cases arising under Florida's "Heart-Lung Bill" (§112.18, Fla. Stat.), which states that for firefighters and other law enforcement personnel, medical conditions such as heart disease and tuberculosis are presumed to have been caused by the claimant's employment?  The JCC in this order said no, reasoning that the appointment of an EMA in such cases would be "contrary to the statutory presumption."   In other words, the JCC concluded that placing questions such as the cause of a first responder's heart disease into the hands of an EMA, whose opinions almost always must be accepted, essentially defeats the purpose of the presumption afforded by §112.18 in the first place.  (The JCC later concluded in this order on the merits that the employer had not presented sufficient evidence to rebut the §112.18 presumption that the claimant's heart disease was caused by his employment as a law enforcement officer).

But in Palm Beach County Sheriff's Office v. Bair, decided on 9/21/2007, the First District Court of Appeal brushed aside any such concerns and held that the employer is indeed entitled to the appointment of an EMA in these cases.  Presumably, this holding would also apply in cases arising under the other "presumption" statute, i.e., §112.181(2), Fla. Stat., which states that "hepatitis" and "meningococcal meningitis" contracted by an "emergency rescue or public safety worker" are presumed to have been contracted in the line of duty.  

By the way, fans of appellate litigation might be interested to note that the employer here attempted to obtain review of the JCC's initial order concerning the EMA question by way of a petition for writ of certiorari with the First District Court of Appeal, but the petition was denied. 

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In Florida Power Corp. v. Brown (decided on 11/21/2003), the First District Court of Appeal held that a worker who had been exposed to but was not disabled from exposure to asbestos in the workplace was not entitled to have his employer pay for periodic monitoring of his medical condition.  This was so, said the Court, because the under occupational disease statute (§440.151, Fla. Stat.), a condition becomes compensable only when it becomes disabling. 

But in Huff v. Loral American Beryllium Co., decided on 8/31/2007, the Court reached a different result where the claimant proceeded on a different legal theory.  Huff had been exposed to beryllium dust in the workplace and had developed "beryllium sensitivity" although he had not yet developed chronic beryllium disease.  As an alternative to proceeding under the occupational disease statute, a worker may establish the compensability of a medical condition under the test set out in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980), by proving (1) a prolonged exposure, (2) the cumulative effect of which is injury or aggravation of a pre-existing condition, and (3) that he has been subjected to a hazard greater than that to which the general public is exposed.

The Court concluded that Huff easily satisfied elements (1) and (3) of the Festa test.  It also concluded that Huff had satisfied element (2) by evidence that he had developed a sensitivity to beryllium exposure and that he was no longer able to work around beryllium.  Therefore, the Court reversed the JCC's order which had denied Huff's claim for periodic testing to monitor his condition.

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An "occupational disease" becomes compensable under the Florida Workers' Compensation Act only when the condition becomes "disabling," either totally or partially, not necessarily when the disease is merely diagnosed. What if a firefighter diagnosed with hypertension which is compensable because of the presumption afforded by the "Heart-Lung" bill (§112.18, Fla. Stat.) misses a few days of work because of the condition, but the employer elects to pay his full salary for those days?  Is he still "disabled?"

Yes, said the First DCA in City of Kissimmee v. Simpson, decided on 8/31/2007, in which it affirmed this order from the JCC, and in which it relied upon its earlier decision in City of Mary Esther v. McArtor which held the same.  

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Jorge Diaz, an injured worker, was accused by the employer/carrier of committing workers' compensation fraud by submitting false mileage reimbursement requests.  The Judge of Compensation Claims agreed to "bifurcate" the issues, that is, to conduct a hearing where the issues would be limited solely to whether Diaz was guilty of committing fraud and therefore whether any further workers' compensation benefits would be barred pursuant to §440.09(4), Fla. Stat.  In this order, the JCC concluded that Diaz in fact was not guilty of fraud, and the employer/carrier sought review of that decision by way of a petition for writ of certiorari to the First District Court of Appeal.

In this decision rendered on 8/8/2006, the First DCA denied the petition, but "without prejudice to appellants seeking review after the Judge of Compensation Claims issues a final order on the merits of the claims pending below."  Later, rather than proceeding to a hearing on the merits, the parties settled the pending petition for benefits, as reflected in this stipulation and order from the JCC dated 2/13/2007.  The employer/carrier then sought to raise the denial of its fraud defense on appeal for the second time.

But in Isol Auto Supply v. Diaz, decided on 9/12/2007, the First DCA once again refused to consider the employer/carrier's fraud defense on its merits.  In the stipulation, the parties agreed, among other things, that "all issues are resolved except as to the amount of attorney's fees and costs."  This agreement, said the court, rendered the fraud defense moot.

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"Spoliation of evidence" refers to the destruction of or failure to preserve evidence that is relevant to a lawsuit.  In Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005), the Florida Supreme Court recognized that there are two different kinds of spoliation claims - "first-party" claims where "the defendant who allegedly lost, misplaced or destroyed the evidence was also a tortfeasor in causing the plaintiff's injuries or damages," and "third-party" claims where "a person or entity, though not a party to the underlying action causing the plaintiff's injuries or damages, lost misplaced, or destroyed evidence critical to that action."  In Martino, the supreme court held that Florida does not recognize an independent cause of action for "first party" spoliation.  Rather, the plaintiff in such cases is entitled to a presumption that the defendant's conduct was negligent.

Third-party spoliation claims can arise in the workers' compensation context  because in Florida an injured worker retains his right to pursue an action against  a "third-party" tortfeasor who may have been responsible for his on-the-job accident. (In this instance, "third party" refers to parties other than the employer and the claimant's co-employees, who in most instances are immune from tort liability).  Under §440.39(7), Fla. Stat., the employer has a "duty to cooperate" with the employee in pursuing any such claim.  Thus, questions can arise whether the employer, by its actions or inactions, may have impeded the claimant in pursuing his third-party liability claim.  That's what happened in Perez v. La Dove, Inc., decided by the Third District Court of Appeal on 9/12/2007.

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Here's an interesting article from yesterday's edition of the Palm Beach Post.  The article discusses SB 1440 and HB 301 which were introduced during the 2007 session of the Florida Legislature and which would have broadened the scope of the so-called "Heart-Lung" bill to include cancer among those conditions which are presumptively caused by a firefighter's or paramedic's employment.  And here's a related story about a 34-year-old firefighter suffering from leukemia whose $1.6 million in medical bills and disability would be covered under bills like these.  Both articles discuss the financial bind that "presumption" statutes like §112.18 and the new §112.1815 are beginning to place upon municipal and county budgets.

Although both bills died in committee, the Palm Beach County legislative delegation has promised to re-introduce this legislation in 2008.

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An adjudication that an injured worker has violated §440.105(4)(b), Fla. Stat., the so-called "fraud" provision of the Florida Workers' Compensation Act, will result in the worker's loss of any right to claim workers' compensation benefits resulting from his otherwise compensable accident.  See §440.09(4), Fla. Stat.

A "fraud" charge can have other consequences, too.  Violation of §440.105 is actually a felony, so of course there can be criminal liability for the claimant, not just a loss of his workers' compensation benefits.  Or, as I wrote about here, a false charge of fraud can lead to the filing of a civil lawsuit by the injured worker against the person or persons bringing the charges.

But what if the employer believes that the injured worker has committed workers' compensation fraud and uses that as a basis not for terminating the claimant's workers' compensation benefits, but for terminating his employment?  That's what happened in Escambia County School Board v. Fowler, DOAH Case No. 06-4028, decided on 6/8/2007.

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