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

In order to be compensable under the Florida Workers' Compensation Law, the employee's accident must have been sustained while he was "in the course of" his employment.  Under what has become known as the "going and coming rule," the employee is not considered to be "in the course of" his employment when he is injured in an accident sustained while going to work or while coming home from work.  But there are exceptions to the "going and coming" rule, one of which is the "special hazard" exception, that is, an accident will be compensable even if it is sustained while "going to" or "coming from" work if it is caused by a "special hazard" on a "normal and customary route" used by the employee as a means of entry to and exit from the workplace.

In Kramer v. Palm Beach County, decided on 3/31/2008, the claimant was a bridge tender who habitually parked his car in the morning at a nearby shopping center and walked the remainder of the way to work.  He was injured when he tripped over a pile of debris while walking from his car to the jobsite.  The JCC concluded that the accident was not compensable because of the "going and coming" rule, but the First DCA disagreed.  The Court held that the "special hazard" rule applies if the injury occurs as the result of a "special hazard" encountered on a route that is either the "usual" or "expected"  route.  While the JCC's order demonstrated that Kramer did not use the "expected" route (the employer had provided alternative parking facilities instead of the shopping center parking lot), the order was silent on whether the route he took was the "usual" route.  There was evidence that many of Kramer's fellow employees had continued to park in the shopping center parking lot even after the employer provided the alternative parking facilities.  The Court remanded that case to the JCC for specific findings on whether the route Kramer took was the "usual" route to the jobsite.

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Stubbs v. Bob Dale Construction, decided on 3/25/2008, illustrates just how complicated the computation of a claimant's average weekly wage ("AWW") can be.  That determination is governed by §440.14(1), Fla. Stat., which has seven subsections, (a) through (g).  Under subsection (a), if the injured worker has worked “substantially the whole of 13 weeks immediately preceding the accident,” then the AWW is 1/13^th of the total wages earned during that period.  The term “during substantially the whole of 13 weeks” means “not less than 75 percent of the total customary hours of employment” within that period. But what does the term “customary hours” mean?  That’s what was at issue in Stubbs.

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In Liberty Mutual Insurance Company v. Steadman, a case which I originally discussed here, the Second District Court of Appeal held that the allegations of Steadman's complaint, if true, would be sufficient to sustain an award of damages for intentional infliction of emotional distress by Liberty Mutual and its claims adjuster.  Previously, in Aguilera v. Inservices, Inc.,  the Florida Supreme Court had held that such claims are not barred by the "exclusive remedy" provision of §440.11, Fla. Stat.

Liberty Mutual had sought review of the Second District's decision in the Florida Supreme Court.  But in this 3/26/2008 order, the supreme court has now declined review.  Therefore, the case will now be returned to the circuit court for further proceedings.

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By a vote of 4-3, the Florida Supreme Court in this 3/20/2008 order has denied review of the Fifth District Court of Appeal's decision in Tractor Supply Company v. Kent, a case from last August which I discussed here and here.

The claimant in that case filed a tort claim against his employer after the workers' compensation carrier denied his workers' compensation claim on the grounds that his medical problems all stemmed from a pre-existing condition.  The Fifth DCA had held that this denial did not estop the employer from asserting workers' compensation immunity as a defense in the subsequent tort action.

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Although we can't tell the facts of the case from the Third DCA's brief opinion in City of Miami v. Gutierrez, decided on 3/12/2008, because of the First DCA cases and the statute cited in the opinion we can surmise that the case involved the estate of an employee suing his employer in tort for injuries sustained while the employee was engaged in some type of "recreational and social activity" connected with his employment.  The Third DCA held that since the employee was not in the course of his employment at the time of his accident, the employer was not entitled to immunity from tort liability. 

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I wrote here about whether an employee who knowingly presents false evidence of his identity to his employer in obtaining employment, thereby violating §440.105(4)(b)9, Fla. Stat., also thereby forfeits his right to workers' compensation benefits if he is injured in a subsequent on-the-job accident.  The authors of this article in the October 2007 edition of the Florida Bar Journal argued that he should.

 "Not so fast," said the First DCA in Matrix Employee Leasing v. Hernandez, decided on 3/10/2008.  The Court concluded that before an employee's benefits may be forfeited, §440.09(4)(a), Fla. Stat., requires that the false statement of identity must have been presented "for the purpose of securing workers' compensation benefits." 

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U.S. Agri-Chemicals Corp. v. Camacho, decided on 3/10/2008, reminds us that only the medical opinions of: (1) an authorized treating physician; (2) an independent medical examiner; or (3) an expert medical advisor are admissible in evidence in a Florida workers' compensation proceeding.  Because Dr. van Lovern was none of the above, the JCC erred in admitting his testimony into evidence, said the First DCA, although such error was harmless in view of the JCC's other finding that he would have reached the same result even without the admission of Dr. van Lovern's opinions.  The JCC also rejected the employer/carrier's argument that the JCC should have appointed an expert medical advisor to resolve a conflict in the medical testimony because they made no timely request that he do so.

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One of the many changes enacted by the 2003 legislature was an amendment to §440.34(3), Fla. Stat., which, for the first time, allowed an employer/carrier to recover its litigation costs from an unsuccessful claimant.  Must the employer/carrier specifically plead entitlement to costs in the pretrial stipulation in order to recover them? No, said the First DCA in F.A. Richard and Associates v. Fernandez, reversing the JCC's conclusion to the contrary.

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Back in July, I wrote here about Raul Saldana, a corrections officer employed by the City of Miami, who suffered from hypertension and heart disease.  He filed a claim for compensation and medical care under the Florida Workers' Compensation Law, relying upon §112.18(1), Fla. Stat., the "Heart-Lung" bill, to establish the compensability of his condition.  But §112.18(1) only affords a presumption of compensability for such conditions; the presumption may be rebutted by evidence that the condition is not job-related.  Here, the JCC found that the presumption of compensability had been rebutted by evidence of: (1) a genetic predisposition to hypertension; (2) onset of hypertension prior to his employment with the employer; (3) a failure properly treat his hypertension; and (4) development of hypertensive heart disease resulting from untreated hypertension.  You can read the JCC's order here.

Saldana appealed the JCC's order to the First DCA, but also filed this petition for writ of prohibition in the Florida Supreme Court in which he challenged the First DCA's jurisdiction to hear his appeal.  The supreme court rejected his challenge in this order.

Now the First DCA has rejected his appeal, concluding that the employer presented evidence sufficient to rebut the presumption.  Saldana v. Miami-Dade County.

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Crum Services v. Lopez, decided on 3/6/2008, illustrates a situation that arises all too often in the context of employee leasing companies.  Crum Services is an employee leasing company (also known as a "professional employer organization" or "PEO") who entered into a contract with P&G Roofing to provide leased employees to P&G.  The contract between Crum and P&G provided that Crum would provide workers' compensation coverage to all of P&G's leased employees.  In order to be a "leased employee," however, the contract specifically provided that the employee must first complete an employment application, a W-4 withholding form, and a Form I-9, all of which had to be delivered to Crum "before the employee commences employment."

Mr. Del Sol, an employee of P&G, hired Lopez to work for P&G at the rate of $80.00 per day.  Lopez did not, however, complete any paperwork for Crum.  He was injured on the third day of his employment with P&G, causing him to miss work for about four months.  Mr. Del Sol took Lopez to the doctor after the accident and promised to pay him $200.00 per week while he was out of work (about four months), but he never did. 

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As he apparently promised he would (see this post), Senator Jeff Atwater, a Republican representing parts of Palm Beach and Broward Counties, has re-introduced a bill identical to last year's bills (see SB 1440 and HB 301 from the 2007 legislative session) which would provide cancer coverage for firefighters and paramedics.  See SB 2314.

Specifically, as §112.18(1) currently does for coronary problems and §112.181 does for hepatitis, SB 2314 would create a rebuttable presumption that "any condition or impairment of the health of a firefighter or paramedic". . . which is caused by cancer and results in total or partial disability or death is presumed to have been accidental and suffered in the line of duty unless the contrary is shown by competent evidence."  In order to take advantage of the presumption, the firefighter or paramedic must have passed a physical examination before commencing employment which failed to reveal any evidence of such condition. 

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On 2/29/2008, Senator Steven R. Wise, a Republican from Northeast Florida, introduced SB 2548 in the Florida Senate.  If passed at the upcoming legislative session set to begin on March 4, this bill would provide significant increases in the workers' compensation benefits payable to injured workers. Specifically, the bill:

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Section 440.10(1)(a), Fla. Stat., requires "every employer coming within the provisions of this chapter" - including both general contractors and subcontractors -  to obtain workers' compensation insurance covering their respective employees.  But if for some reason a subcontractor fails to obtain the required coverage, then §440.10(1)(b), Fla. Stat., requires the general contractor's WC carrier to step in and provide any benefits owed if the subcontractor's employee is injured on the job.  In such cases, the general contractor becomes the "statutory employer" of the subcontractor's employee.

But whether an employer is or is not an "independent corporation" has nothing to do with whether that employer is a "subcontractor."  The First DCA again made that clear in Dunlap v. CSR Rinker Transport, decided on 2/29/2008.  The Court held there that the JCC erred in concluding that Norma Deal Trucking was not a "subcontractor" just because it was an "independent corporation." 

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