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

Section 440.185(1) requires an employee to notify his employer of an on-the-job accident within 30 days of its occurrence.  The employee's failure to give timely notice will bar a subsequent petition for benefits unless he can establish that one the statute's four subsections applies.  Subsection (a) will excuse late notice of an injury if the employer had "actual knowledge" of the accident notwithstanding the employee's untimely notice, while subsection (d) will excuse late notice if there are other "exceptional circumstances" in the case.

 

In Marion County v. Futch, decided on 6/5/2008, the JCC had found that the claimant's late notice of his accident  should be excused because the employer had actual knowledge of its occurrence.  But the First DCA reversed, concluding that the JCC had erroneously applied a "constructive knowledge" analysis, i.e., whether the employer should have known of the occurrence, and that in fact there was no evidence to show that the employer had actual knowledge of the accident. 

 

The JCC had further found that "exceptional circumstances" existed to excuse the late notice under subsection (d) because there was no accusation that the claimant had lied about the circumstances of his accident.  But the First DCA concluded that just because a claimant is truthful about the circumstances of his accident does not justify a finding of "exceptional circumstances."

• Email This
• Print
• Comments
• Trackbacks

Section 440.185(1), Fla. Stat., requires an injured worker to report an on-the-job injury to his employer within 30 days "after the date of or initial manifestation of the injury."  Subsection (1)(b) provides an exception to that rule in cases where "[t]he cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion that the injury arose out of and in the course of employment."

 

In Luedke v. Play Space Services, decided on 1/7/2008, the claimant had suffered from spina bifida since birth, and this condition often caused him to experience symptoms in his neck and upper back which were similar to those experienced after his industrial accident.  He did not seek medical attention for that accident until 35 days after its occurrence at which time his physician told him that his symptoms were not due to his spina bifida, but were accidental in nature.  Nevertheless, the JCC found that the claimant's symptoms were directly recognizable, even to a lay person, as being attributable to the heavy work he was performing on the job.  Accordingly, the JCC found that the cause of the claimant's injuries could be identified "without a medical opinion" and therefore did not fall within the exception provided by subsection (1)(b).   

 

On appeal, the majority concluded that whether the cause of the injury could not be identified without a medical opinion was a question of fact.  The majority therefore voted to affirm the JCC's finding in that regard because it involved a "credibility determination."  Judge Browning dissented.

• Email This
• Print
• Comments
• Trackbacks