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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2024

What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 2024

December 1, 2024

by Linda Wagner Farrell

1.    As the employer/carrier was not able to overcome presumption, a firefighter’s COVID-19, requiring heart transplant, was found to be work-related.
Seminole County, Florida and Johns Eastern Company, Inc. v. Chad Braden, Fla. 1st DCA, DCA#: 21-3530

The claimant, a firefighter, tested positive for COVID-19 and within a month suffered a heart attack. Three months prior, in a routine cardiology visit, he had been cleared and had no issues. After the heart attack, his condition deteriorated, and he ultimately required a heart transplant. The judge of compensation claims ruled COVID-19 caused the heart issues. Then the judge found the claimant contracted the virus at work, based on the timeline of his co-worker’s diagnosis of COVID-19, while his close contacts never developed symptoms or tested positive. The First District Court of Appeals affirmed the judge’s ruling, finding it was supported by competent substantial evidence.

2.    Claimant counsel’s appeal of order denying statutory fee on settlement was overturned and held to be reasonable.
Rudolph v. Darien Smith, The Home Depot U.S.A., Inc. and Liberty Mutual Ins. Co., Fla. 1st DCA, DCA#: 22-1627

The claimant settled the medical portion of a complex case, stemming from a 1993 date of accident, with his sixth attorney (Mr. Rudolph) for $13.5 million. They petitioned the judge to award attorney’s fees for all six attorneys for a total of $1,330,000, which is $695,750 lower than the statutory guideline amount at 9.85%, and accounted for 5.9% of the overall settlement. Out of that amount, Mr. Rudolph resolved the liens of all prior counsel. The judge reduced Mr. Rudolph’s fee from $805,000 to $123,000. The First District Court of Appeal reversed, saying the judge erred by being hyper-focused on converting the fee to determine an hourly rate.

3.    The 120-day rule does not apply if the employer/carrier only accepted compensability and provided treatment for a temporary exacerbation.
Verilyn Lunsford v. Hospital Housekeeping Systems Inc. and Corvel Corporation, OJCC# 21-028027

The employer/carrier accepted compensability of an exacerbation of a knee injury. The claimant asserted the employer/carrier failed to issue a 120-day letter and to deny her request within 120 days. The judge of compensation claims stated a correct analysis of this issue requires three findings: (1) the date the employer/carrier first provided benefits for the claimant’s condition, (2) the identity of the specific injury for which benefits were provided, and (3) whether the employer/carrier timely denied compensability of the injury for which it provided benefits. The judge held that the 120-day rule did not apply to the pre-existing knee degenerative joint disease because the employer/carrier never provided any medical treatment, other than for the temporary exacerbation. The claimant appealed, and the First District Court of Appeal affirmed without a written opinion.

4.    Notice requirement is not fulfilled by reporting an injury via Petition for Benefits within 30 days of alleged accident.
Bressler v. Florida School Board Assn and Hartford Underwriters Ins. Co., Fla. 1st DCA, DCA# 22-4145

The claimant, a senior claims adjuster, alleged a bike injury during work but admitted he did not report the accident to his employer. A petition was later filed. The claimant argued that notice was timely because the petition was filed within 30 days of the subject and alleged date of accident. However, the judge of compensation claims pointed out that section 440.185 1(d), Florida Statutes (2021) states: “Documents prepared by counsel in connection with litigation, including but not limited to notices of appearance, petitions, motions, or complaints, shall not constitute notice for purposes of this section.” The claimant testified he did not give notice to his employer of this alleged accident. The petition, pursuant to statute, does not serve to fulfill the notice requirement. The judge also denied the petition based on misrepresentation due to inconsistencies in the claimant’s testimony. The claimant appealed, and the First District Court of Appeal affirmed without a written opinion.

5.    A judge of compensation claims must be specific when awarding non-professional attendant care to a family member.
Kelly Girardin v. AN Fort Myers Imports, LLC, Gallagher Bassett, Fla. 1st DCA, DCA#: 22-1485

The claimant petitioned for attendant care benefits to be paid to her husband. The judge of compensation claims ordered the employer/carrier to pay him for 30 hours per week at the federal minimum wage. The judge made a generalized finding that services, “such as carrying her upstairs for her bathe, qualifies as attendant care under Florida Law.” The judge did not specify which “services” provided by the husband qualify for compensation, and the employer/carrier argued that some services do not qualify.

The First District Court of Appeal agreed with the employer/carrier in this regard and found that the judge erred in its award for non-professional attendant care. The judge could not award compensation for the husband under 440.13(1)(b), Fla. Stat. (2020), “that falls within the scope of household duties and other services normally and gratuitously provided by family members.” 

6.    Pending petition for fees and costs does not toll statute of limitations, nor does payment of attorney’s fees and/or costs, as these petitions are pending and relate to jurisdiction only. 
American Airlines Group; American Airlines and Sedgwick CMS v. Alejandro Lopez, Fla. 1st DCA, DCA#: 23-0379

The employer/carrier asserted a statute of limitations defense in response to a petition filed. The First District Court of Appeal held that the judge of compensation claims erred in presuming that reserving jurisdiction on a pending petition for benefits for attorney’s fees tolls the statute of limitations. Once that issue is resolved, the pending status is effectively extinguished. The judge also erred by disregarding the plain language of the statute. “Pending” status of a petition for benefits is an element of jurisdiction, while “tolling” is a separate legal doctrine that delays the time limits for pursuing a claim. The payment of attorney’s fees and costs is not a “benefit.” To hold same would add another tolling event to the statute outside of the two contained in section 440.19(2); “payment of any indemnity benefits or the furnishing of remedial treatment, care or attendance.”

7.    Judge of compensation claims abused his discretion in rejecting the terms of the employment contract as it expressly stated the claimant would receive his salary only during the five-month championship playing season.
Detroit Tigers, Inc. and Sedgwick CMS v. Austin Sodders, Fla. 1st DCA, DCA#: 23-0827

A dispute arose over the claimant’s average weekly wage when his claim involved a contract over a five-month period. All agreed that the judge of compensation claims was to determine the average weekly wage under section 440.14(1)(d), the so-called catch-all provision, which states: “If any of the foregoing methods cannot reasonably and fairly be applied, the full-time weekly wages of the injured employee shall be used.” The First District Court of Appeal held the judge abused his discretion when rejecting the terms of the contract. There was no competent, substantial evidence to support that the claimant would have been paid $1,500 per month over 12 months. The contract expressly provided he would receive his salary only during the five-month championship playing season. The case was reversed and remanded.

8.    Essential hypertension without evidence of disability did not meet presumption of compensability under Heart/Lung Bill, Fla. Stat. 112.18(1). 
Cloris Vazquez v. City of Miami Beach and Corvel Corporation, OJCC# 22-015627

The claimant, a police officer, had elevated blood pressure. He was treated at a hospital and had further work-up, which caused him to miss work. The judge of compensation claims was not persuaded by any of the arguments offered by the claimant and afforded the expert medical advisor’s opinions the presumption of correctness. The judge held the evidence was insufficient to establish the claimant suffered disability as a result of his diagnosed essential hypertension and that the presumption of compensability under the Heart/Lung Bill did not apply. Further, the judge ruled the remaining medical evidence did not establish a causal relationship of hypertension to his work activity; therefore, compensability was denied. The claimant appealed, and the First District Court of Appeal affirmed the decision per curiam.

9.    An order imposing sanctions on the claimant’s attorney highlights the non-frivolous litigation and ‘good faith’ limitations imposed on the statutory right to file petitions for benefits.
Willie Arrington v. Advanced Disposal – West Palm Beach/ Gallagher Bassett Services, Inc., OJCC # 21-013075

While not a District Court opinion, this judge of compensation claims’ order addresses an ever-increasing source of frustration: the filing and maintaining of petitions for benefits without good faith efforts to either resolve disputes before filing or to dismiss petitions once the disputes are resolved. In this case, the claimant filed five petitions for benefits within twelve weeks. The employer/carrier filed a motion for sanctions, arguing that either the benefits requested had already been provided before the petitions were filed or that they were timely provided and that the petitions were frivolously maintained thereafter. The judge of compensation claims found the single e-mail, sent after business hours the day before filing the petition during business hours, “does not constitute a good faith effort to resolve the matter.” He further found that claimant’s counsel frivolously maintained the petition well after the carrier provided the requested benefits. 

10.    Sufficient compliance with the Florida Drug-Free Work Place policy rules by employers and medical review officers is not enough. 
Louis Gonzalez Chanza v. Orlando World Center Marriott and Marriott International, Inc. and Self-Insured, OJCC # 22-013883

Once again, sufficient compliance with Florida’s Drug-Free Work Place (DFWP) rules by employers and medical review officers is not enough. This case also highlights the disconnect between Florida’s Workers’ Compensation Act and the laws permitting medical marijuana. The judge ruled that the employer did not fully comply with all of the DFWP requirements under section 440.102 because it did not contain a representative sampling of the name, address and phone numbers of local drug rehab programs. Further, the policy did not comply with the portion that required positive confirmation of the test result to the employee in writing. Dr. Portnoy placed the review on “medical hold,” pending receipt of the medical marijuana card and when not received, reported the positive drug test. Therefore, the judge held that the DFWP presumption did not take place and the employer/carrier failed to show that intoxication caused the injury. The First District Court of Appeal affirmed without a written opinion. 



 

What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

 

Firm Highlights

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.