Publications
The correct calculation of average weekly wage does not include personal, holiday, vacation, sick or vacation sell-back time.
The Board framed the issue in this case as: Should the claimant’s average weekly wage be calculated using the 26 weeks prior to his work injury, how should that be done and what should be included in that calculation?
Case Law Alerts, 4th Quarter, October 2018
Limit on expert witness fees does not apply to defense medical experts.
The claimant argued that the employer’s expert’s fee of $5,000 was too high and violated the Workers’ Compensation Act as well as the healthcare practice guidelines. Regulation 19 Del.
Case Law Alerts, 4th Quarter, October 2018
Board denies termination petition but also criticizes claimant’s current medical treatment.
The Board noted that, as the moving party, the employer has the burden of showing that the claimant is not completely incapacitated or, in other words, is medically employable.
Case Law Alerts, 4th Quarter, October 2018
A Judge of Compensation Claims may consider a claimant’s financial need relative to her request for an advance.
The claimant requested a $2,000 advance in order to pay for an IME. The employer argued that the claimant failed to show a financial need for the advance.
Case Law Alerts, 4th Quarter, October 2018
Claimant unable to overcome presumption of marijuana intoxication.
Florida Statute 440.09(7)(b) allows a claimant to rebut the presumption of intoxication by clear and convincing evidence that the intoxication or the influence of drugs did not contribute to the injury. Per F.S.
Case Law Alerts, 4th Quarter, October 2018
First District Court of Appeals holds 120-day rule is an affirmative defense that must be pled timely and specifically by claimant.
This claim involved a low back injury and request for fusion surgery. The employer/carrier asserted a major contributing cause defense.
Case Law Alerts, 4th Quarter, October 2018
Treating physician is often in better position to opine on causal relationship than an expert who examines patient in order to give expert testimony.
The Judge of Compensation denied the petitioner’s motion for a total knee replacement based upon the testimony of Dr.
Case Law Alerts, 4th Quarter, October 2018
Judge of Compensation orders respondent to pay for petitioner’s medical marijuana.
The petitioner suffers from muscular spasticity, resulting from a work-related injury. Despite the respondent’s objections, the Judge of Compensation refused to follow the recent Maine Supreme Court decision in Burgoin v.
Case Law Alerts, 4th Quarter, October 2018
Judge of Compensation not bound by opinions of any one or all medical experts.
After injuring his right shoulder and chest in a work-related accident, the petitioner filed a claim, but did not specifically allege injury to the cervical spine.
Case Law Alerts, 4th Quarter, October 2018
A C&R Agreement cannot be used to set aside a fee review determination.
According to the Commonwealth Court, paragraph 10 of the C&R Agreement—stating that the employer would pay reasonable, necessary and related medical expenses incurred before the hearing date—obligated the employer to pay for the me
Case Law Alerts, 4th Quarter, October 2018