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What's Hot in Workers' Comp

District Court Holds that Average Weekly Wage Should Be Calculated at Time of Last Injurious Exposure in Occupational Injury Cases

Guglielmo v. State of Florida, Fla. 1st DCA, No. 1D2022-3942, July 30, 2025

September 1, 2025

by Blake J. Hood

The First District Court of Appeal reversed a compensation judge’s denial of indemnity benefits to a former employee who developed atrial fibrillation months after resigning from his job. The appellate court emphasized that in occupational disease claims, “time of injury” and “disablement”—not the technical “date of accident”—control the calculation of average weekly wage (AWW). Because the claimant’s last injurious exposure occurred during his employment, the correct AWW was based on his final 13 weeks of wages.

For 23 years the claimant worked as a police officer. He retired and later returned to work with the Department of Corrections. Ultimately, he voluntarily resigned in March of 2021 because of health concerns; complaints of stress due to his job with the Department of Corrections and exhaustion due to the long working hours because of alleged understaffing. The parties agreed that when he resigned, he was making $673.20 per week. 

On July 16, 2021—after his March 2021 resignation—the claimant experienced heart palpitations. He sought medical treatment at the emergency room and was diagnosed with atrial fibrillation. He reported his heart condition to the employer/carrier and asserted an accident date July 16, 2021, the day he experienced cardiac issues. The employer/carrier accepted compensability of the atrial fibrillation and authorized medical care.

In April and June of 2022, the claimant filed petitions for benefits, requesting medical and indemnity benefits and medical care. Pay records revealed that the claimant did not work in the thirteen weeks leading up to July 16, 2021, the claimed date of accident. The employer/carrier argued that no indemnity benefits were due because the claimant’s AWW on the “date of accident” was $0.00, that the claimant “was not an employee” on that day because he was not working for the employer, and that he had no earnings in the thirteen weeks immediately preceding the accident date.

The claimant argued that, because the employer accepted the July 16, 2021, date of accident and atrial fibrillation as compensable, it conceded that he was an “employee” of the employer with an AWW corresponding to that employment.

The judge of compensation claims ultimately denied entitlement to indemnity benefits because he found that the claimant’s AWW was $0.00. The judge reasoned, because there was no “contract of hiring in force at the time of the accident,” there were no “wages.” The judge stated, “[a]s the claimant’s accident date occurred 119 days (17 weeks) after leaving his employment, he was not an employee in the 13 weeks preceding his accident.”

The First District Court of Appeal reversed. It highlighted one of the distinguishing factors of occupational disease claims—”disability.” It also explained the relationship of the terms “disability,” “disablement,” “date of accident” and “injury” for purposes of determining an AWW. 

Under the Florida Workers’ Compensation Act, ”’disability’ means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” § 440.02(13), Fla. Stat. (2021) (emphasis added). The plain language of the definition unambiguously focuses on the wages the employee was receiving at the time of the injury. “Disablement” also determines the “date of accident.” See § 440.151(1)(a), Fla. Stat. The disablement of an employee resulting from an occupational disease shall be treated as the happening of an injury by accident so long as the disease “resulted from the nature of the employment.” Id. (emphasis added). The time of injury means the period or periods of exposure. 

The definition of “disability” deliberately uses the term “injury” and “time of injury” as the critical time focus. It does not use the term “accident.” See § 440.02(13), Fla. Stat. (2021). Furthermore, the definition of “wages” pinpoints those earnings at the “time of injury,” which in occupational disease cases relates to the period of exposure. See § 440.02(28), Fla. Stat. (2021).

The relevant “wages” for purposes of calculation are those paid to the claimant, in this case, for his services at the “time of injury.” And as the parties stipulated, there existed 13 weeks of wages preceding the last injurious exposure—the claimant’s last day of work—which provided an AWW of $673.20.

Thus, in an occupational disease context, the time of injury—when last injurious exposure occurred—is the period of relevant wages. 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 2025, 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 © 2025 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

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.