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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2021

What’s Hot in Workers’ Comp, Vol. 25, No. 12, December 2021

December 1, 2021

by Linda Wagner Farrell

1.    Prior final compensation order did not predict that permanent total disability benefits would flow from the award as the claimant intended, but did not, undergo a surgery to alleviate the work-related injury.
PraXair, Inc. and Broadspire Services, Inc. v. Celentano, First District Court of Appeals, No. 1D20-927, Decision date Nov. 16, 2020 

The claimant argued that the PTD benefits flowed from her attorney successfully defeating a prior misrepresentation defense to temporary disability benefits. The First District Court of Appeals agreed with the judge and found that the prior Final Compensation Order did not predict that PTD benefits would flow from the award and, therefore, there was no entitlement to penalties, interest, fees or costs.

2.    No competent or substantial evidence to support that employer/carrier only accepted the aggravation; thus, they waived the ability to deny compensability. Hence, the apportionment defense also fails, and full permanent impairment benefits are owed.
Joe Sullivan v. NuC02, LLC/Broadspire, First District Court of Appeals, No. 1D19-3275, Decision date Dec. 9, 2020

The First District Court of Appeals reversed the judge’s finding that the employer/carrier had only accepted an aggravation, which meant that they had waived the ability to deny compensability and assert an apportionment defense. The court further held that the employer/carrier acquiesced to 18% PIR by listing same on the Pre-Trial Stipulation. Also, the employer/carrier’s unilateral de-authorization of the treating provider, due to opinion that no further care was related, did not bar the judge from awarding continued care when the causation defense failed.

3.    The court finds that the judge erred by not ruling based on the notice that should have been provided within 52 weeks of the qualifying event versus when the symptoms manifested.
Palm Beach County Fire Rescue and Preferred Governmental Claims Solutions v. Andrew Wilkes, First District Court of Appeals, No. 20-1615, Decision date Dec. 14, 2020

The Judge of Compensation Claims held that a first responder’s PTSD (due to a drowning event) was compensable when analyzed from the date of its manifestation versus the date of the event. On appeal, the First District Court of Appeals held that the judge erred by not ruling based on the notice that should have been provided within 52 weeks of the qualifying event, rather than when the symptoms manifested. The case was reversed and denied due to untimely notice.

4.    Cancellation of the workers’ compensation insurance policy was not valid because a condition precedent had not been met. Promissory estoppel applied because the employer relied on the certificate of insurance.
Scott v. Jones Construction Co. v. Central Florida Siding Pros, NorGuard Ins. Co., Southeast Personnel Leasing, Inc. Lion Insurance Co., Packard Claims, Nobles American Services, LLC, First District Court of Appeals, No. 1D20–689, Decision date Mar. 16, 2021

The First District Court of Appeals rejected the arguments contending that the workers’ compensation insurance policy cancellation was not valid because a condition precedent had not been met and that promissory estoppel applied because Jones, the general contractor, had relied on the certificate of insurance produced by Central Florida Siding Pros.

5.    Applying the 1989 version of the workers’ compensation statute of limitations law for the right to remedial care relating to insertion or attachment of a prosthetic device.
DECA Manufacturing and Southern Owners Ins./Auto-owners v. Faye O. Beckett, First District Court of Appeals, No. 19-3441, Decision date Apr. 8, 2021

The First District Court of Appeals held that, although continued use of a prosthetic would toll the current version of the statute of limitations, it does not toll the 1989 version given its inapplicability to remedial treatment “relating to” the prosthesis. Here the claimant had screws and rods in her cervical spine but requested pain management and a mechanical bed. The First District Court of Appeals pointed out that the fact that she may have a prosthetic device is not, standing alone, sufficient to prevent the statute of limitation from accruing. The claimant failed to prove that either request had anything to do with the screws and rod in her spine. They also agreed with the lower court judge that mistaken payments do not toll the statute of limitations. 

6.    Medical marijuana still illegal and not reimbursable under Florida’s workers’ compensation statute.
Patrick Shawn Jones v. Grace Healthcare, First District Court of Appeals, No. 19-1684, Decision date Jun. 30, 2021

The First District Court of Appeals noted that under Florida law, marijuana is not reimbursable under the workers’ compensation statute. Moreover, federal law—which they pointed out they are “oath-bound” to follow—characterizes marijuana as having no accepted medical use and makes all possession and use of it illegal throughout the United States. They went on to say that a referral to a physician authorized to prescribe medical marijuana, including even just an evaluation of whether the employee is a good candidate for marijuana treatment, could not be, under any circumstances, “medically necessary” as defined and used in section 440.13, Florida Statutes.

7.    Since unemployment compensation is primary, therefore, it is not technically an “offset” to temporary partial disability benefits.
N. Hannoush Jewelers, Inc. and Massachusetts Bay Ins. c/o Hanover Ins. Group v. Patrick Bly, First District Court of Appeals, No. 20-2439, Decision date Jun. 30, 2021

The First District Court of Appeals only wrote to address the effect of the claimant’s receipt of unemployment compensation benefits on the amount of temporary partial disability benefits awarded. The employer/carrier then asserted that the claimant’s unemployment compensation benefits had to be offset and asked the judge to credit same against any TPD due. The claimant replied that any offset argument would be an affirmative defense and was not pled in the pre-trial stipulation; therefore, the employer/carrier had waived that defense. The court held that unemployment compensation is primary and, therefore, not technically an “offset” to TPD benefits.

8.    Because claimant’s mental injury manifested itself within six months of reaching physical maximum medical improvement and she was not receiving impairment benefits for the physical injury after reaching that point, the statutory cap in Section 440.093(3) does not apply.
Le’tavia Jones v. State of Florida, Department of Corrections/Division of Risk Management, First District Court of Appeals, No. 20-1741, Decision date Jul. 29, 2021

At issue in this case was whether the claimant was entitled to more than six months of temporary benefits while treating for psychiatric injury. The First District Court of Appeals reversed the judge who denied indemnity past six calendar months from the date of physical maximum medical improvement. They held that the six-month limit did not apply in this case because the claimant had not received any impairment benefits. Pointing to W.G. Roe & Sons v. Razo-Guevara, 999 So.2d 708 (Fla. 1st DCA 2008), which held the statutory cap in section 440.093(3) does not apply to a claimant not being paid impairment benefits. 

9.    Judge erred in not considering employer/carrier’s request for expert medical adviser once claimant’s one-time change choice of physician was decreed an authorized treating provider, thereby creating a conflict with the prior physician.
ABM Industries, Inc. and ACE/ESIS v. Maritza Valencia, First District Court of Appeals, No. 1D20-2027, Decision date Sep. 29, 2021

The Judge of Compensation Claims erred in not considering the employer/carrier’s request for an expert medical adviser (EMA) once the claimant’s one-time change choice of physician was rendered an authorized treating provider, thereby creating a conflict with the prior physician. The judge’s order was reversed with regard to the portion awarding indemnity and medical benefits and remanded for the appointment of an EMA and further proceedings.

10.    In other news…
For those wondering what the impact of COVID-19 was on Florida workers’ compensation, from March 2020 to July 2021, there were 46,505 claims and $114 million in benefits paid. 

Good news for 2022…
NCCI has proposed a 4.9% workers’ compensation premium decreased, which if approved would have an effective date of January 1, 2022. NCCI also proposed establishing a workers’ compensation insurance catastrophe fund that would provide for an assessment on employers’ premiums. The assessment would generate revenue to cover workers’ compensation costs in the event of a catastrophic event (like another pandemic). Overall, Florida’s workers’ compensation is performing well as a result of   better risk management practices and safer workplaces. 

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2021 Marshall Dennehey Warner Coleman & Goggin, 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

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.

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.