.

What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2022

What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 2022

December 1, 2022

by Linda Wagner Farrell

1.    Rita Noa v. City of Aventura and Florida League of Cities, DCA#: 21-0549; Decision date: January 26, 2022 

The claimant argued that an annual merit bonus should be included in her average weekly wage. The First District Court of Appeal agreed and reversed the lower court opinion denying inclusion. The court held that the claimant’s merit bonus was analogous to profits or commissions at issue in prior cases and indicated it should be treated in a like manner. They held that the claimant’s average weekly wage should include a pro rata share of her annual performance bonus.

2.    Silberberg v. Palm Beach Cty. Sch. Bd., (47 Fla. L. Weekly D461); February 2022
 
A companion opinion to the Soya case below, the First District Court of Appeal attempted to clarify compensability in trip and fall cases following the 2019 Valcourt-Williams decision, which they described as “a narrow, trip and fall/comfort break accident case.” The court noted in Silberberg that compensability always turns on whether the employment led to the risk of the injury. If an accident occurs and does not involve a comfort break, only the presence of an idiopathic condition would trigger the “increased hazard” test.

3.    Soya v. Health First, Inc., (47 Fla. L. Weekly D 489); February 2022

In this compassion case to Silberberg, the court clarified that in cases where the claimant is injured while engaged in work activities and there are no pre-existing conditions, or competing causes of an injury, then work is the major contributing cause of the injury. Under the premises rule, injuries at the workplace are compensable if the injury occurred while performing activities, incidental to their job, such as going into work, or leaving work.

4.    Kelly Air Systems, LLC, Amtrust North America and Technology Ins. Co. v. Dorinda Kohlun, as claimant for Aaron Kohlun, Injured Employee, DCA# 21-0976; Decision date: March 16, 2022

This case involved the going and coming rule. The First District Court of Appeal felt that this case presented an opportunity to analyze the application of the statutory language as prior decisions did not offer substantive guidance on the definition or interpretation of “exclusive personal use.” An employee is not in travel status when he is traveling to or from work, which means that an injury suffered while traveling to and from work, even where the employee regularly works in a travel status, are not compensable. The claimant in this case was traveling in an employer-provided vehicle available for his exclusive personal use for travel to and from work, and he was not compensated for his travel. Therefore, the injury was not compensable.

5.    Joseph Guerrera v. Becton Dickinson & Co. and Sedgwick CMS, DCA#: 21-1788; Decision date: May 4, 2022

The First District Court of Appeal overruled the lower court judge and held that the average weekly wage can be increased even if the resulting compensation rate remains at the maximum. They also found that fee entitlement was still owed even though the increase in the average weekly wage was less than what the claimant had requested. The law does not require an exact match between the claim and the award. They disagreed with the judge who ruled that “no actual real benefit was secured.”

6.    LFI Ft. Pierce and ESIS WC Claims v. Dewayne Holmes, Blue Goose Growers LLC/FFVA Mutual Insurance Company, DCA#: No. 1D18-5243; Decision date: May 6, 2022

The claimant chose to ride home with a co-worker, who fainted at the wheel, causing a serious motor vehicle accident. Both employees were leased employees. The client company asserted immunity and the special hazard exception to the going and coming rule in a civil action. The leasing company was dismissed from that claim. In the worker’s compensation claim, the leasing company argued there was no exception and that the claim was barred by the going and coming rule. The Judge of Compensation Claims ruled that the leasing company was estopped from asserting their arguments because the client company had argued to the contrary in the circuit court matter. The judge also said that the leasing company benefited from the client company’s argument by being dismissed and held that two employers shared a special relationship. The judge further found that the going and coming rule did not apply because the co-worker’s fainting was a “special hazard.” The judge also held that the fainting experienced by the co-worker arose directly out of the employment. The leasing company challenged all of the judge’s rationales and holdings, and the First District Court of Appeal found merit in all. 

The appellate court held that neither estoppel, nor the special hazard doctrine, applied because the claimant did not establish the required elements. Further, estoppel did not apply because the two employers have adverse interests in a workers’ compensation setting. Further, an injury might be compensable when the employer sets its cause in motion, within the course and scope of employment, of the injured worker. That may apply to the co-worker who fainted, but it does not extend to the claimant because it was not foreseeable. The claimant’s decision to ride with a co-worker does not result in finding that the accident arose out of the course and scope of his employment.

7.    Sophia Sandifort v. Akers Custom Homes, Inc. and Amerisure Insurance, DCA#: 20-1892; Decision date: July 13, 2022

This case involved a minor who died on his first day of his very first job. The mother sought death benefits. The employer accepted compensability of the workplace death and paid medical and funeral costs but denied death benefits. The employer asserted that the mother and her other children were not dependent on her son. The mother had been supporting herself and her children with SSI benefits her deceased son received because of a learning disability. The First District Court of Appeal held that SSI benefits did not constitute dependency for the purpose of death benefits.

8.    Kelly Girardin v. AN Fort Myers Imports, LLC d/b/a AutoNation Toyota Fort Myers/Gallagher Bassett, No. 1D21-3405; Decision date: August 10, 2022    

This case involved yet another issue of attendant care where a judge and carrier attempted to adhere to the strict language of the statute. The First District Court of Appeal held that the statute requires a written prescription with certain information, but said that same does not relieve an employer/carrier of its obligation to “monitor a claimant’s injuries and provide needed benefits“ or excuse any “attempt to hide behind a wall of Will for willful ignorance.“

9.    Ismael Tiburcio v. Hillsborough County Sheriff’s Office/Commercial Risk Management, No. 1D21-1330; Decision date: August 17, 2022

This case involved the heart/lung presumption. The employer/carrier argued that the officer departed in a material fashion from the prescribed course of treatment of his personal physician. Because the claimant was seeking compensability for heart disease and his alleged noncompliance with his personal physician’s recommendations were for conditions other than heart disease, the First District Court of Appeal held that the judge erred by applying the reverse presumption provision and the case was remanded and reversed.

10.    Eddy Junior Bonhomme v. Staff Team Hotels, Corp. and Frank Winston Crum Insurance, Inc., No. 1D21-881; Decision date: October 12, 2022

This case involved a claimant working as a laundry attendant at a hotel and was very factually intensive. The claimant testified about a very specific incident that occurred on May 22, 2019. He did not report the injury and treated at the emergency room on June 3, June 9, and June 25. When he returned for treatment on July 17, that was the first mention of any neck or back pain. He then filed a claim for workers’ compensation benefits. The Judge of Compensation Claims held that the claimant did not know about his injury until July 17, when the diagnosis was first mentioned in the medical records. The First District Court of Appeal disagreed and held the diagnosis from the emergency room does not necessarily start the clock and pointed out that the claimant was very clear that he knew at the moment in May that his pain began and never went away.

 

What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 2022 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 © 2022 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

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. 

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.