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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

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

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

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.