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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2023

What’s Hot in Workers’ Comp, Vol. 27, No. 12, December 2023

December 1, 2023

by Linda Wagner Farrell

1.    Death benefits under Chapter 112 (Firefighter’s cancer diagnosis).
Christy Siena v. Orange County Fire Rescue/CCMSI, No. 1D2022-0958, On appeal from an order of the OJCC, Neal P. Pitts, Decision Date: Oct. 25, 2023

The Judge of Compensation Claims ruled that death benefits under Chapter 112 (Firefighter’s cancer diagnosis) were the claimant’s sole remedy. The First District Court of Appeal disagreed and held that the workers’ compensation death benefit is in addition to the benefits provided in Chapter 112. 

2.    Allowing your manager to “pop” your back is not an injury that arose out of employment.
East Coast Waffles, Inc. d/b/a Waffle House, and Brentwood Management Services, Inc. v. Jonathan L. Haselden, No. 1D21-3745, On appeal from an order of the OJCC, William R. Holley, Decision Date: Oct. 4, 2023

A claimant, who participated in his manager “popping” his back at the end of a 17-hour shift, did not sustain an injury that arose out of his employment. The First District Court of Appeal reversed the Judge of Compensation Claims on two points. First, the claimant never plead or proved that the 17-hour shift was the cause of his injuries, which the First District Court of Appeal said would be a repetitive-type trauma with a higher burden of proof. Second, he did not meet his burden to show that the injuries from the manipulation arose from his work. He acquiesced to the manipulation; it was not performed to support his work as a grill cook; and was merely an effort to relieve pain at the end of his workday. 

3.    Florida Appellate Court does a deep dive into the meaning of heart disease.
North Collier Fire Control and Rescue District and PGCS v. John David Harlem, Decision Date: Aug. 9, 2023

After conducting a deep dive into the definition and meaning of “heart disease,” the First District Court of Appeal reversed the judge of compensation claims and held that a thoracic aortic aneurysm is not “heart disease” under the occupational causation presumption found in Section 112.18, Florida Statutes. 

4.    The burden of proof remains! Causal connection must be proven. 
Normandy Insurance Company v. Mohammed Bouayad and Value Car Rental, LLC, Case No. 1D21-1717, On appeal from an order of the OJCC, Neal P. Pitts, Decision Date: Aug. 16, 2023

The First District Court of Appeal reversed the Judge of Compensation Claims’ finding of compensability involving this claimant, who was shot by an unknown assailant while walking between his employer’s locations, did not meet his burden of proof for causal connection. However, the Appellate court certified a question to the Supreme Court for clarification:

Notwithstanding Strother v. Morrison Cafeteria, 383 So. 2d 623 (Fla. 1980), when an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element, as defined by Section 440.02(36), Florida statutes, necessary for compensability under the Worker’s Compensation Law?

As an update on this case, the motion for rehearing en banc was denied on October 20, 2023.

5.    Delaying a decision on compensability by opting to pay and investigate requires written notice, and the letter does not start the 120-day period.
Churchill VDBI Services, LLC and Corvel Corporation, Case No. 1D 21–3199, On appeal from Judge Clark, Decision Date: May 31, 2023

The First District Court of Appeals held that an employer/carrier’s election to delay their decision about compensability by opting to pay and investigate requires written notice and that the initial provision of benefits starts the 120-day period, not the letter sent to the claimant. But only the letter invokes the right to rely on the pay and investigate statutory mechanism. The court indicated: “…only a timely letter will suffice.”

6.    It is imperative to acknowledge all requests/referrals within the proper time frames.
James Johnson v. Palm Beach County School/York Risk Services Group, OJCC Case No.: 19-004371TAH, Judge Hedler, District Court of Appeal Case No.: 1D22-1080

The Judge of Compensation Claims ruled that a recommendation for a second opinion via referral from an authorized treating physician is subject to both Sections 440.13(3)(d) and 440.13(3)(i). Section 44.13(3)(d) provides: “A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of third business day after receipt of the request consents to the medical necessity for such treatment.” Section 440.13(3)(i) provides that a claim for specialist consultations “is not valid and reimbursable unless the services have been expressly authorized by the carrier, unless the carrier failed to respond within 10 days to a written request for authorization.” It is imperative to acknowledge all requests/referrals within the time frames above. The First District Court of Appeal affirmed without a written opinion (Per Curiam issued by First District Court of Appeal on May 3, 2023.) 

7.    Medical transportation and the ongoing challenges post-COVID with vendors not being staffed appropriately.
James Godwin v. Sarasota County Government and Johns Eastern Company, Inc., OJCC# 22-018728, JCC Grindal, St. Petersburg District, Decision Date: Mar. 30, 2023

This is an interesting case from a Judge of Compensation Claims involving medical transportation that highlights the ongoing challenges post-COVID with vendors not being staffed appropriately. The judge emphasized that there is a difference between authorizing and providing benefits. The transportation company was unreliable, but no efforts were made to find another vendor. 

With regard to advising the claimant that he could use a rideshare company and seek reimbursement, the judge pointed out that there is no statutory support for the contention that the claimant can be required by the employer/carrier to use his own funds for treatment and then seek reimbursement for the funds he expended. Therefore, the judge held that the offer of reimbursement does not satisfy the employer/carrier’s duty to provide medical transportation and granted the request for the provision of medical transportation.

8.    Per curiam opinion finds there was competent, substantial evidence to support the judge’s findings. 
Lita Lange v. Cleveland Clinic Martin Health Systems, Inc., and Cleveland Clinic Tradition Hospital/Commercial Risk Management, Inc., No. 1D22-1150, Decision Date: Feb. 22, 2023

A clinical coordinator who received a required flu vaccine was later diagnosed with Guillian-Barre Syndrome (GBS). She claimed that she timely reported this after the GBS was diagnosed and related it to the flu vaccine administered many months before. The Judge of Compensation Claims did a very thorough analysis of GBS and found that the claimant’s timing of the vaccine versus the timing of her symptoms did not correlate with the medical evidence. The judge also analyzed Daubert objections made by both parties. The judge agreed with the untimely reporting defense asserted by the employer/carrier. The claimant appealed the judges’ final order, and the First District Court of Appeal issued a per curiam opinion indicating that there was competent, substantial evidence to support the judge’s findings. 

9.    The Appellate Court finds that the employer/carrier forfeits the right of seeking a one time physician change due to an untimely response.
Jace Andrews v. McKim & Creed and Travelers Property Casualty, No. 1D21-427, Decision Date: Feb. 1, 2023 

The claimant sent a written request to the employer/carrier on June 20, 2019, exercising his right to one time change in physician. The employer/carrier failed to respond. On July 2, 2019, the claimant filed a Petition for Benefits, again requesting the one time change. Twenty-seven days later, the employer/carrier filed a response granting the change and naming Dr. Feiertag as the alternate physician with corresponding appointment information. The claimant did not attend the appointment. Subsequently, the claimant voluntarily dismissed the petition.

Then on July 28, 2020, the claimant filed a second petition, requesting authorization of his chosen alternate physician, Dr. Roush. Three days later, the employer/carrier indicated that the claimant’s request was denied and that Dr. Feiertag was the current authorized one time change physician. Before the hearing on the second petition, the claimant had an evaluation from Dr. Roush on his own.

At the hearing, the claimant argued that the employer/carrier forfeited its right of selection when it failed to respond timely to his first request on June 20, 2019. The employer/carrier argued that the claimant’s voluntary dismissal of the first petition waived or extinguished his right of selection, and that his filing of the second petition equated to a new request for a one time change to which it responded timely. 

The Judge of Compensation Claims concluded that, because the claimant did not attend the employer/carrier’s scheduled appointment, he did not acquiesce to the authorization. The judge also rejected the argument that the claimant had forfeited his right of selection. However, the judge denied the claimant’s request for authorization of Dr. Roush because the claimant had withdrawn his request for a one time change when he voluntarily dismissed the petition in its entirety, and because the second petition constituted a new request. The claimant filed a motion for rehearing, which the judge denied. This appeal followed.

The Appellate Court held that the judge erred as follows: (1) by determining that the claimant waived his right of selection when the affirmative defense of waiver was never raised by the employer/carrier until their trial memorandum; (2) in holding that the voluntarily dismissal signaled a withdrawal or abandonment of the request for a one time change when the claimant had asserted his right to a one time change in writing prior to filing the first petition; and (3) failing to adhere to the First District Court of Appeal’s holding in City of Bartwo v. Flores, 301 So. 3d 1091 (Fla. 1st District Court of Appeal 2020), which held that the employer/carrier forfeits the right of selection if it fails to timely respond. 

The order was reversed and remanded for authorization and scheduling of an appointment with Dr. Roush as the claimant’s one time change physician.

10.    Florida District Court of Appeal upholds denial of benefits to a first responder for his claims of mental injuries from work-related trauma.
Roger Williams v. Brevard County Fire Rescue/PGCS, District Court of Appeal # 22-0533

The First District Court of Appeal affirmed the final compensation order below, opining that the expert medical testimony supported the Judge of Compensation Claims’ denial of the claimant’s Fla. Stat. Sec. 112.1815(2)(a)(3) claim. It was held that the accident did not give rise to any need for treatment due to post-traumatic stress disorder, or any other compensable mental injury, regardless of the evidence standard used by the judge. However, they agreed with the claimant’s assertion that first responder claimants can seek workers’ compensation benefits for PTSD under either Sec.112.1815(2)(a)(3) or paragraph (5) or both.


 

What’s Hot in Workers’ Comp, Vol. 27, No. 12, December 2023 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 © 2023 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

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

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.

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.