Thought Leadership

1.    Treatment with an authorized provider tolls the statute of limitations, although treatment occurred without employer/carrier’s knowledge and billed to private health insurance
Ortiz v. Winn-Dixie, Inc., 402 So. 3d 301 (Fla. 1st DCA 2024), reh’g denied (Dec. 30, 2024), reh’g denied (Feb. 13, 2025) (aka, Ortiz II)

In earlier proceedings involving the same case—Ortiz I—the court introduced the “two-year master countdown timer” and “tolling timer” concepts in explaining how to construe the time bars for filing petitions for benefits set forth in section 440.19, Florida Statutes. In so doing, Ortiz I held that the one-year tolling provision in section 440.19(2) (prompted by furnishing medical care or paying compensation) does, in fact, apply within the first two years following an accident, something prior case law held otherwise. Thus, under Ortiz I, if an employer/carrier provided benefits immediately following an accident, the initial two-year master timer would never even start ticking, and claimants could effectively “bank” that time. 

By contrast, Ortiz II makes no mention whatsoever of the master/tolling timers. Rather, the new majority opinion focuses only on whether the specific treatment that the claimant received qualified as medical care “furnished” by the employer/carrier sufficient for the one-year tolling provision in section 440.19(2). Ortiz I held that it did not qualify and upheld the judge’s dismissal of the claim. Ortiz II now holds it did qualify and, thus, allowed the claimant’s claim to proceed.

2.    Employers/carriers are entitled to recover benefits paid from third-party settlement after settlement date
Liberty Mut. Ins. Co. v. Lee, 401 So.3d 1245 (Fla. 6th DCA 2025)

The claimant was injured when the elevator he entered at work suddenly stopped and then plunged into a free fall. While he received benefits from his workers’ compensation employer/carrier, he also sued the elevator operator. Pursuant to section 440.39(3)(a), Florida Statutes, the employer/carrier filed a notice of lien in the third-party suit. The claimant did enter into a settlement in the third-party suit, but for over 750 additional days he continued to receive workers’ compensation benefits at a cost to the employer/carrier of over $300,000. 

Pursuant to the statutory calculation, the parties agreed that the employer/carrier was entitled to 11.61% of the benefits paid as its equitable distribution from the settlement proceeds. The real dispute, however, centered on what benefits the 11.61% was to be applied. More specifically, the parties disagreed on when the “valuation date” should be for determining the amount of an employer’s/carrier’s workers’ compensation payments. 

The Sixth District Court of Appeal held that, while the statute does not set forth a “valuation date,” it is unnecessary given the clear directive in the statute entitling employers/carriers to reimbursement of either all or a percentage of benefits they pay up to a claimant’s net settlement amount. 

3.    Award for nonprofessional attendant care reversed because judge failed to distinguish which services qualified for compensation under Florida law
Girardin v. AN Fort Myers Imports, LLC, 403 So.3d 255 (Fla. 1st DCA 2025)

The claimant’s husband provided her with nonprofessional attendant care. The judge awarded him payment for 30 hours per week at the federal minimum wage. The judge made this award based on a generalized finding that what the husband did for the claimant—including carrying her upstairs for her to bathe—qualified as attendant care services under Florida law. However, the employer/carrier argued that some services provided by the husband that were included in the 30-hours-per-week award did not meet the statutory definition for nonprofessional attendant care. The First District Court of Appeal held that the judge did not engage in a detailed analysis of the husband’s activities to ensure the husband was paid only for those services not “within the scope of household duties and other services normally and gratuitously provided by family members.” For that reason, the District Court vacated the award for the husband’s nonprofessional attendant care. 

4.    Average weekly wage should be calculated at time of last injurious exposure in occupational injury cases
Guglielmo v. State, 418 So.3d 656 (Fla. 1st DCA 2025)

In an occupational disease case, the First District Court of Appeal held that the time of injury (when last injurious exposure occurred) is the period of relevant wages for calculation of the average weekly wage (AWW). The claimant worked as a police officer for 23 years, retired, later returned to work—as a corrections officer—and voluntarily resigned in March of 2021 because of health concerns. He complained of stress from his corrections job and exhaustion due to the long hours because of alleged understaffing. The parties agreed that when he resigned, he was making $673.20 per week. 

The judge ultimately denied entitlement to indemnity benefits because he found that the claimant’s AWW was $0.00. The judge reasoned that, 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, noting that 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).

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

5.    Court of Appeal enforces statutory provision divesting judges of compensation claims of subject matter jurisdiction
Sapp v. Sims Crane & Equip. Co./Bridgefield Cas. Ins. Co., 412 So.3d 808 (Fla. 1st DCA 2025)

This case appears, at first glance, to be about collective bargaining agreements, but it is really about the fundamental source and scope of jurisdiction in workers’ compensation cases. 

The claimant was employed as a crane operator and was involved in an accident on October 29, 2020. The first recorded activity with the Office of Judges of Compensation Claims took place when the employer/carrier filed a motion to preserve blood and urine samples within a few days of the accident. Thereafter, the employer/carrier provided benefits, though the claimant later filed four petitions for benefits a few years later—between June and October of 2023. The claimant requested indemnity and medical benefits, and the employer/carrier provided some, but not all, of the benefits requested. In some of its responses, the employer/carrier also stated that subject matter jurisdiction was lacking because the “case is governed by Collective Bargaining Agreement authorized per FL Statute 440.211.” The employer/carrier filed a motion for summary final order, requesting that the judge dismiss any pending claims for lack of subject matter jurisdiction, which was denied due to factual disputes regarding the existence of the collective bargaining agreement. A final hearing regarding certain benefits in dispute was scheduled, and the parties agreed to bifurcate the issues, with the issue of subject matter jurisdiction to be addressed first.

The District Court of Appeal held that for cases in which employers/carriers take the first actions to invoke jurisdiction in workers’ compensation claims and continue to litigate and provide benefits over an extended period of time, subject matter jurisdiction is not thereby created if it never actually existed in the first place.

6.    Employees may not file tort claims against their employers in circuit court without first seeking workers’ compensation benefits
Steak’N Shake, Inc. v. Spears, No. Fla. 5th DCA, No. 5D2024-0148, 2025 WL 1668095, June 13, 2025, reh’g denied (Oct. 1, 2025)

This case sets forth a process for claimants seeking to file civil liability suits against their employers and identifies the final arbiters of workers’ compensation compensability determinations. It does so acknowledging that no other court has addressed the specific issue at hand.

The employee was held at gunpoint while at work and was forced into a backroom where a gunman threatened to kill her. The gunman grabbed the employee by the shoulder and neck during the encounter. The employee experienced severe emotional distress as a result of the robbery, but rather than pursue a claim for workers’ compensation benefits, she sued her employer for civil damages. 

She argued that her case was not compensable because elsewhere in Florida’s Workers’ Compensation Act, mental injuries are deemed non-compensable if they are not accompanied (or caused) by physical injuries. § 440.093, FLA. STAT. (2024). The employer/carrier argued, however, that the claimant could not make the compensability determination on her own and was required to at least request benefits within the workers’ compensation system as a necessary condition to filing a civil suit. The civil trial court agreed with the claimant and ruled that she was permitted to file a civil suit premised on its determination that her accident and injuries were not compensable.

The court announced a new rule, at least within the Fifth District Court of Appeal: employees may not file tort claims against their employers in circuit court without first seeking a determination of whether they are entitled to workers’ compensation benefits. The court highlighted language in Florida Statutes § 440.13(1)(d), stating that compensability questions are determined by only two entities, a “carrier” or a “judge of compensation claims.” A Florida circuit judge, therefore, lacks such authority.

7.    Court of Appeal holds judges of compensation claims lack jurisdiction over employer/carrier-paid costs and have limited role in reviewing employer/carrier-paid fees
Fox v. Sarasota County School Board, 415 So. 3d 736 (Fla. 1st DCA 2025)

The First District Court of Appeal issued an opinion that clarifies the extent of a judge of compensation claims’ discretion, and even jurisdiction, to review attorney fees and costs paid by employers/carriers. The court held that a judge’s role in approving employer/carrier-paid attorney fees for benefits secured under Florida Statutes Section 440.34(1) extends to only reviewing the amount of, rather than entitlement to, attorney fees. The court stated that judges have no jurisdiction whatsoever over employer/carrier-paid costs. The opinion may have significant implications for settlement negotiations and the role of judges in approving “side stipulations” to employer/carrier-paid attorney fees and costs.

8.    Reservation over attorney fee entitlement may not toll statute of limitations
Murphy v. Polk Cnty. Bd. of Cnty. Commissioners, Fla. 1st DCA, No. 1D2022-2752, 2025 WL 2527901, Sept. 3, 2025

The First District Court of Appeal held that a party’s purported reservation over attorney fees, as part of a voluntary dismissal before an employer/carrier accepts compensability over a claim or compensability is adjudicated on the merits, does not toll the statute of limitations. 

The claimant alleged an accident on September 10, 2016. The employer/carrier initially authorized some medical appointments but ultimately denied compensability of the claim in its entirety. The claimant then filed  a first Petition for Benefits, to which the employer/carrier responded with a full denial and furnished no further benefits. The claimant then filed a Notice of Dismissal of the first Petition for Benefits but reserved jurisdiction over claims to entitlement and the amount for attorney fees and costs. 

Approximately two years later, the claimant filed a second Petition for Benefits, requesting indemnity benefits regarding the same accident date. The employer/carrier responded with a denial based on the expiration of the two-year statute of limitations. The employer/carrier then filed a motion asking the judge to require the claimant to file a verified motion for attorney’s fees and costs relating to the first Petition for Benefits. The judge granted the motion, but the claimant failed to file any such verified motion for attorney’s fees and costs. Consequently, the judge dismissed the claim for fees and costs from the first Petition for Benefits. The judge analyzed the nature of attorney fees. Essentially, since the claimant could not possibly show that he secured benefits pursuant to the first Petition for Benefits, the fee claim in that Petition for Benefits was a nullity, even though he reserved jurisdiction over fee entitlement. Because the fee claim in the first Petition for Benefits remained “ancillary” and “collateral,” rather than one that had “ripened” through the securing of benefits or an adjudication on the merits, and two years from the accident elapsed before another Petition for Benefits was filed, all Petitions for Benefits after the first were time barred. 

9.    Daubert evidentiary challenges do not apply to expert medical opinions under Florida’s Workers’ Compensation Act
Sedgwick Claims Mgmt. Services v. Thompson, Fla. 1st DCA, No. 1D2023-0193, Sept. 3, 2025

In a matter of first impression, Florida’s First District Court of Appeal addressed whether Florida Statutes Section 440.25(4)(d) precludes Daubert challenges to Expert Medical Advisor (EMA) opinions. Put simply, Daubert requires that expert opinions result from analysis of reliable facts, use of reliable principles and methods, and reliable application of those principles and methods to the facts of the case. In this case, the court held that the plain language of the statute in conjunction with the ever-evolving changes to Florida’s Workers’ Compensation Act mandates that Daubert cannot be used to exclude EMA opinions. 

10.    Standards for misconduct under Workers’ Compensation Act and Reemployment Assistance Law are not equivalent
Cobb v. TECO Energy Inc., Fla. 1st DCA, No. 1D2024-0787, 2025 WL 2919055, at *1, Oct. 15, 2025

The First District Court of Appeal affirmed the judge’s denial of temporary indemnity benefits that were terminated for “misconduct” under section 440.15(4)(e) of the Workers’ Compensation Act. The court explained, while the claimant was awarded unemployment benefits, that determination was not binding in workers’ compensation proceedings. While the definitions of “misconduct” in the Workers’ Compensation Act and the Reemployment Assistance Law are similar, and while prior cases treated them similarly, the latter statute was substantively amended in 2011–2012. The court held the judge properly applied the statutory definition of misconduct, the factual findings were supported by competent and substantial evidence, and the judge acted within his/her discretion as factfinder. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 12, December 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 © 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.}