Workers' Compensation Defense

The First District Court of Appeal reversed a compensation judge’s denial of indemnity benefits to a former employee who developed atrial fibrillation months after resigning from his job. The appellate court emphasized that in occupational disease claims, “time of injury” and “disablement”—not the technical “date of accident”—control the calculation of average weekly wage (AWW). Because the claimant’s last injurious exposure occurred during his employment, the correct AWW was based on his final 13 weeks of wages.

For 23 years the claimant worked as a police officer. He retired and later returned to work with the Department of Corrections. Ultimately, he voluntarily resigned in March of 2021 because of health concerns; complaints of stress due to his job with the Department of Corrections and exhaustion due to the long working hours because of alleged understaffing. The parties agreed that when he resigned, he was making $673.20 per week. 

On July 16, 2021—after his March 2021 resignation—the claimant experienced heart palpitations. He sought medical treatment at the emergency room and was diagnosed with atrial fibrillation. He reported his heart condition to the employer/carrier and asserted an accident date July 16, 2021, the day he experienced cardiac issues. The employer/carrier accepted compensability of the atrial fibrillation and authorized medical care.

In April and June of 2022, the claimant filed petitions for benefits, requesting medical and indemnity benefits and medical care. Pay records revealed that the claimant did not work in the thirteen weeks leading up to July 16, 2021, the claimed date of accident. The employer/carrier argued that no indemnity benefits were due because the claimant’s AWW on the “date of accident” was $0.00, that the claimant “was not an employee” on that day because he was not working for the employer, and that he had no earnings in the thirteen weeks immediately preceding the accident date.

The claimant argued that, because the employer accepted the July 16, 2021, date of accident and atrial fibrillation as compensable, it conceded that he was an “employee” of the employer with an AWW corresponding to that employment.

The judge of compensation claims ultimately denied entitlement to indemnity benefits because he found that the claimant’s AWW was $0.00. The judge reasoned, 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. It highlighted one of the distinguishing factors of occupational disease claims—”disability.” It also explained the relationship of the terms “disability,” “disablement,” “date of accident” and “injury” for purposes of determining an AWW. 

Under the Florida Workers’ Compensation Act, ”’disability’ means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” § 440.02(13), Fla. Stat. (2021) (emphasis added). The plain language of the definition unambiguously focuses on the wages the employee was receiving at the time of the injury. “Disablement” also determines the “date of accident.” See § 440.151(1)(a), Fla. Stat. The disablement of an employee resulting from an occupational disease shall be treated as the happening of an injury by accident so long as the disease “resulted from the nature of the employment.” Id. (emphasis added). The time of injury means the period or periods of exposure. 

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).

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

Thus, in an occupational disease context, the time of injury—when last injurious exposure occurred—is the period of relevant wages. 

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_{What’s Hot in Workers’ Comp, Vol. 29, No. 9, September 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 © 2025 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.}