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What's Hot in Workers' Comp

District Court Holds that Average Weekly Wage Should Be Calculated at Time of Last Injurious Exposure in Occupational Injury Cases

Guglielmo v. State of Florida, Fla. 1st DCA, No. 1D2022-3942, July 30, 2025

September 1, 2025

by Blake J. Hood

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. 


 

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.

Firm Highlights

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.

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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.

Result

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