.

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

Congress Passes Financial Exploitation Prevention Act

On June 25, 2026, the House passed the Financial Exploitation Prevention Act of 2025 (“the Act”) by a vote of 414 to 2. The Act allows financial advisors and firms to delay suspicious transactions regarding the accounts of clients who are 65 or older, if they believe financial exploitation has occurred or is about to take place. With the advancement of technology and AI, the House’s overwhelming bipartisan passage of the Financial Exploitation Prevention Act represents an important step in strengthening the financial industry’s ability to combat the growing threat of elder financial exploitation. The Act recognizes what advisors have long known that financial professionals are often the first to detect suspicious behavior but have historically lacked clear legal authority to intervene before irreversible financial harm occurs. From the industry’s perspective, the bill accomplishes several important objectives, including the following: (1) Provides a practical “pause button” by allowing financial professionals to temporarily delay certain transaction requests when there is a reasonable belief that a senior or vulnerable adult is being financially exploited; (2) Empowers financial professionals to act by providing greater certainty that firms can act in good faith to protect clients without unnecessary legal risk; and (3) Strengthens investor protection without sacrificing client rights by allowing temporary delays based on a reasonable suspicion of exploitation, which is intended only to allow additional review and not to deny clients access to their money indefinitely. In sum, the Financial Exploitation Prevention Act will equip financial professionals with practical, carefully tailored tools to stop suspected financial exploitation before client assets are lost. By allowing firms to temporarily delay suspicious transactions under defined circumstances, Congress is recognizing the critical role advisors play as the first line of defense against increasingly sophisticated fraud schemes. The Act strikes an appropriate balance between protecting vulnerable investors and preserving individual financial autonomy, while reinforcing collaboration among advisors, families, and law enforcement to combat financial exploitation. The bill now awaits Senate action.

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

New Jersey Expands Family Leave Protections Effective July 17, 2026

On January 17, 2026, Governor Murphy signed into law legislation expanding the New Jersey Family Leave Act (NJFLA). Beginning July 17, 2026, significant amendments to the NJFLA will expand job-protected family leave to smaller businesses and more employees across the state. The new law broadens coverage by lowering the threshold for private employers from 30 employees to 15 employees, meaning many smaller businesses will now be subject to the NJFLA. Employees of state and local government agencies will continue to be covered regardless of the size of the employer. The amendments also make it easier for employees to qualify for leave. Under the revised law, an employee will be eligible after three months of employment and at least 250 hours worked during the preceding 12 months, replacing the previous requirement of 12 months of employment and 1,000 hours worked. Currently, New Jersey's Temporary Disability Insurance (TDI) and Family Leave Insurance (FLI) programs provide eligible employees with wage replacement while they are on leave but do not independently guarantee job protection. The recent amendments to the New Jersey Family Leave Act (NJFLA) expand these protections by extending job-protected leave to additional employees. Under the amended law, employees receiving TDI or FLI benefits may be entitled to return to the same position they held before taking leave, or to an equivalent position with the same seniority, status, pay, and benefits. Although the legislation also states that it does not expand or modify an employee's reinstatement rights under the NJFLA, the amendments appear to provide job protection to eligible employees receiving TDI or FLI benefits without requiring them to separately satisfy the eligibility requirements of the NJFLA or the federal Family and Medical Leave Act (FMLA). As a result, some employees may be entitled to longer periods of job-protected leave than were previously available under existing law. With these amendments, New Jersey continues to strengthen workplace protections by expanding access to job-protected family leave for eligible employees. These changes significantly expand access to job-protected family leave and may require employers to update their leave policies, employee handbooks, and HR practices. Notably, employers who were previously not required to administer NJFLA may need to amend their policies and/or create new protocols to come into compliance with the NJFLA. Failure to do so would prove costly, as the penalties for non-compliance are significant.

Thought Leadership

Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline

Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury.  Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998. For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer. In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability. The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline. Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter. The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant. The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing. The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations. As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer. The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements. Therefore, the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b). Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements. For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.