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What's Hot in Workers' Comp

TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2022

What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 2022

December 1, 2022

by Linda Wagner Farrell

1.    Rita Noa v. City of Aventura and Florida League of Cities, DCA#: 21-0549; Decision date: January 26, 2022 

The claimant argued that an annual merit bonus should be included in her average weekly wage. The First District Court of Appeal agreed and reversed the lower court opinion denying inclusion. The court held that the claimant’s merit bonus was analogous to profits or commissions at issue in prior cases and indicated it should be treated in a like manner. They held that the claimant’s average weekly wage should include a pro rata share of her annual performance bonus.

2.    Silberberg v. Palm Beach Cty. Sch. Bd., (47 Fla. L. Weekly D461); February 2022
 
A companion opinion to the Soya case below, the First District Court of Appeal attempted to clarify compensability in trip and fall cases following the 2019 Valcourt-Williams decision, which they described as “a narrow, trip and fall/comfort break accident case.” The court noted in Silberberg that compensability always turns on whether the employment led to the risk of the injury. If an accident occurs and does not involve a comfort break, only the presence of an idiopathic condition would trigger the “increased hazard” test.

3.    Soya v. Health First, Inc., (47 Fla. L. Weekly D 489); February 2022

In this compassion case to Silberberg, the court clarified that in cases where the claimant is injured while engaged in work activities and there are no pre-existing conditions, or competing causes of an injury, then work is the major contributing cause of the injury. Under the premises rule, injuries at the workplace are compensable if the injury occurred while performing activities, incidental to their job, such as going into work, or leaving work.

4.    Kelly Air Systems, LLC, Amtrust North America and Technology Ins. Co. v. Dorinda Kohlun, as claimant for Aaron Kohlun, Injured Employee, DCA# 21-0976; Decision date: March 16, 2022

This case involved the going and coming rule. The First District Court of Appeal felt that this case presented an opportunity to analyze the application of the statutory language as prior decisions did not offer substantive guidance on the definition or interpretation of “exclusive personal use.” An employee is not in travel status when he is traveling to or from work, which means that an injury suffered while traveling to and from work, even where the employee regularly works in a travel status, are not compensable. The claimant in this case was traveling in an employer-provided vehicle available for his exclusive personal use for travel to and from work, and he was not compensated for his travel. Therefore, the injury was not compensable.

5.    Joseph Guerrera v. Becton Dickinson & Co. and Sedgwick CMS, DCA#: 21-1788; Decision date: May 4, 2022

The First District Court of Appeal overruled the lower court judge and held that the average weekly wage can be increased even if the resulting compensation rate remains at the maximum. They also found that fee entitlement was still owed even though the increase in the average weekly wage was less than what the claimant had requested. The law does not require an exact match between the claim and the award. They disagreed with the judge who ruled that “no actual real benefit was secured.”

6.    LFI Ft. Pierce and ESIS WC Claims v. Dewayne Holmes, Blue Goose Growers LLC/FFVA Mutual Insurance Company, DCA#: No. 1D18-5243; Decision date: May 6, 2022

The claimant chose to ride home with a co-worker, who fainted at the wheel, causing a serious motor vehicle accident. Both employees were leased employees. The client company asserted immunity and the special hazard exception to the going and coming rule in a civil action. The leasing company was dismissed from that claim. In the worker’s compensation claim, the leasing company argued there was no exception and that the claim was barred by the going and coming rule. The Judge of Compensation Claims ruled that the leasing company was estopped from asserting their arguments because the client company had argued to the contrary in the circuit court matter. The judge also said that the leasing company benefited from the client company’s argument by being dismissed and held that two employers shared a special relationship. The judge further found that the going and coming rule did not apply because the co-worker’s fainting was a “special hazard.” The judge also held that the fainting experienced by the co-worker arose directly out of the employment. The leasing company challenged all of the judge’s rationales and holdings, and the First District Court of Appeal found merit in all. 

The appellate court held that neither estoppel, nor the special hazard doctrine, applied because the claimant did not establish the required elements. Further, estoppel did not apply because the two employers have adverse interests in a workers’ compensation setting. Further, an injury might be compensable when the employer sets its cause in motion, within the course and scope of employment, of the injured worker. That may apply to the co-worker who fainted, but it does not extend to the claimant because it was not foreseeable. The claimant’s decision to ride with a co-worker does not result in finding that the accident arose out of the course and scope of his employment.

7.    Sophia Sandifort v. Akers Custom Homes, Inc. and Amerisure Insurance, DCA#: 20-1892; Decision date: July 13, 2022

This case involved a minor who died on his first day of his very first job. The mother sought death benefits. The employer accepted compensability of the workplace death and paid medical and funeral costs but denied death benefits. The employer asserted that the mother and her other children were not dependent on her son. The mother had been supporting herself and her children with SSI benefits her deceased son received because of a learning disability. The First District Court of Appeal held that SSI benefits did not constitute dependency for the purpose of death benefits.

8.    Kelly Girardin v. AN Fort Myers Imports, LLC d/b/a AutoNation Toyota Fort Myers/Gallagher Bassett, No. 1D21-3405; Decision date: August 10, 2022    

This case involved yet another issue of attendant care where a judge and carrier attempted to adhere to the strict language of the statute. The First District Court of Appeal held that the statute requires a written prescription with certain information, but said that same does not relieve an employer/carrier of its obligation to “monitor a claimant’s injuries and provide needed benefits“ or excuse any “attempt to hide behind a wall of Will for willful ignorance.“

9.    Ismael Tiburcio v. Hillsborough County Sheriff’s Office/Commercial Risk Management, No. 1D21-1330; Decision date: August 17, 2022

This case involved the heart/lung presumption. The employer/carrier argued that the officer departed in a material fashion from the prescribed course of treatment of his personal physician. Because the claimant was seeking compensability for heart disease and his alleged noncompliance with his personal physician’s recommendations were for conditions other than heart disease, the First District Court of Appeal held that the judge erred by applying the reverse presumption provision and the case was remanded and reversed.

10.    Eddy Junior Bonhomme v. Staff Team Hotels, Corp. and Frank Winston Crum Insurance, Inc., No. 1D21-881; Decision date: October 12, 2022

This case involved a claimant working as a laundry attendant at a hotel and was very factually intensive. The claimant testified about a very specific incident that occurred on May 22, 2019. He did not report the injury and treated at the emergency room on June 3, June 9, and June 25. When he returned for treatment on July 17, that was the first mention of any neck or back pain. He then filed a claim for workers’ compensation benefits. The Judge of Compensation Claims held that the claimant did not know about his injury until July 17, when the diagnosis was first mentioned in the medical records. The First District Court of Appeal disagreed and held the diagnosis from the emergency room does not necessarily start the clock and pointed out that the claimant was very clear that he knew at the moment in May that his pain began and never went away.

 

What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 2022 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 © 2022 Marshall Dennehey Warner Coleman & Goggin, 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

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

SIU Gets a Boost: NJ Supreme Court Affirms Insurers' Right to Litigate, Not Arbitrate, Fraud Claims

In a significant win for insurers' Special Investigation Units, the New Jersey Supreme Court clarified that statutory insurance fraud and racketeering claims may proceed in court rather than through PIP arbitration. At issue was whether insurance fraud claims brought under New Jersey's Insurance Fraud Prevention Act (IFPA) and the state's Anti-Racketeering Act (NJ RICO) are subject to mandatory arbitration under the Automobile Insurance Cost Reduction Act’s (AICRA) PIP dispute-resolution framework. Allstate had sued a network of medical practices, physicians, and related corporate entities, alleging a scheme to extract more than $1.7 million in PIP benefits through fraudulent and misleading billing. The trial court dismissed Allstate's complaint and compelled arbitration, reading AICRA's arbitration clause — which covers "any dispute regarding the recovery of... benefits" under PIP coverage, N.J.S.A. 39:6A-5.1(a) — as sweeping in fraud and racketeering claims along with routine benefit disputes. The Supreme Court affirmed the Appellate Division's reversal, adopting Judge Gilson's opinion below (480 N.J. Super. 566 (App. Div. 2025)) as its own reasoning. The Court held that IFPA and RICO claims fall outside the scope of AICRA's PIP arbitration mechanism because that "streamlined and specialized" process cannot grant the relief those statutes contemplate — treble damages, injunctive relief, broad discovery, and joinder of third parties — and because arbitrators lack authority to award compensatory or treble damages to an insurer. The Court also rejected the argument that Allstate's own Decision Point Review Plans independently compel arbitration, finding those plan provisions no broader than AICRA's own arbitration clause. Notably, the Court expressly disagreed with the Third Circuit's contrary holding in GEICO v. Mt. Prospect Chiropractic Center, 98 F.4th 463 (3d Cir. 2024), concluding it is not bound by that federal interpretation of New Jersey law. Insurers retain the right to pursue IFPA and RICO claims in the Law Division, with a jury trial. For SIU units and NJ insurance carriers, this decision is a significant win: it forecloses defense clinics' primary procedural tool for shunting fraud investigations into limited-scope PIP arbitration, where treble damages, RICO relief, and meaningful discovery were never realistically available. Carriers building cases against fraudulently structured clinics, straw-owned practices, or coordinated billing networks can now proceed with confidence that a well-pleaded IFPA/RICO complaint stays in the Law Division rather than being diverted to arbitration on a motion to compel. Practically, this strengthens SIU's leverage in settlement negotiations, preserves civil discovery tools (subpoenas, depositions, joinder of related corporate entities) critical to unwinding complex ownership and referral schemes, and resolves the split with the Third Circuit in favor of NJ insurers — at least as a matter of state law. Expect increased reliance on IFPA civil actions, rather than PIP arbitration demands, as SIU's primary enforcement vehicle going forward.

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

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.