Case Law Update February 2020
HR Law Cases
JCC Jacobs (Miami)(Tony Amelio) – Denied adjustment of AWW. Claimant testified he worked for Employer as laborer and received paychecks from Southeast Personnel Leasing. Claimant shot himself in the leg with a nail gun and his claim was accepted as compensable. Claimant underwent treatment and indemnity benefits were paid using an AWW OF $181.54. Claimant did not present evidence that the hours reflected in the wage statement were incorrect. Claimant alleged that A&J paid him $400.00 cash each week, in addition to the paycheck from Southeast. Claimant testified he reported the extra earnings to the IRS but could not recall his accountant’s name or how he arrived at the number claimed in his taxes. JCC found the Claimant to lack credibility (in part based on eyewitness testimony of dancing post-accident which the claimant denied) and found the Claimant could not meet his burden of providing his AWW should be increased to $581.54.
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ZenithIns.Co./One Hospitality, LLCv. Barrizonte Cruz, (Fla. 1st DCA2/12/2020) Attorney Fees/Time Period for Entitlement Bill Rogner/Andy Borah
The DCA affirmed the JCC’s Order finding entitlement to attorney fees and costs. The claimant filed her PFB on 8/22/18 after 5 p.m. After an initial response denied the claim on 8/29/18, the E/C filed a subsequent response on Monday, 9/24/18, rescinding the denial, paying benefits, but denying entitlement to attorney fees. In denying fee entitlement, the E/C relied on Rule 60Q-6.108(1)(e) that the petition was deemed received the next business day (8/23/18) since e-filed after 5:00pm and Rule 60Q-6.109 that the last day to provide the requested benefits to avoid fee entitlement was 9/24/18 since the 30th day fell on Saturday, 9/22/18. At issue was whether, as the E/C argued, the Q rules (1) resulted in a filing of the PFB on 8/23/18, and (2) whether, since the 30th day would have fallen on a weekend, thus making the response on 8/24/18, the next business day, timely. The DCA held that the Q rules could be applied in determining when the E/C received the petition where the 30 day countdown would begin; however, the 1st DCA determined that the Q rules could not be applied in extending the 30 day calendar period to respond to the petition to avoid fee entitlement finding that the language of F.S. 440.34(3)(b) (Attorney fees will not attach “until 30 days after the date the carrier or employer, if self-insured, receives the petition”) controlled. This analysis similarly appeared in prior rulings in Demandreo (procedural rules cannot alter or amend substantive right to costs) and Hinzman (Q rules cannot extend carrier’s five day calendar period to respond to a one time change request to the fifth business day). The opinion does note that an E/C may defeat attorney fee entitlement without filing a formal response by agreeing to provide the requested benefit, as long as the requested benefit is actually provided within 30 days of the receipt of the PFB.
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DCA Cases
Krysiak v. City of Kissimmee/Toho Water Authority/PGCS, (Fla. 1st DCA 2/13/2020) One-Time Change/TPD and Requisite Evidence of Disqualifying Misconduct
The DCA affirmed the JCC’s ruling that the claimant acquiesced to the E/C selection of a one-time change physician, and thus waived the option to make his own selection. However the DCA reversed the JCC’s denial of TPD based upon alleged misconduct, and remanded for additional findings on that issue. In regard to the one time change issue, the record showed no timely response to the claimant’s 3/6/18 request for a change to Dr. Winters. The E/C responded to a subsequent PFB requesting Dr. Winters as a onetime change, but stated they authorized Dr. Reuss, and set an appointment for 4/20/18. Although claimant’s counsel rejected this option, the claimant subsequently attended at least two appointments with Dr. Reuss, and never saw Winters. The DCA examined the waiver finding, and noted the claimant’s attendance at the Reuss appointments (even though he “had no choice”) contradicted any prior objection. They then note the claimant could have seen Reuss “under protest”, apparently preserving any objection. In relation to misconduct, the DCA noted the E/C has an affirmative burden to show not whether they had cause or right to terminate the employee, but whether the termination was based on acts of misconduct (as described in both Chapter 440 and the Unemployment section of the statutes). Ultimately, the DCA found the E/C did not prove by CSE that the claimant was “under the influence” at work, and thus in violation of substance abuse policies. The opinion notes the E/C’s witness had no first-hand knowledge of the claimant’s actual condition, nor did any E/C witness have first-hand knowledge of any positive testing results. The DCA rejected the JCC finding that the claimant’s failure to object at every stage to hearsay of positive drug test results resulted in waiver. The JCC sustained claimant’s objections on several prior occasions, but ultimately accepted such evidence later on. The DCA found the claimant reasonably relied on prior similar objections, and those objections were preserved for the later instance where the JCC relied on the hearsay results to find misconduct.
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Please note that the DCA Opinions and Merit Orders contained in this newsletter are non-final until 30 days after their rendition. Until that time, they are subject to amendment, vacation, or other action which may remove or alter some or all of the decision. Please contact any HRMCW attorney if you have a question as to the finality and applicability of an Opinion or Order. We endeavor to include any amendments or alterations to Opinions or Orders that may occur at a later date