Case Law Update July 2020
Florida Supreme Court
Florida Workers’ Compensation Joint Underwriting Association, Inc. v. American Residuals and Talent, Inc., (Fla. 7/6/2020)
The Florida Supreme Court declined to grant certiorari review of the 1st DCA’s 2019 decision. That case held that American Residuals & Talent was an employer under the “similar agent” provision of 440.02(16)(a), Fla. Stat., which states an employer as “every person carrying on any employment … [and] includes employment agencies, employee leasing companies, and similar agents who provide employees to other persons.” In this case, American Residuals and Talent (ART) requested workers’ compensation coverage from FWCJUA and was denied as FWCJUA claimed that ART operated as an unlicensed employee leasing company. ART provides payroll, obtains state unemployment compensation and workers’ compensation coverage, and files taxes for short-term entertainment productions. ART challenged their denial and instead classified themselves under the “similar agent” provision. The appellant relied on Bolanos v. Workforce Alliance, 23 So. 3d 171 (Fla. 1st DCA 2009), which found that an organization who found an employee a job, but did not pay him for the job, was the not the employer under the “similar agent” provision. The 1st DCA distinguished Bolanos, as ART directly paid the talent they used, even though they did not hire or fire them.
DCA Cases
Medina v. Miami Dade County and Risk Management of Dade County, (Fla. 1st DCA 7/15/20)
Temporary Benefits/PTO and Leave Time
The First DCA reversed a JCC order finding that the full wages received by claimant funded by his personal sick and vacation leave constituted payment of workers’ compensation benefits. Following a compensable knee surgery, the claimant did not receive TPD for two periods, as the E/C had paid “full wages” to the claimant which was docked against his personal sick or leave time. While the E/C argued that this leave time would be reinstated, the adjuster could not confirm that the leave time was actually reinstated by the time of the final hearing. On appeal, the E/C argued that the claimant did not satisfy his burden of proof by (1) failing to introduce evidence detailing the Employer leave policy regarding reinstatement of sick time and (2) failing to prove his use of sick leave or the promised reinstatement of that leave time were in place of workers’ compensation benefits. The Court found those arguments ignored F.S. s. 440.09(1), which requires that “the employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury.” Citing Nolan v. Delta Airlines, 733 So.2d 1076 (Fla. 1st DCA 1999), the Court found that personal leave constitutes an employer-provided benefit that cannot be used to avoid paying workers’ compensation benefits and granted the appellant temporary disability benefits. Click here to view Opinion
LSG Sky Chefs, Inc. and Liberty Mutual Insurance Company v. Santaella (Fla. 1st DCA, 7/20/20)
Misrepresentation/Requisite Evidence
The First DCA affirmed an Order rejecting the E/C’s misrepresentation defenses and awarding the claimant a second psychological opinion evaluation. The Court found that competent, substantial evidence supported the JCC’s findings of medical necessity and affirmed the issue without further comment. The Court affirmed the JCC’s rejection of the fraud defense for the (1) alleged misrepresentation of post-accident earnings and (2) her post-accident physical condition. The claimant testified she would accompany her husband to his job and receive checks from the employer in her name because her husband did not have a bank account. The Court found that the claimant was up front about this situation to the E/C and testified consistently that her husband was the one doing the labor; holding that the claimant lacked the requisite intent necessary to prove fraud because she did not knowingly misrepresent her earnings with the intent to obtain benefits. Further, the Court held that even though the claimant reported these earnings for federal tax purposes, they were exempt from wages required to be reported to the E/C under Fla. Stat. 440.02(28), as the definition only required wages that were both “earned and reported for federal income tax purposes.” The 1st DCA also affirmed the JCC’s finding that the claimant did not misrepresent her medical condition, as the E/C failed to prove the claimant made a false or misleading “oral or written statement” for the purposes of securing worker’s compensation benefits. The E/C relied on surveillance video which allegedly showed inconsistencies with what she told doctors. However, the JCC found the doctors who viewed the video did not think the video sufficiently contradicted the claimant’s statements to them. The DCA also affirmed her statements in deposition regarding her functional ability were not made with the requisite intent to obtain or procure benefits. Click here to view Opinion
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