Case Law Update October 2021
Updated 10-8-21
| Cabrera v. Kablelink Communications LLC/Sedgwick, ___ So.3d___ (Fla. 1st DCA 10/6/21) Independent Contractor/Construction Industry The DCA affirmed the JCC’s finding that a residential cable installer was not an employee, but an “independent contractor” and not entitled to benefits. After a serious fall, the claimant sought WC benefits from Kablelink, who denied on the basis of their prior agreement stating he was an independent contractor. The claimant alleged even with that agreement, he was entitled to benefits as an independent contractor engaged in the construction industry under F.S. s. 440.02.(15) (c) 3.;(d)1. Claimant argued his job of installing residential cable qualified as working “in the construction industry.” The statute defines this term as “activities involving…any substantial improvement…in the use of any structure.” The statute allows the Division to establish further codes and rules, which the Division does by incorporating the NCCI Manual’s industry classifications. No prior rule or case discussed whether cable installation qualified as working in the construction industry. Noting that prior DCA cases had analyzed specific jobs and reached different compensability decisions based upon the tasks performed, the DCA found the evidence did not show the claimant’s work involved substantial improvement as defined above. Although the claimant argued it was “pure common sense” that cable substantially improves the use of a building, the DCA found the claimant failed to sustain his burden that the work he performed when injured so qualified. A concurring opinion noted in addition to the majority’s analysis, the claimant must show an arising out of element, and also that his work regularly or consistently was in the construction industry. Click here to view Opinion Shelton v. Pasco Cty. Brd. Of Commissioners/Commercial Risk,___ So.3d___(Fla. 1st DCA 106/21) Duty of JCC to appoint alternate EMA The JCC denied IBs. The DCA affirmed on four of five points but reversed as to the JCC’s failure to appoint an alternate EMA after striking the initial EMA opinion based upon Daubert. The parties previously stipulated that the claimant’s left ventricular hypertrophy (LVH) was compensable and was not at issue for the Merit Hearing. However, the JCC struck the EMA’s opinion and denied all claims, including finding that the LVH was not compensable. The DCA held that under Falk v. Harris Corp, 267 So.3d 578 (Fla. 1st DCA 2019), once the JCC struck the EMA, he had a duty to appoint a successor EMA to determine all previously submitted questions. Although the causal relationship of the LVH was at issue when the JCC appointed the EMA, the parties’ later stipulation as to compensability of the condition was then binding upon the JCC. Click here to view Opinion |