Case Law Update October 2022
Updated 11-1-22
| Bonhomme v. Staff Team Hotels/Frank Winston Crum Ins., ___ So.3d ___(Fla. 1st DCA 10/12/2022) Compensability/Notice (Rogers Turner / trial & Bill Rogner / appeal) – Oral Argument at 12/21 WCCI Comp Conference In a 13-page Opinion, the DCA affirmed the JCC’s denial of compensability, and found they could affirm on a lack of timely notice, as well as the claimant’s failure to sustain his burden to provide evidence of causation or injury. The claimant alleged injury at work while lifting mattresses. However, ER visits over the ensuing several months effectively lacked any evidence to support that contention. After filing a PFB, the claimant provided testimony indicating that he knew at the time he carried the mattresses he injured his neck, but alternately argued he was unable to realize the probable compensable nature of the injury, until an ER doctor mentioned a potential cervical strain, almost two months later. The JCC excused this late notice and the case proceeded. Ultimately, EMA Dr. Scott considered the claimant’s medical condition and determined there was insufficient evidence to support a work-related lumbar or cervical injury. As to notice, the DCA found that the JCC improperly applied the “reasonable man” providing “some satisfactory reason” standard to excuse late notice, as that standard derives from case law pre-dating the 1994 amendments. The decision effectively eliminates pre-1994 case law from the notice analysis. The DCA then affirmed the JCC’s finding that no clear and convincing evidence existed on the contrary to reject Dr. Scott’s opinions. The DCA rejected the claimant’s Due Process claims out of hand. A concurring opinion noted the claimant’s failure to timely report the accident within 30 days, without applicable exception, compelled affirming the denial. Click here to view Opinion Weaver v. Volusia County, ___So.3d___(Fla.5th DCA 10/21/22) First Responder Cancer Presumption /Retroactive Application The Claimant was a 13-year firefighter who retired in 2012 and was diagnosed with ovarian cancer in 2017. She attributes the diagnosis to work but did not seek WC benefits. After the legislature passed section 112.1816 (providing previously unavailable benefits to firefighters who meet certain criteria and are diagnosed with certain cancers, including ovarian cancer. These benefits include a one-time payment of $25,000 and full coverage of the firefighter’s cancer treatment.), the Claimant requested these benefits from the County. After the County declined, the Claimant filed a dec action in circuit court, arguing the statute applied retroactively. The Circuit Court granted Summary Judgment to the County, finding the statute applied prospectively. Weaver argued it applied retroactively because it created a new remedy by the statement that it is an “alternative to pursuing WC benefits”. The DCA found this argument missed the mark, as this statute does not simply alter the means by which firefighters obtain already-existing workers’ compensation benefits. To the contrary, the statute carves out a limited class of firefighters and provides them with benefits that were previously unavailable to them, all while relieving that class of firefighters of the obligations associated with receiving benefits under chapter 440. They held this to be a substantive change in law. They also rejected the argument the law was remedial because it eases requirements for a limited class of firefighters diagnosed with cancer to get additional benefits. Click here to view Order City of Orlando/Corvel v. Moore, ___So.2d___(Fla.1st DCA 10/26/22) First Responder Presumption/Expert Medical Advisor The Claimant sought IBs for is compensable Hypertension. The JCC appointed an EMA (Borzack) to resolve conflicts in the impairment ratings of Drs. Kakkar (10%), Parikh (50%) and Nocero (0%). The E/C objected to the EMA arguing that Parikh did not correctly apply the 1996 guides. The JCC found even assuming that was so, a conflict existed. The JCC accepted Borzack’s 43% PIR (neither party deposed him) and awarded IBs. The DCA rejected the E/C argument that the JCC improperly appointed an EMA, finding sufficient conflict. They further rejected the E/C argument the JCC failed to address their Daubert objection to Borzack’s opinions, finding that although Daubert was mentioned in an amendment to the Pre-Trial, it was not reaffirmed at trial or on rehearing. Further, the E/C did not depose the EMA. Lastly, the DCA analyzed the argument that the JCC erred in accepting Borzack’s opinion, where he relied solely on an echocardiogram instead of an ECG in assigning Claimant a Class 3 impairment rating for his left ventricular hypertrophy (“LVH”). They rejected the dissent’s (Tannenbaum) argument that the Guides require the assessment by ECG but noted the JCC is required to afford the EMA the presumption of correctness, record evidence supported the finding of LVH and there was no clear and convincing evidence to reject the opinion. Click here to view Order |