Briefly Speaking – Case Law Updates (2/3/20)

School District of Indian River County/Ascension Benefits v. Edward Cruce, deceased

First DCA Judges: Thomas, Ray, Wolf                Order date: 11/27/2019

JCC Dietz: Sebastian/Melbourne District          Order date: 7/21/2017

OJCC Case: 16-021570RLD                                   Date of Accident: 1/1/2015

Appellant’s Counsel: Gary M. Schloss                 Appellee’s Counsel: Mark L. Zientz

Appellate Order: Click Here

Briefly: Exposure

Summary: The E/C appealed a finding by the JCC that the injured worker’s death resulted from workplace exposure to cryptococcus neoformans fungus. The injured worker was a groundskeeper who, in the course and scope of his employment, alleged interaction from bird droppings. Some time after this exposure, the injured worker became ill and ultimately died of cryptococcal meningitis. The Claimant’s IME provider noted that crypto coccus spores are present in bird droppings, where they can survive for years, and opined that the deceased’s infection was a direct result of exposure to bird droppings containing high levels of the fungus, but could not identify the actual level of fungus spores causing the illness or the smallest amount necessary to actually cause an infection. The JCC awarded compensability of the death on the basis that the facts were undisputed that the deceased’s exposure level was sufficient to cause his illness despite the fact that place of exposure could not be determined, and opined that the statutory provision requiring exposure be quantifiable could only be applied to other types of mold that require a certain quantity be reached at a critical level to cause illness, where here the fungus in question required exposure to only one fungal spore. The DCA reversed, finding that the fact that the fungus could be present anywhere did not discount other sources of exposure nor the requirement of evidence of the fungus being present at the workplace. The DCA reiterated that F.S. Section 440.09(1) requires the employee to show a causal connection between employment and alleged exposure, and opined that evidence that the fungus is “everywhere,” which was provided at trial, was not clear and convincing evidence to satisfy the burden of proving that the fungus was present at the workplace.

Karen Reynolds v. Anixter Power Solutions & Travelers Insurance Company

First DCA Judges: Wolf, Roberts, Rowe                                Order date: 12/16/2019

JCC Sculco: Orlando District                                                    Order date: 1/8/2019

OJCC Case: 18-013229TWS                                                     Date of Accident: 4/18/2018

Appellant’s Counsel: Nicholas A. Shannin                         Appellee’s Counsel: Eric R. Eide

JCC Order: Click Here

Appellate Order: Click Here

Briefly: Recreational Activity

Summary: The Claimant suffered an injury while attending a bowling event during her paid work shift. The JCC determined the Claimant’s injury was not compensable, finding that the bowling trip was a recreational activity. The DCA reversed, finding the Claimant’s injury to be compensable on the basis that the activity was an expressly required incident of employment and produced a substantial direct benefit to the employer beyond improvement in employee health and morale. Specifically, the DCA looked to the facts that the bowling event was during regular work hours; employees attending the event were paid; the injured worker was not told that she could have remained at work or taken a vacation day rather than attend; and the purpose of the event was to improve morale and discuss goals for the following year. Judge Rowe dissented from the opinion, finding that the JCC correctly labeled the bowling event a recreational activity, and noted that he would affirm the order denying compensability.

Tucker, Jacqueline v. Conduent, Inc. and ESIS

JCC Newman: Tallahassee                                       District Order date: 12/27/2019

OJCC Case: 19-010717JLN                                       Date of Accident: 3/10/2016

Claimant’s Counsel: Mark Belcher                           E/C’s Counsel: Robert B. Griffis

JCC Order: Click Here

Briefly: AWW/TPD

Summary: The Claimant sought adjustment of her AWW to include fringe benefits, specifically “health and welfare benefits” the Employer was required to provide under its Federal government contract, and which were paid to the Claimant in addition to her hourly wage. The JCC determined that the Claimant’s AWW should not be calculated to include these benefits, as they were not included in the definition of “wages” in Florida Statute Section 440.02(28). The Claimant also requested payment of TPD benefits for a 6 month period following placement at MMI on the basis that she was no longer at MMI per recommendations for further surgical care and assignment of light duty work restrictions by authorized providers. The JCC disagreed for part of the period, as there was no evidence introduced at trial that an authorized medical provider had rescinded MMI despite assigning light duty restrictions. He awarded TPD for part of the requested period on the basis of authorized medical provider, Dr. Gilmore’s testimony that it would be reasonable to say the Claimant was no longer at MMI, even though this was not addressed in medical records, as of the date of a recommendation for more surgery.

Acosta, Jorge v. American Airlines & Sedgwick CMS

JCC Almeyda: Miami District                                 Order date: 1/10/2020

OJCC Case: 11-011061WJH                                        Date of Accident: 2/4/2011

Claimant’s Counsel: Toni Villaverde                        E/C’s Counsel: Michael Hernandez

JCC Order: Click Here

Briefly: Statute of Limitations/Estoppel

Summary: The Claimant sought authorization and payment of an appointment with the authorized provider, which the E/C denied, in relevant part, on the basis that the Statute of Limitations (SOL) had run, as more than a year had passed between the Claimant’s appointments with the authorized provider. The Claimant alleged that the E/C was estopped from asserting a SOL defense, stating that the E/C had failed to mail the initial informational packet with the SOL information 8 years prior, or alternatively, that the Employer/Carrier had to notify the authorized provider of the running of the SOL to avoid the scheduling of another visit. The E/C asserted that the Claimant had knowledge of the SOL based on his deposition testimony, in which he testified that he sees his provider once a year to keep his case open. It was noted that this testimony was given prior to the running of the SOL. In a later deposition following the running of the SOL, the Claimant testified that he was mistaken as to his last date of treatment, and would have attempted treatment earlier to keep his claim open. The JCC found that the Claimant had actual knowledge of SOL and that the E/C had no duty per statute or case law to inform the provider of the SOL running. As such, the claim for reauthorization and payment of the authorized provider was denied on the basis of SOL.