9/23/2025
Editor: Felicia Wymer, Partner, Pensacola Office
Author: Travis Coleman, Junior Partner, Tampa Office
Author: Katie Valley, Associate, Jacksonville Office
Patrick Daniel v. Delta Airlines and Sedgwick CMS
JCC Lewis: Ft. Lauderdale District Order date: 08/12/2025
OJCC Case: 24-008793DAL Date of Accident: 09/23/2018
JCC Order: Click Here
Briefly: PTD
Summary: On September 23, 2018, the claimant sustained a compensable lower back injury in the course and scope of his employment as a baggage handler for the employer. The claimant was placed at MMI on August 8, 2023, with a 5% impairment rating. On November 8, 2024, the claimant filed a petition for benefits requesting permanent total disability benefits from November 8, 2024, to the present and continuing; permanent total supplemental benefits from November 8, 2024, to the present and continuing; and penalties, interest, costs, and attorney’s fees. The E/C asserted that the claimant was capable of performing at least sedentary work within a 50-mile radius of his home. The claimant underwent a Functional Capacity Evaluation that stated that the claimant could lift from floor to waist up to 90 pounds occasionally and 50 pounds frequently; lift overhead up to 30 pounds occasionally and 15 pounds frequently; carry up to 85 pounds occasionally and 50 pounds frequently; and push and pull up to 85 pounds occasionally and 150 pounds frequently. His authorized treated sports medicine specialist, Dr. Bastoky, opined that his restrictions were those listed in the FCE. Dr. Ray, the claimant’s IME, confirmed that the claimant’s permanent work restrictions were those in the FCE. While the claimant stated that he was unable to sit or stand for prolonged periods of time, Dr. Bastoky opined that he only required the ability to change positions throughout the day. The JCC found that the claimant was not patently, medically totally disabled or unable to engage in at least part-time, sedentary employment within a 50-mile radius of his home due to his physical limitations. The E/C also asserted that the claimant had failed to mitigate his damages because he did not perform an exhaustive job search. The claimant testified that he had been applying for jobs since February 2025, but that he did not seriously begin looking for work until after his vocational interview on May 16, 2025. The claimant stated that he applied for 5-10 jobs per week, but that he stopped looking because he became frustrated. The JCC found that the claimant’s efforts did not amount to an “exhaustive” search. The E/C also asserted that the claimant was not entitled to PTD, as they retained a substantial earning capacity, and there was no industrial condition or injury that was the MCC of any lack of earning capacity or indemnity. The E/C’s vocational expert testified that based on the claimant’s FCE, he was capable of performing very heavy work, and that there were many unskilled jobs available within the restrictions identified in the FCE which the claimant could perform. The JCC accepted the unrefuted testimony, and ultimately denied the claimant’s claim for PTD, supplemental benefits, and PICA.
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Lamont Roscoe v. S&A Hauling Hilliard, LLC
First DCA Judges: Roberts, Long, Tanenbaum Order date: 8/20/2025
JCC Holley: Jacksonville District Order date: 12/10/2021
OJCC Case: 20-002072 Date of Accident: 01/13/2020
JCC Order: Click Here
Appellate Order: Click Here
Briefly: TPD, Income Tax and AWW
Summary: On January 13, 2020, the claimant sustained a compensable injury in a one-person motor vehicle accident while working as a 1099 subcontractor/truck driver. The employer did not have workers compensation insurance. The claimant had worked for the employer for two weeks at the time of the accident. The claimant sought payment of temporary partial disability from January 13, 2020, to the present and continuing, and penalties, interest, costs, and attorney’s fees. While the employer did not initially accept responsibility for the accident, Amelia Urgent Care was eventually authorized. The claimant treated there under Dr. Atkinson on October 8, 2020, October 22, 2020, and November 5, 2020. The claimant was originally given restrictions of no lifting, pushing, pulling and/or carrying over 15 pounds with the left hand/arm; no reaching with the left hand/arm while doing any lifting, pushing, pulling and/or carrying – keeping left elbow at side. On October 22, 2020, the claimant underwent removal of a foreign body (small piece of glass) from his upper arm. His work restrictions were adjusted to allow for a slightly heavier load. On November 5, 2020, the claimant was placed on work restrictions through November 19, 2020, when another appointment was scheduled. He was not placed at MMI. The E/C asserted that the claimant abandoned medical care after three visits to the authorized treating physician and had not sought care since November 5, 2020. Further, the E/C asserted that the claimant had not been placed on work restrictions. The claimant stated that he did not return to Dr. Atkinson because he had to pay for his medical care himself, and that he ceased going once he started getting the medical bills. At his last appointment, Dr. Atkinson had ordered an MRI, which was never authorized. The JCC rejected the E/C’s defense, as the employer could not answer why the claimant was receiving medical bills, and why the MRI was never authorized. Therefore, the claimant was not deemed medically noncompliant.
Further, the E/C stated that the claimant’s inability to maintain gainful employment was unrelated to the compensable accident. The E/C also asserted that TPD was not owed, as the Claimant’s loss of income was unrelated to an on-the-job accident during the course and scope of his employment. Additionally, the Claimant was offered to return to work by the Employer shortly after his accident but failed to do so. The JCC found that there was insufficient evidence to support the Employer’s defense that “the Claimant’s inability to maintain gainful employment is unrelated to the compensable January 2020 date of accident.” The JCC also found that there was no evidence that demonstrated that the Claimant was ever actually offered a specific job or work by the Employer within the Claimant’s work restrictions. Thus, there was never a refusal of an offer of suitable employment. The JCC held that the claimant would be entitled to TPD from October 8, 2020, to present, which was the first documented medical evidence of work restrictions being assigned. As the Claimant was not provided a MRI and was being charged for the Amelia Urgent Care, the JCC opined that his failure to return was reasonable and justifiable such that TPD benefits would continue to run.
On the note of AWW, for the two weeks the Claimant worked, he earned $910.00 and $1,190.00, which averages to $1,050.00, which was based on 13 and 17 loads for the respective weeks multiplied by $70.00. There was no similar employee. Because the Claimant was hired as a 1099 driver, the Employer did not withhold any taxes from either of these paychecks. The Claimant did not pay any taxes on this amount received as well. Case law and statutory law generally state that a claimant’s AWW cannot be based on income that has not been reported for federal tax purposes. Despite the JCC awarding TPD to the claimant, it was determined that since he did not pay any taxes on the compensation he received from the employer, his AWW was $0.00, so no TPD, penalties, and/or interest would be owed at that time. Had he pain taxes on his earnings, his AWW would have been calculated to $1,050.00. The claim for attorney’s fees was subsequently denied, and jurisdiction was reserved to determine taxable costs.
On August 20, 2025, the First DCA affirmed to the JCC’s decision.
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Vazquez Morgan v. School Board of Volusia County, Florida
JCC Jacobs: Orlando District Order date: 08/22/2025
OJCC Case: 25-000423JEJ Date of Accident: 02/06/2023
JCC Order: Click Here
Briefly: Calculation AWW
Summary: On February 6, 2023, the claimant, a full time schoolteacher, sustained a compensable injury while trying to break up a fight between students. The claimant sought determination of the correct average weekly wage and compensation rate. The claimant asserted that she did not work “substantially the whole of the thirteen weeks” preceding the accident, and that the appropriate method is her contract of hire, which would yield an average weekly wage of $1,672.20. The E/C originally asserted that the thirteen-week wage statement supports a base average weekly wage of $1,517.78. However, they asserted for the first time in their trial memorandum, that the evidence of actual wages earned during the thirteen weeks prior to the accident support an average weekly wage of $1,390.40. While the claimant argued that she had not worked the “substantially the whole of the thirteen weeks” preceding the accident, she stated that her time off was due to Christmas break, Thanksgiving break, three days in January 2023 due to an illness and two days in November 2022 for doctors’ appointments. The claimant agreed that it was “customary” having certain days off during the school year. She testified that she worked her normal hours unless she used sick or personal time. Per 440.12(2)(a), the term “during substantially the whole of 13 weeks” shall be deemed to mean during not less than 75 percent of the total customary hours of employment within such period considered as a whole. It was confirmed by the E/C and the claimant that she had worked at least 75% of her customary hours. The JCC rejected the claimant’s position that because schools were closed for 14 days, and the claimant used an additional 48 hours of personal time, amounted to “not working substantially the whole of the thirteen weeks”. The JCC noted that the thirteen-week wage statement was complete, detailed, and unambiguous, and clearly calculated her AWW to $1,517.78. In the E/C’s trial memorandum, however, the E/C asserted for the first time that there were inaccuracies on the wage statement which made it inconsistent with the information in the employer’s system. They requested the average weekly wage be set at $1,319.40. The claimant did not object to this testimony or change in position. The JCC denied the claimant’s request to increase the AWW, and accepted $1,319.40 as the new AWW.
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Jimmy Cannon v. State of Florida Work Camp/Foresty Camps & Road Prisons
JCC Newman: Tallahassee District Order date: 8/28/2025
OJCC Case: 08-025912JLN Date of Accident: 8/6/2007
JCC Order: Click Here
Briefly: Indemnity After PTD Expires
Summary: The Claimant filed a Petition for Benefits requesting TPD from January 23, 2025, through February 4, 2025, and TTD from February 5, 2025, and continuing. The Employer/Carrier denied indemnity benefits to the 80-year-old Claimant as he was paid PTD from September 29, 2008 through July 2, 2020 – his 75th birthday – and thus has received all indemnity benefits to which he was entitled under the 2007 workers’ compensation statute. The Claimant was accepted as permanently and totally disabled as of September 29, 2008. In 2020, Claimant’s PTD benefits were cut off, and the Claimant began receiving medical treatment from Dr. Hedstrom, a board-certified neurosurgeon. Dr. Hedstrom recommended urgent surgery to address the disc degeneration to adjacent levels from the original injury. The DWC-25 from the first evaluation indicated that the Claimant was on a no work status. Surgery was performed in August 2020. In July 2021 the Claimant was placed at MMI. Through 2023 the Claimant remained under the care of Dr. Hedstrom and a pain management physician, who recommended the Claimant for lumbar epidural steroid injections for continued right foot and lower leg pain. The Claimant returned in December 2024 to Dr. Hedstrom. After examination, Dr. Hedstrom determined that the Claimant again developed adjacent-level instability at the level above his prior fusion. Surgery was performed on February 5, 2025. During the course of treatment with Dr. Hedstrom, the doctor testified that it would have been difficult for the Claimant to return to work in any capacity. During the hearing, Counsel for the Employer/Carrier argued that there was no evidence that the Claimant’s compensable injuries had improved enough for him to have been rehabilitated and established any level of earning capacity which would then make him eligible for temporary disability benefits. The Claimant had not been employed or otherwise engaged in any work since being accepted as PTD, and has not returned to work since turning 75. Finding that the Claimant remained permanently and totally disabled during his treatment with Dr. Hedstrom and there was no major change to his work status as a result of her recommendation that the Claimant undergo surgery, indemnity was denied.
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Daniel Murphy v. Polk County BCC & CRM
First DCA Judges: Tanenbaum, Sculco, McLin Order date: 9/3/2025
JCC Anthony: Tampa District Order date: 2/22/2023
OJCC Case: 15-026264BJA, 17-000735BJA Date of Accident: 7/10/2015
JCC Order: Click Here
DCA Order: Click Here
Briefly: Statute of Limitations
Summary: The question the DCA was tasked with answering was whether a Claimant’s initial PFB, as a legal matter, remains pending even though he voluntarily dismissed the requested benefits, while leaving attorney’s fees and costs open. Section 440.19 bars the filing of any PFB beyond two years from when the employee became aware that he suffered an accidental work-caused injury. A pending, legally sufficient PFB filed within that two-year period tolls the statutes running. On September 10, 2016, the Claimant alleged a right knee injury as he stepped out of a garbage truck. The initial PFB was filed on January 11, 2017, seeking compensability, indemnity, medical treatment, and PICA. The Employer denied compensability and entitlement to indemnity/medical. On July 17, 2017, the Claimant voluntarily dismissed without prejudice but reserved on attorney’s fees and cost. At the time of this dismissal, no other PFB was pending. On May 28, 2019, the Claimant filed a second PFB regarding the same date of accident, requesting PTD and PICA. The Employer denied the benefits and asserted a statute of limitation defense. Later, in November 2019, the Employer/Carrier filed a motion for the Claimant to file a Verified Motion for Attorney’s Fees and Costs pertaining to the January 11, 2017, PFB. The Claimant failed to file the motion, and the JCC dismissed the remaining demand for fees and costs on April 29, 2020, with the May 28, 2019, PFB still pending. On September 25, 2020, a third PFB was filed requesting medical benefits. Employer again responded with a statute of limitations defense. On April 14, 2021, the Claimant voluntarily dismissed the May and September PFBs, indicating that all benefits were resolved. Again, Claimant reserved on attorney’s fees and costs. The Claimant then filed a fourth PFB on July 14, 2021, requesting compensability, indemnity, and medical benefits. The JCC dismissed the fourth and final PFB on August 18, 2022, based on the statute of limitations, barring any claim for the September 2016 accident.
The DCA has previously stated that when a Claimant files multiple PFBs for the same date of accident, as long as at least one petition is pending at all times between the filing of the first petition and the hearing on the last petition filed, the voluntary dismissal of an earlier, timely filed PFB does not render the later-filed PFBs untimely. If there is a period of time when no PFB is pending, the limitation statute is not tolled during the period that the dismissed action was pending; rather, the statute will run as if the dismissed action had never been filed. In the instant matter, the Claimant filed his second PFB more than two years after the date of accident, so it would be time barred unless the first PFB remained pending. The Claimant argued that the first PFB was not fully dismissed because the demand for fees was still pending. The DCA has previously held in American Airlines Group v. Lopez, that a reservation on fees is not a provision of medical care nor the payment of indemnity benefits, and thus does not toll the Statute. Here, the DCA addresses the effect, if any, on the timeliness of subsequently filed PFBs. In their ruling, the DCA found when the Claimant dismissed the January 2017 PFB, there was never going to be a resolution or disposition of a claim for benefits that would give rise to an entitlement to the fee being demanded. A demand for fees under section 440.34 is “collateral” to a PFBs claim for benefits and fee entitlement cannot be determined until the main claims have been tried and resolved. Finkelstein v. N. Broward Hosp. Dist. 484 So. 2d 1241, 1243 (Fla. 1986). As the dismissal of the January 2017 PFB was not taken in furtherance of a settlement, and there was no adjudication of any benefits requested, the fee demand remained ancillary and collateral, but to a no-longer-extant claim for benefits. Accordingly, there was no tolling benefit from that PFB, making the next PFB filed over two years after the date of accident time barred.
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