Briefly Speaking November 2023 Editor: Felicia Wymer Authors: Libby Nelson & Travis Coleman

Dorothy and Merlanda Altesse Guardians of Employee Yolande Altesse v. Ventura Services/Golden Glades Opco LLC/Liberty Insurance Company and Benchmark Administrators

JCC Weiss:   Ft. Myers District                                                      Order date:   10/12/2023

OJCC Case:   22-014026JAW                                                          Date of Accident:    5/29/2023

JCC Order:   Click Here

Briefly:  Compensability – Going and Coming, Course and Scope.

Summary:    The claimant was injured on May 29, 2022, when she was going to park her car but instead drove across the lot and through a fence into a lake. The claimant drowned and died but was resuscitated; ultimately, she sustained a traumatic brain injury due to oxygen deprivation. A claim for workers’ compensation benefits was filed and the claim was denied on the basis of the coming and going rule and no injury in the course and scope of employment. At trial, Claimant argued two exceptions to the going and coming rule, special hazard, and premises. The JCC disagreed with both and found that the claimant was not in the course and scope of her employment at the time of her accident. As the lake was not on a “normal and customary route used by the employee as a means of entry to and exit from the employee’s place of work” and the Claimant had no reason to go near the lake in her employment, it was not a special hazard. As for the premises argument, the facts showed that the lake was not on the employer’s premises, however the claimant attempted to argue that the striking of the fence on the employer’s premises caused an injury. In the PFBs filed, however, the claimant never alleged an injury due to striking the fence, rather her injury was due to oxygen deprivation. The JCC found that neither exception applied and that the Claimant was not in the course and scope of her employment at the time of accident.

Shanika Jones v. Publix Super Markets Inc/Publix Risk Management

First DCA Judges: Rowe, Kelsey, Tanenbaum                         Order date: 10/24/2023

JCC Arthur:   Lakeland District                                                    Order date:   5/11/2022

OJCC Case:   21-022337RAA                                                           Date of Accident:    9/6/2020

Appellate Order: Click Here

JCC Order: Click Here

Briefly:  Indemnity – TPD/TTD Entitlement/Termination for Cause.

Summary:    The claimant was injured in September 2020 and was placed on work restrictions which the employer accommodated at the preinjury hours and pay. The claimant racked up disciplinary actions until exceeding “level 4,” which resulted in termination. The claimant was late to work multiple times, failed to follow company procedures in product labeling multiple times, and failed to make mandated equipment checks although stating that she did. These infractions spanned a year, many of which occurred after her accident and return to work. The Claimant argued that she was singled out for discipline actions but made no other arguments regarding the injury being the cause of her lost wages. As the claimant continued earning her preinjury wage in the light duty position, and the loss of income arose from her termination for violating company rules, the claimant failed to show a causal connection between her reduction in income and her work injury. On appeal by the claimant, the 1st DCA Affirmed Per Curiam.

Jonathan Lopez Del Rio v. Marksman Security Corporation/PMA Insurance Company

JCC Medina-Shore: Miami District                                                             Order date: 11/2/2023

OJCC Case: 20-001828SMS                                                                            Date of Accident: 11/02/2019

JCC Order: Click Here

Briefly: Temporary Partial Disability / Misconduct

Summary: The Claimant, a security guard for the employer, suffered injuries to his hands, right leg, and back in a compensable work accident. The Claimant returned to work post-accident and was paid full wages through 12/30/2020, when the Claimant was terminated after being found asleep in his car during a lunch break. At the time of his hiring, the Claimant electronically signed the Employer’s Policy Agreement which required immediate termination if the Claimant slept while on duty or at his post at any time, including breaks. Although the Claimant met his burden of proof for the requested TPD benefits, the Court did not find him a credible witness. The Court found that the Claimant’s disobedience to the Employer’s policy against sleeping on the job as a security guard was sufficiently egregious to qualify as misconduct under Section 440.02(18)(a &b). TBD benefits were denied.

Rose Powell v. City of Miami Gardens/PGCS

First DCA Judges: Thomas, Winokur, Long                                             Order date: 11/1/2023

JCC Anderson: Miami District                                                                      Order date: June 9, 2022

OJCC Case: 18-024064WWA                                                                          Date of Accident: August 4, 2018

Appellate Order: Click Here

JCC Order: Click Here

Briefly: Permanent Impairment Benefits

Summary: The Claimant suffered a compensable work injury on August 4, 2018. Despite her injuries, she continued working with the Employer until she retired on November 30, 2021. The Claimant was placed at MMI with a 5% PIR on April 31, 2021. IBs were not paid until November 29, 2021 in response to a PFB filed on November 17, 2021. The Carrier paid ten weeks of IBs as well as penalties and interest at that time. Because the Claimant was earning more than her AWW during the period from April 28 to July 6, 2021, the E/SA reduced the IBs by 50% pursuant to section 440.15(3)(c). The Claimant believed she was due the full value of IBs since they were paid following her retirement. This case presented a novel question of law – whether the 50% reduction in IBs applies only to earnings during the weeks when IBs were “due and payable” or to earnings during the weeks after “entitlement” begins, even if not due and payable during those weeks. The Court concluded that the 50 percent reduction in IBs applies to earnings during the weeks immediately after “entitlement” to IBs begins, even if the IBs are not due and payable during those weeks. The claim for additional IBs was denied. The DCA affirmed.

Christy Siena v. Orange County Fire Rescue/CCMSI

First DCA Judges: Osterhaus, Ray, Winokur                           Order date:  10/25/2023

JCC Pitts:     Orange District                                                           Order date:   3/17/2022

OJCC Case:   21-016957NPP                                                            Date of Accident:    5/11/2021

Appellate Order:   Click Here

JCC Order: Click Here

Briefly:  Death Benefits – Chapter 112 and Chapter 440 (firefighter)  

Summary:    The Claimant is the surviving spouse of a firefighter who died of brain cancer, a diagnosis he received 4/23/2020, and for which the firefighter requested and received benefits under F.S. section 112.1816(2) (medical care and a $25,000.00 payment). The firefighter passed on 5/11/2021. Thereafter, his surviving spouse sought death benefits under both Chapter 112 and Chapter 440. The E/C paid death benefits under Chapter 112, but not the Chapter 440 benefit. At the time of Final Hearing, the only issue for consideration was whether pursuit and obtention of benefits under Chapter 112 barred obtention of death benefits under Chapter 440. The JCC ruled that Chapter 440 death benefits were barred on the grounds that the Claimants had elected their sole remedy of benefits under Chapter 112. On appeal, the DCA found that the statutory language in Chapter 112, specifically benefits “as an alternative to pursuing workers’ compensation benefits under Chapter 440” applied to the benefits specifically listed in Chapter 112 and not to death benefits available elsewhere in Chapter 112, nor to Chapter 440 death benefits. The basis of the decision was that the subsection above is the only provision that explicitly permits firefighters, and not dependents or beneficiaries, to claim medical treatment and a cash payment upon diagnosis and death benefits under Chapter 112 are payable in addition to workers’ compensation per statutory language.