Kelley Kronenberg - In the Know – Workers’ Compensation September 2021 Edition

IN THE

SEPTEMBER 2021

NOW

WORKERS’ COMPENSATION EDITION IN THIS ISSUE: • Indemnity Benefits • Authorization of Medical Care • Statutory Employer • Toxic Exposure • Misrepresentation • Subsequent Intervening Accident • Compensability • Hindrance to Recovery • Intoxication

EDITOR’S LETTER

WELCOME Joshua T. Higgins, Esq. Editor, and Business Unit Leader/Partner

with me, which is, “When you talk, you are only

When you talk, you are only repeating what you know.

When you listen, you learn something new.

–Dalai Lama

repeating what you know. When you listen, you learn something new.”

I’ve found this quote by the Dalai Lama to be particularly appropriate for dealing with the pandemic on a personal level, while also managing a team of individuals. As a lawyer, I am admittedly a cliché in that I like to talk. Some

The past year-and-a-half, undoubtedly, has been

would say, I like to talk too much. However,

challenging for every individual. Like anything

during the pandemic, I learned that sometimes

else, there are always lessons to be learned

the most effective tool a lawyer can have is

from challenges. Oftentimes, life lessons can

to listen, instead of talking. With my team,

also apply to the practice of law. As a Business

I tried to emphasize listening to the particular

Unit Leader and Partner who manages a team

issues and challenges each team member was

of 8 very different personality types, in addition

experiencing, which led me to be able to connect

to myself, this past year-and-a-half has taught

and empathize with them more. This approach

me that there is not a “one size fits all” approach

was extended to my case handling, where

to management. This, of course, should be self-

telephonic and zoom depositions, mediations,

evident as each individual is different, but for

hearings, and trials removed the theatrics that

myself, it was a lesson I learned even more as

can often come with litigation and enhanced the

the pandemic raged on (and continues to do so).

need to carefully listen to what’s going on.

When I was an undergraduate at the University

Over the next month, I challenge each of you to

at Buffalo, I was fortunate enough to have the

place a greater emphasis on listening, instead of

Dalai Lama come to campus on two separate

talking. As the Dalai Lama points out, doing so

occasions to speak. Although I was interested in

will enable you to learn something new.

the Dalai Lama prior to him coming to the school, I developed an affinity for him subsequent to his campus visits. One quote from him has stuck

TABLE OF CONTENTS INDEMNITY BENEFITS Vicente Calel v. AME Carpentry, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6 OJCC Case No. 19-024543 (FL.Off.Judge Comp.Cl. June 29, 2020)

Jones v. State of Florida, Department of Corrections . . . . . . . . . . . . . . . . . . . . . . . . . 6-7 2021 WL 3197213 (Fla. 1st DCA 2021)

AUTHORIZATION OF MEDICAL CARE Vega v. Xpo Logistics Freight Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8 OJCC Case No. 17-021604MJR (FL.Off.Judge Comp.Cl. June 30, 2021)

STATUTORY EMPLOYER Aguilar v. Double Green Wholesales, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10 OJCC Case No. 21-001239JIJ (FL.Off.Judge Comp.Cl. July 28, 2021)

TOXIC EXPOSURE Gonzalez v. Coastal Care Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-12 OJCC Case No. 19-011283RLY (FL.Off.Judge.Comp.Cl. March 5, 2020)

FLORIDA WORKERS’ COMPENSATION COVID-19 FACTS . . . . . . . . . . . . . . . . . . .

13

MISREPRESENTATION Camacho v. Epic Development & Construction Corp. . . . . . . . . . . . . . . . . . . . . . . . . 14-15 OJCC Case No. 20-016081WWA (FL.Off.Judge.Comp.Cl. June 18, 2021)

SUBSEQUENT INTERVENING ACCIDENT Montolio v. The Robins and Morton Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-16 2021 WL 2416734 (Fla. 1st DCA 2021)

COMPENSABILITY Ramirez v. Publix Super Markets Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-18 OJCC Case No. 21-00138 (FL.Off.Judge.Comp.Cl. June 22, 2021)

HINDRANCE TO RECOVERY City of Miami v. Korostishevski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20 627 So. 2d 1242 (Fla. 1st DCA 1993)

INTOXICATION European Marble Co. v. Robinson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21 885 So. 2d 502 (Fla. 1st DCA 2004)

CONTRIBUTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23 HELPING YOU STAY AHEAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25 AWARDS AND ACCOLADES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27 FIRM OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29

4 | IN THE

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Vicente Calel v. AME Carpentry, Inc. OJCC Case No. 19-024543 (FL.Off.Judge Comp.Cl. June 29, 2020)

KK TAKEAWAY: Although the legal standard holds that a claim for Temporary Total Disability Benefits cannot be denied if the Claimant was not informed he was released to work, the same is not true for a claim for Temporary Partial Disability Benefits.

BACKGROUND: In this claim, the Claimant had injured his eye during the course and scope of his employment. The Claimant treated at Bascom Palmer and underwent eye surgery in July of 2019. After a period of not working, the Claimant returned to work for the insured, but was ultimately terminated at the end of August 2019. Following his termination, the Claimant worked inconsistent odd jobs, but no evidence of subsequent employment was admitted.

The Employer/Carrier stipulated to payment of TPD from July 20, 2019 through October 29, 2019. Thus, at issue during the Final Hearing was payment of TPD from October 30, 2019 through the present and continuing.

The Claimant argued that he was under work restrictions because he was never told he was cleared for full duty. The Claimant did not provide a legal basis for his argument, but JCC Hedler noted that the First DCA has repeatedly held that “a Claimant cannot be denied TTD without evidence he was informed that he was released to work or should IN THE

NOW | 5

have known that he was released to work.”

However, JCC Hedler also noted that he could not find any case law to support the same argument in the context of Temporary Partial Disability benefits. Further, while JCC Hedler saw some logic in extending the holding to apply to Temporary Partial Disability benefits as well, he admitted that the JCC did not have the legal authority to do so. On appeal, the First DCA affirmed JCC’s Hedler’s decision.

Accordingly, a claim for Temporary Partial Disability benefits may be denied even if the Claimant was not informed that he was released to work.

6 | IN THE

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Jones v. State of Florida, Department of Corrections 2021 WL 3197213 (Fla. 1st DCA 2021)

KK TAKEAWAY: While there is typically a six-month statutory cap on temporary indemnity benefits for mental injuries after the Claimant has achieved physical MMI, this statutory cap does not apply to Claimants who have not received permanent impairment benefits.

BACKGROUND:

period that commenced more than six (6)

On July 29, 2021, the First DCA issued an

months after she had achieved physical MMI,

opinion addressing the question of whether

the JCC concluded that she was not entitled

indemnity benefits for mental injuries are

to temporary indemnity.

limited to six months after the Claimant has

The First DCA disagreed with the JCC’s

reached physical MMI if the Claimant had

decision. While the JCC had correctly found

also not received any permanent impairment

that temporary indemnity benefits are limited

benefits.

to six months from the time the Claimant

By way of background, on January 7, 2019,

achieves physical MMI (as opposed to being

the Claimant, who worked at a correctional

a ‘bank’ of time), the First DCA advised, citing

facility, was attacked by an inmate who placed

to its previous decision in W.G. Roe & Sons

her in a choke hold, and as a result, inflicted

v. Razo-Guevara, 999 So. 2d 708 (Fla. 1st

neck and throat injuries on the Claimant.

DCA 2008), that the statutory cap outlined

Within two weeks of the date of accident, the

in § 440.093(3), Fla. Stat. does not apply to a

Claimant achieved physical Maximum Medical

Claimant who has not been paid permanent

Improvement (MMI) with a zero percent (0%)

impairment benefits. Accordingly, the First

Permanent Impairment Rating. Thus, she was

DCA reversed the JCC’s decision.

not entitled to any permanent impairment benefits. After achieving physical MMI, the Claimant continued to treat with a psychiatrist who also referred her for psychological care.

The Claimant was diagnosed with acute stress and post-traumatic stress disorder.

Vega v. Xpo Logistics Freight Inc OJCC Case No. 17-021604MJR (FL.Off.Judge Comp.Cl. June 30, 2021)

The Claimant had been on a no-work status until the Claimant’s psychologist placed the

KK TAKEAWAY:

Claimant at psychological MMI on November

Because an Employer/Carrier’s obligation

11, 2019. However, the psychologist deferred

under § 440.13(2)(a), Fla. Stat. is to furnish

to the Claimant’s psychiatrist regarding

medical treatment to the Claimant, simply

psychiatric work restrictions and psychiatric

providing authorization for medical treatment

MMI. The Employer/Carrier then ceased paying indemnity benefits, which instigated

is not enough to satisfy the statute.

BACKGROUND:

the underlying claim. found

On June 30, 2021, JCC Michael Ring of the

“temporary indemnity benefits for mental

Fort Lauderdale District issued an opinion

injuries are limited to six calendar months after

determining whether the Employer/Carrier

a claimant reaches physical MMI pursuant

had satisfied its statutory obligation to furnish

to section 440.093(3).” Thus, because the

medical care when it sent an authorization

Claimant’s request for indemnity was for a

letter to the physician’s office via fax.

In

the

hearing

below,

the

JCC

IN THE

NOW | 7

By way of background, the Claimant was

two (2) authorization letters to Medi-Station,

injured in 2016 when a trailer door struck him in

but aside from that, she had no other contact

the forehead, causing him to fall to the ground

with Dr. Sanchez or Medi-Station.

face first. He initially treated at Palmetto

Dr. Sanchez’ testimony, he indicated that he

General Hospital and obtained follow-up care

was not aware of any letters of authorization,

at Concentra. After requesting a one-time

and if they had been sent, he would not have

change in physician, Dr. Carlos Sanchez from

refused care.

Medi-Station Urgent Care was authorized.

The Employer/Carrier argued that because

The Claimant treated with Dr. Sanchez on

they had provided letters of authorization to

February 14, 2020. When the Claimant sought

Medi-Station, they had satisfied their statutory

follow-up care following his February 14, 2020

obligation under § 440.13(2)(a), Fla. Stat. to

appointment, he was advised by the Medi-

furnish medically necessary treatment for

Station staff that Dr. Sanchez had released

the Claimant. However, JCC Ring disagreed

him from care. Consequently, the Claimant

and specifically stated “the circumstances

filed a Petition for Benefits, requesting

surrounding this matter provide a prime

follow-up treatment with Dr. Sanchez. The

example of why simply sending a fax does not

Employer/Carrier filed a Response to Petition

meet the requirements of F.S.440.13(2)(a).”

for Benefits, indicating that Dr. Sanchez had

Thus, because the Employer/Carrier did not

been and continued to be authorized. Further,

“accomplish authorization of Dr. Sanchez,” the

the Claimant could present to Dr. Sanchez

“Employer/Carrier did not furnish medically

as a walk-in, as a letter of authorization had

necessary treatment to the injured worker.”

already been sent. When the adjuster was

Accordingly, the Claimant’s request for future

deposed, she indicated that she had faxed

treatment with Dr. Sanchez was granted.

8 | IN THE

NOW

During

Fun Spot

Aguilar v. Double Green Wholesales, Inc. OJCC Case No. 21-001239JIJ (FL.Off.Judge Comp.Cl. July 28, 2021)

KK TAKEAWAY: To be deemed a ‘statutory employer’ – which would impose liability on an entity for the workers’ compensation coverage of its subcontractor’s employees – an entity

BACKGROUND: On July 28, 2021, JCC Jacobs of the Miami District issued an opinion determining whether a produce wholesaler was the statutory employer of the Claimant, who worked for a refrigerated delivery service.

By way of background, the Claimant injured his left wrist and low back in the course and scope of his employment when he fell while delivering produce. The Claimant was employed by Oscar Delivery Corp., a delivery

must (i) be a contractor, meaning the entity’s

service that primarily delivers refrigerated

primary obligation arises from a contract, and

items. At the time of the accident, the Claimant

(ii) the entity must have delegated part of its

was completing a delivery to Double Green,

contractual obligations to the subcontractor.

a fruit and vegetable produce wholesaler.

IN THE

NOW | 9

Double Green had procured an air shipment of

party that gives rise to the entity’s contractual

produce from a company named Coloratura

obligations. Next, the entity, or ‘contractor,’

that specializes in delivery of produce from

must delegate part of its obligations to the

Central America to Florida. To pick up the

‘subcontractor.’ Then, the contractor and

delivery from the airport, Double Green had

subcontractor’s employees are said to “be

hired Oscar Delivery Corp.

employed in one and the same business or

However, Oscar Delivery Corp. did not have workers’ compensation insurance, so the Claimant argued that Double Green was his statutory employer, and therefore, would be

responsible

for

furnishing

compensation benefits.

workers’

In support of his

argument, the Claimant contended that Double Green had a contractual obligation to Coloratura to maintain and sell produce as part of a consignment arrangement and that Double Green had sublet part of that obligation to Oscar Delivery Corp.

JCC Jacobs rejected this argument.

establishment,” making the contractor liable for the workers’ compensation coverage of the subcontractor’s employees (except when the subcontractor has already obtained workers’ compensation coverage).

JCC Jacobs could not find that there was any kind of ‘consignment’ arrangement between Coloratura

and

Double

Green,

despite

Double Green’s logistics manager testifying that “everything we do is consignment.”

Specifically, the Claimant had not established that the arrangement met any legal definition of a consignment arrangement. Thus, there

He

was no evidence that Double Green “had a

explained that for an entity to be a statutory

contractual obligation to a third party to pick

employer there must first be a contractual

up the produce from the airport.” Accordingly,

obligation between the entity and a third

Double Green did not meet the definition of a ‘contractor,’ and thus could not be deemed the Claimant’s statutory employer.

Gonzalez v. Coastal Care Services, Inc OJCC Case No. 19-011283RLY (FL.Off.Judge.Comp.Cl. March 5, 2020)

KK TAKEAWAY: While the burden is on the Claimant to prove a toxic exposure claim by clear and convincing evidence, if an Employer/Carrier can show that the levels of the toxic substance were too 10 | IN THE

NOW

low to cause the alleged injuries and/or that there is no causal link between the Claimant’s alleged injuries and the toxic substance, the Employer/Carrier will likely prevail.

BACKGROUND: On March 5, 2020, JCC Young of the Tampa District issued an opinion that was later affirmed by the First DCA on June 14, 2021. In the opinion, JCC Young determined whether a Claimant had endured either toxic exposure or repetitive trauma from her alleged exposure to mold in the workplace.

By way of background, the Claimant began working for the Employer in July of 2015 and reported that she almost immediately started feeling unwell, which she attributed to mold and dirty carpet. On April 27, 2018, the Claimant testified that she smelled a bad odor, had a metal taste in her mouth, and had a headache.

To alleviate her symptoms, she hired a carpet cleaner to clean the carpets of the workplace and spray Microban.

In May of 2018, the Claimant hired a mold assessor, Mr. Dunn, to inspect the building and take air samples. Mr. Dunn concluded that there was “elevated mold growth” based on his visual observation of moisture stains, despite not actually testing the stains themselves. However, through air testing, Mr. Dunn determined that there was no “amplification” of the mold (i.e., mold was not in the air).

At the Final Hearing, the Claimant also presented

was left in the ceiling, which came back positive for mold. She also determined, based on pictures from Mr. Dunn’s assessment, that there was visual mold in the building. She also explained that Mr. Dunn’s inspection was compromised, as the carpets had been cleaned and sprayed with Microban only a few days before the inspection.

Ultimately though, because Ms. Pearlman’s mold testing was done so long after the Claimant had left the workplace, JCC Young found her testimony to be largely irrelevant.

testimony of Ms. Pearlman, another mold

The Claimant contended that her alleged

inspector. Ms. Pearlman had inspected the

exposure to the mold had caused extensive health

Claimant’s workplace for mold approximately

problems, including, inter alia, a compromised

six (6) months after the Claimant had been

immune system, behavioral

terminated. Ms. Pearlman testified that she had

teeth, no enamel, bladder and kidney pain,

done a swab test on a piece of fiberglass that

difficulty thinking, rashes and scarring, numbness

issues, decaying

IN THE

NOW | 11

the employee was exposed, can cause the injury or disease sustained by the employee.

Initially, the Claimant argued that her injuries arose from a single date of accident – April 27, 2018 – but later argued that her injuries were caused by repetitive trauma and that the JCC should apply the Festa v. Teleflex, Inc. standard (382 So. 2d 122 (Fla. 1st DCA 1980)). However, JCC Young noted that in the First DCA’s recent decision in City of Titusville v. Taylor, 288 So. 3d 731 (Fla. 1st DCA 2019), another toxic exposure case, the Court stated that the “alternative causation test in Festa could not be substituted for the more exacting standard imposed by Fla. Stat. Section 440.02(1).” in her extremities, nosebleeds, and greying hair.

Additionally, JCC Young noted that the First DCA

The Claimant’s IME, Dr. Feldman, who was located

has held that § 440.02(1) “cannot be satisfied

in Jerusalem, Israel and had therefore never

with evidence that only minimal exposure to a

physically examined the Claimant, testified that

toxic substance can cause harm and that it is

because the Claimant would feel better once she

‘possible’ that a toxic substance was present in

left the workplace, she must have been exposed

the workplace.” Further, § 440.02(1) requires

to something at the workplace. On the other

“1) Proof of an ‘actual exposure’ (ingestion

hand, the Employer/Carrier’s IME, Dr. McCluskey,

or absorption); 2) The ‘levels to which one is

who spent six (6) hours with the Claimant and

exposed’; and 3) That such ‘levels are capable of

reviewed 4,500 pages of medical records, opined

causing injury or disability.’”

that the Claimant had several diagnoses, none of which were toxic mold syndrome or related to any possible mold exposure.

JCC Young accepted the testimony of the Employer/Carrier’s IME, Dr. McCluskey, and found that the testimony of the Claimant’s IME,

With respect to toxic exposure, JCC Young cited

Dr. Feldman lacked any evidentiary support.

to Florida Statute § 440.02(1), which reads:

Further, JCC Young found that (i) there was no

An injury or disease caused by exposure

medical evidence supporting the Claimant’s

to a toxic substance, including, but not

alleged injuries and (ii) all testimony presented

limited to, fungus or mold, is not an injury

supported a finding that the levels of mold were

by accident arising out of the employment

extremely low “and did not establish that the

unless there is clear and convincing

Claimant’s symptoms could result from that low

evidence establishing that exposure to a

level of exposure.” Accordingly, compensability

specific substance, at the levels to which

was denied.

12 | IN THE

NOW

FLORIDA WORKERS’ COMPENSATION

COVID-19 FACTS 2020 Total Workers’ Compensation Cases: • In 2020, there were 69,302 total workers’ compensation claims in the state of Florida.

By way of comparison, there were 62,497 total workers’ compensation claims in 2019.

2020 COVID-19 Claims: • Of the workers’ compensation claims discussed above, 34,736 claims were COVID-19 claims. Thus, more than half of the workers’ compensation claims in 2020 were for COVID-19.

The Cost of COVID-19 Claims: • In 2020, $92,782,952 was paid out for COVID-19 workers’ compensation claims, which represents 6.8% of the total $1,364,846,267 paid out for all workers’ compensation claims throughout the entire year.

• Additionally, the average cost paid out per COVID-19 claim is $2,371, with 94.1% of claims resulting in a payment of $0 to $4,999.

• By way of comparison, the average cost of all closed compensable claims, excluding COVID-19 claims, for the period from January 2020 through June 2021, was $16,256.

2021 Facts: • As of June 30, 2021, there have been 44,613 total COVID-19 workers’ compensation claims since January 2020.

• Of those total COVID-19 claims, 26,157 have been accepted as compensable, and 18,456 have been denied.

• Additionally, the number of new COVID-19 claims per month has, for the most part, continually trended downward since January 2021, with 4,169 claims in January, 1,898 claims in February, 1,336 claims in March, 1,427 claims in April, 749 claims in May, and 298 claims in June.

• Keeping right in line with 2020 statistics, the total cost of COVID-19 workers’ compensation benefits in 2021 represents 6.9% of the overall amount of paid benefits for all workers’ compensation claims.

IN THE

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Camacho v. Epic Development & Construction Corp.

BACKGROUND: On June 18, 2021, JCC Anderson of the

OJCC Case No. 20-016081WWA

Dayton

(FL.Off.Judge Comp.Cl. June 18, 2021)

Compensation Order determining whether a

KK TAKEAWAY:

Beach

District

issued

a

Final

Claimant’s workers’ compensation benefits should be terminated due to an alleged

When determining whether the Employer/

misrepresentation he made at the hospital on

Carrier has a valid misrepresentation defense,

the date of the accident.

it is important to ensure, in accordance

By way of background, the Claimant had

with § 440.09(4)(a), Fla. Stat., that any

fallen off a slippery roof on his first day on the

misrepresentation the Claimant may have

job. In an interesting turn of events, when the

made was made for the purpose of securing

Claimant was in the hospital, he reported that

workers’ compensation benefits.

the accident had occurred at home, rather

14 | IN THE

NOW

than at the job site, because he was worried that the workers’ compensation carrier might deny treatment and he did not want there to be any delay in care. argued that the Claimant’s misrepresentation regarding the location of the accident should bar the Claimant from receiving any future compensation

2021 WL 2416734 (FLA. 1st DCA 2021)

At the Final Hearing, the Employer/Carrier

workers’

Montolio v. The Robins and Morton Group

benefits.

JCC

KK TAKEAWAY: When a subsequent intervening accident occurs while a Claimant is seemingly traveling to or from an authorized medical appointment,

Anderson acknowledged that § 440.105(4)

it is important to parse out the various legs of

(b), Fla. Stat. “makes it unlawful to make

the Claimant’s trip to accurately determine

a misrepresentation for the purpose of

whether the Claimant was actually traveling

obtaining ‘or denying’ any benefit or payment

to or from an appointment.

under Chapter 440.” (emphasis added).

However, JCC Anderson also found that §

BACKGROUND:

440.09(4)(a), Fla. Stat. – the section of Chapter

On June 29, 2020, JCC Havers of the Miami

440 “that gives a Judge of Compensation

District issued a Final Compensation Order

Claims authority to deny benefits based on

that was later affirmed by the First DCA on

misrepresentation” – does not extend such

June 14, 2021. The Order addressed the

authority to claims where the Claimant had

question of whether a subsequent intervening

indeed made a misrepresentation, but the

accident was compensable when the Claimant

purpose of which was for a reason other than to secure workers’ compensation benefits.

Here, in a situation where the purpose of the misrepresentation was in fact the opposite (i.e., to specifically avoid securing workers’ compensation

benefits),

JCC

Anderson

found that § 440.09(4)(a), Fla. Stat. did not apply. Accordingly, the Employer/Carrier’s affirmative defense of misrepresentation was rejected, and the accident was found to be compensable.

IN THE

NOW | 15

was struck by a motor vehicle while in transit

the purpose of receiving remedial treatment

to his designated pick-up location for an

for the compensable injury.”

authorized medical appointment.

At the Final Hearing, the parties disagreed as

The Claimant had been involved in two

to whether the Claimant had begun traveling

separate compensable accidents in 2017, for

to

which he was receiving authorized medical

when he left the breakfast restaurant.

care, including physical therapy for post-

The Employer/Carrier contended that the

surgery rehabilitation. For his appointments,

Claimant was traveling back to his home, not

the Claimant was typically picked up by a

to his appointment, and therefore, the travel

driver at either the hotel where he was living

to the appointment had not commenced.

or at a restaurant five (5) to six (6) blocks from

The Claimant argued that when he left the

the hotel where he would often eat breakfast

restaurant, he had begun his trip to the

because the hotel did not have a working

physical therapy appointment, because “he

kitchen.

was traveling towards his pick-up location at

On the day of the subject accident, the Claimant

was

scheduled

to

be

picked

up at 10:15 a.m. for his physical therapy appointment. He asked the driver to pick him up at the breakfast restaurant, but the driver insisted that the Claimant be ready at the

his

authorized

medical

appointment

the time of the accident.”

JCC Havers agreed with the Employer/Carrier and found that the Claimant was “traveling back home to wait for his transportation” when the accident occurred. Accordingly, the intervening accident was not compensable.

designated pick-up location at the hotel at the scheduled time. The Claimant took a trolley to breakfast that morning, and while he was waiting on the trolley to take him back to the hotel, he was struck by a motor vehicle. From this accident, “the Claimant sustained a left elbow laceration, fractures to his left tibia,

Ramirez v. Publix Super Markets Inc. OJCC Case No. 21-00138

non-displaced fractures of L2-L3 transverse

(Fl.Off.Judge Comp.Cl. June 22, 2021)

processes, and head injuries.”

KK TAKEAWAY:

With respect to subsequent intervening

When determining whether an injury arose

accidents, JCC Havers cited Florida Statute

out of the Claimant’s employment, the

§ 440.092(5), which reads “Injuries caused

inquiry is not whether the injury was caused

by a subsequent intervening accident arising

by something that was entirely unique to the

from an outside agency which are the direct

Claimant’s employment that would not have

and natural consequence of the original injury

otherwise occurred outside of the Claimant’s

are not compensable unless suffered while

employment under any circumstances, but

traveling to or from a health care provider for

rather, whether there is a connection between

16 | IN THE

NOW

the Claimant’s employment and the injury

manager and adjuster, as he believed there

and/or whether the Claimant’s employment

may have been communication issues due

created an increased risk of the injury.

to Claimant’s difficulty recalling the correct English words in certain instances.

BACKGROUND: On June 22, 2021, JCC Arthur of the Lakeland District

issued

an

opinion

determining

whether a Claimant’s injury in the parking lot of his workplace qualified as an injury “arising out of” his employment.

The Claimant testified that he was rushing to work one morning so that he would not be tardy when he exited his car in the employee parking lot and injured his right foot on the curb. Both the store manager and the adjuster testified that the Claimant had previously described his accident as having occurred

JCC Arthur noted that the Florida Supreme Court has defined ‘arising out of’ as “originating in some risk connected with employment or flowing as a natural consequence from the employment.” Given that the Claimant was in the designated area for employees in the employer’s parking lot when the injury occurred, JCC Arthur found that the Claimant’s injury on the curb was connected to his employment. He further advised that even if the Claimant’s mechanism of injury was as described by the store manager and

on flat ground, rather than on a curb. JCC

adjuster, the analysis would remain the same.

Arthur accepted the Claimant’s version of

The Employer/Carrier, citing to Sedgwick

the mechanism of injury over that of the store

CMS v. Valcourt-Williams, 271 So. 3d 1133 IN THE

NOW | 17

(Fla. 1st DCA 2019), argued that the Claimant

injury in Valcourt was entirely personal in

“must show a risk greater on the employer’s

nature.

premises than in his non-work life, or that

argument to its logical end would mean that

there was a risk unique to his employment.”

a grocery store employee who injured their

JCC Arthur was not persuaded and found

shoulder while stocking milk would not have

Valcourt-Williams

distinguishable

a compensable accident because people also

from the facts of the present case (i.e., the

lift gallons of milk at home, or if someone fell

Claimant in Valcourt-Williams tripped over her

off a ladder at work, their accident would not

dog while working from home). Further, JCC

be compensable because people also use

Arthur opined that application of the ruling in

ladders while off duty.

Valcourt-Williams to the present case “would

Accordingly, JCC Arthur found that the

to

be

lead to many, if not most, accidents occurring in the course and scope of employment being found non-compensable, exposing employers to broader tort liability from injuries to their employees,” as the risk that caused the

Fun Spot

18 | IN THE

NOW

To follow the Employer/Carrier’s

Claimant’s accident did arise out of his employment and advised that the ruling in Valcourt-Williams should only be applied in narrow circumstances, so as not to create “an unworkable arbitrary system.”

City of Miami v. Korostishevski

disease specialist. The liver disease specialist

627 So. 2d 1242

diagnosed the Claimant with a left inguinal

(Fla. 1st DCA 1993).

hernia and liver cancer.

KK TAKEAWAY: When a condition that is otherwise not compensable is acting as a hindrance to the Claimant’s recovery, treatment of the condition is the responsibility of the Employer/ Carrier, but only to the extent necessary to effectively treat the compensable injury.

BACKGROUND: In this case, the Claimant, a tennis court maintenance worker, was lifting a bag of tennis court clay when he suddenly felt pain

The Claimant’s

hernia was not immediately treated, but approximately six (6) months after the accident, the hernia became symptomatic due to an accumulation of fluid around the Claimant’s abdomen, with such fluid retention being directly attributed to the Claimant’s liver cancer. The Claimant’s surgeon, Dr. Unger, opined that surgical repair of the hernia was needed, but first, he would need to reduce the accumulation of abdominal fluid, as such fluid would have slowed the Claimant’s recovery after surgery and could cause recurrence of

in his abdomen. The Claimant was advised by

the hernia.

his employer to consult with his family doctor

At the Final Hearing, the JCC found that both

who ultimately referred the Claimant to a liver

conditions – the liver cancer and the hernia IN THE

NOW | 19

– were compensable. Alternatively, the JCC found that even if the liver cancer was not

European Marble Co. v. Robinson

compensable, the Employer/Carrier would still

885 So. 2d 502

be responsible for treatment of the cancer, as

(Fla. 1st DCA 2004)

it was a hindrance to the Claimant’s ability to

KK TAKEAWAY:

recover from the compensable condition of the hernia.

On appeal, the First DCA found that the JCC erred in finding that the Claimant’s liver cancer was compensable.

Nevertheless, the First

DCA did agree with the JCC’s determination that, regardless of compensability, “treatment of a condition not shown to be causally related to a compensable injury is the responsibility

When denying a claim under § 440.09(3) because

the

Claimant

was

under

the

influence of drugs at the time of the accident, it is important that the procedural rules of Chapter 59A-24 of the Administrative Code are followed. Specifically, drug tests (except tests for alcohol levels) are to be performed on urine specimens only.

of the E/C if one of the primary purposes of

BACKGROUND:

the treatment is also removal of a hindrance

This claim ensued when the Claimant had

to recovery from the compensable accident.”

However, the First DCA explained that the actual

interference

with

the

claimant’s

recovery was the effects of the Claimant’s cancer

(specifically,

the

accumulation

of abdominal fluid) as opposed to the cancer itself. Thus, the First DCA assigned responsibility with the employer/carrier “only for that treatment necessary to effectively treat the compensable hernia condition.”

In other words, the Employer/Carrier was not obligated to treat the claimant’s cancer throughout the entire continuum of care.

fallen off of a crate and started having a seizure. When his blood was tested at the hospital, it was determined that his bloodalcohol level was 0.053 percent and would have exceeded .08 percent at the time of the accident.

Because of the Claimant’s blood-alcohol level, the Employer/Carrier denied the claim under § 440.09(3), Fla. Stat., which states that “compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician.”

However, the

medical technologist who took the claimant’s blood explained that because the claimant’s blood had been drawn for medical reasons, as opposed to legal reasons, the chain of custody procedures required for blood specimens drawn for legal reasons were not followed.

Thus, the First DCA found that the “record demonstrat[ed] a lack of compliance with 20 | IN THE

NOW

the procedures” enumerated in the Florida Administrative Code, Ch. 59A-24, and therefore, the Employer/Carrier could not rely upon the presumption in § 440.09(7)(b).

Specifically, the First DCA explained that the presumption “does not arise as the result of a positive confirmation drug test (the First DCA includes alcohol in the definition of “drug”) using a medically-drawn sample unless the Florida Administrative Code rules required by section 440.09(7)(d) are followed.”

Administrative Code, to which the First DCA was referring in Robinson, requires that urine be “used for the initial test for all drugs except alcohol and for the confirmation for all drugs except alcohol.” Thus, because the First DCA has explained that Ch. 59A-24 of the Florida Administrative Code must be followed in order for the Employer/Carrier to rely on the presumption set forth in § 440.09(7)(b), urine is the only specimen that may be used for drug testing (except testing for alcohol).

While the First DCA did not specifically address the admissibility of drug tests performed on urine specimens versus blood specimens, Ch. 59A-24 of the Florida

IN THE

NOW | 21

MEET THE

CONTRIBUTORS of Kelley Kronenberg designated as the host for the meetings in South Florida, and he is the legal advisor

Joshua T. Higgins, Esq.

to the Safety Alliance for Excellence (SAFE) since its

Editor and Business Unit Leader/Partner

inception. He assists his clients daily in all aspects of

Email Joshua T. Higgins

claims handling, both prior to and after litigation has begun, and has handled complex matters through trial on numerous occasions, with a high percentage of success.

Joshua Higgins is a Business Unit Leader and Partner at Kelley Kronenberg where he focuses his practice on Workers’ Compensation defense. He has previous experience handling employment law matters, OSHA, Police Professional Litigation, Correctional Healthcare, and Civil Rights claims.

The team that Joshua leads comprises of nine (9) people (attorneys, paralegals, and legal assistants), which collectively have over 90 years’ experience handling workers’ compensation matters in Florida.

Joshua handles workers’ compensation claims for a wide array of industries, for a clientele that ranges from multi-billion companies to small employers.

One of the primary industries Joshua handles workers’ compensation claims for is the construction industry. He represents general contractors and subcontractors of all sizes, and is enmeshed in the construction industry of South Florida. He is an active member of the Construction Association of South Florida (CASF), where he has been on the

Joshua is a popular and frequent writer and presenter on various workers’ compensation issues, both in Florida and on a national level. For his success and reputation, he has been named a Florida Super Lawyers Rising star for 2020 and 2021 (bestowed on less than 2.5% of attorneys in Florida), was named a 2020 and 2021 Top Lawyer in workers’ compensation

by Fort Lauderdale Illustrated (one of only two defense attorneys on the list), and was named a 2022 Best Lawyers in America: Ones to Watch by U.S. News & World Report. Joshua is also rated AV Preeminent by Martindale-Hubbell, based upon peer reviews, which indicates that he has achieved the highest professional and ethical standards and is the highest rating a lawyer can receive.

Prior to joining the firm, Joshua worked as an Assistant State Attorney at the State Attorney’s Office, 17th Judicial Circuit, in both the felony trial unit and county court division. While there, Joshua tried more than 30 bench trials and 22 jury trials, with his

Young Leaders Committee for several years (and

last trial featured on local Fox news.

the firm is the legal advisor to), he is involved in the

During law school at Nova Southeastern University,

Associated General Contractors (AGC), for which he

Joshua served for two years as the Chairperson of

was instrumental in having the Fort Lauderdale office

Administration for the Moot Court Honor Society,

a Staff Member for the Inter-American Center for

Prior to entering law school, Joshua obtained his

Human Rights, and the Secretary for the National

undergraduate degree magna cum laude from the

Security and Law Society. He received a perfect

State University of New York at Buffalo, where he

score from the Chief Justice in the first round of the

was selected for induction into the Phi Beta Kappa

ABA National Appellate Advocacy Competition, and

Society, received English Departmental Honors, and

placed in the top 8 out of more than 125 students in

was listed in Who’s Who Among American College

the Feinrider Moot Court Competition. Further, Joshua

Students. Additionally, Joshua was chosen as a

was one of 40 law students selected nationwide as a

Renaissance Scholar, an award bestowed on less than

summer fellow for the Florida Bar Foundation, which

4% of graduates that year (only 82 students out of a

resulted in him working at Coast to Coast Legal Aid of

class size of more than 2500), for those exhibiting

South Florida doing foreclosure defense for indigent

scholarly excellence in at least two widely disparate

elderly citizens.

areas of study.

Kirstin Grice, Esq.

Brandon T. Haas, Esq.

Associate Attorney

Associate Attorney

Email Kirstin Grice

Email Brandon Haas

Kirstin Grice is an Attorney at Kelley Kronenberg

Brandon Haas is an Attorney at Kelley Kronenberg

where she assists in handling matters related to

where he assists in handling matters related to

Workers’ Compensation Defense.

Workers’ Compensation.

Prior to joining Kelley Kronenberg, Kirstin worked

Brandon Haas is an Attorney in the firm’s Fort

as a Senior Associate for a healthcare valuation

Lauderdale office where he assists in handling

firm, where her specific focus was compensation

matters related to Workers’ Compensation.

valuation.

Prior to joining the firm, he gained experience in

Kirstin received her Bachelor of Science degree

Insurance Defense Litigation while working as a Law

in Business Administration from Florida State

Clerk for a boutique Fort Lauderdale firm.

University. She then went on to receive her Juris

Brandon received his Bachelor of Science degree

Doctor degree, cum laude, from Florida State

from the University of Central Florida and went on

University College of Law. While attending law school,

to earn his Juris Doctor degree, summa cum laude,

Kirstin was an articles editor on the Florida State

from Nova Southeastern University Shepard Broad

University Law Review and a teaching assistant for a legal writing and research class. She also earned the Distinguished Pro Bono Service Award, was a Florida Bar Scholarship recipient, and was on the Dean’s List for 3 semesters.

College of Law where he regularly made the Dean’s List and was both a Junior Associate and Executive Editor for Nova Law Review. While in law school, he was a Legal Intern for the Broward County Environmental and Consumer Protection Division and served as a Teaching Assistant.

IN THE

NOW | 23

HELPING YOU

STAY AHEAD BLOGS Business Workplace Health & Safety Checklist: What Should Employers Expect with New Delta Variant Cases Rising?

By: Meg Bentley. As the number of COVID-19 cases declined last spring, Illinois businesses reopened their doors […]

CLICK TO READ MORE

Mental Health in the Workplace – Post Pandemic Panic By: Amy Siegel Oran Florida workers’ compensation law does not cover purely psychological trauma; the emotional condition must be brought […]

CLICK TO READ MORE

Movies Speak to Me in Legalese By: Amy Siegel Oran. We all have our favorite movies, a top-five list of films you’ve seen so many times you […]

CLICK TO READ MORE

20 Years of Wisdom in 5 Bullets: Tips for Law Graduates By: Amy Siegel Oran. On this day, 20 years ago, I was worrying about law school finals and the upcoming […]

CLICK TO READ MORE

6 Key Points to Defend, Manage, and Settle Catastrophic Claims

By Amy Siegel Oran I recently had the pleasure of presenting on the topic of defending, managing, […]

CLICK TO READ MORE

24 | IN THE

NOW

WEBINARS COVID-19 in 2021 Kelley Kronenberg Partners Adam Kemper and Joshua Higgins present COVID-19 in 2021 with Principal Partner/ Chief Financial Officer, Heath Eskalyo as the moderator. The webinar, COVID-19 in 2021, provides updates on the latest applicable workplace guidelines and for practice.

CLICK TO WATCH

PUBLICATIONS Don’t Be A Discovery Dinosaur HR Florida Newswire

Telecommuting Employees and the Potential for Workers’ Compensation Claims

Amy Siegel Oran

HR Florida Newswire

CLICK TO READ MORE

Indira Marin CLICK TO READ MORE

Guest column: Florida’s minimum wage increase raises workers’ compensation cost

What The Telecommuting Trend Could Mean for Florida Workers’ Comp Claims

Tampa Bay Business Journal

Insurance Journal

Amy Siegel Oran

Indira Marin

CLICK TO READ MORE

CLICK TO READ MORE

Yes, employees required to get vaccinated for COVID-19 can file a workers’ compensation claim for vaccine adverse effects

Does Workers’ Comp Cover an Employee’s Reaction to a COVID-19 Vaccine?

Verify

SHRM

Joshua Higgins

Joshua Higgins

CLICK TO READ MORE

CLICK TO READ MORE

IN THE

NOW | 25

AWARDS AND

ACCOLADES FIRM AWARDS Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:

2021

Best Midsize Law Firms To Work For

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Best Law Firms”

Ranked amongst the “Largest Law Firms”

Named as a “Business of the Year” and “Top 100 Private Companies”

Best Multi-Practice Business Law Firm – USA

2021 “Diversity Team” winner

Ranked amongst the “Largest Law Firms”

26 | IN THE

Fastest-Growing Private Companies in America

NOW

WC ATTORNEY AWARDS

Martindale Hubbell AV Preeminent Rating

Best Lawyers in America: Ones to Watch

Karen M. Gilmartin, Raymond L. Grant, Joshua T. Higgins, Steven L. Scharf, Amy Siegel Oran

Joshua T. Higgins Amy Siegel Oran

Florida Super Lawyers “Rising Stars”

South Florida Legal Guide “Top Lawyers”

Joshua T. Higgins

Amy Siegel Oran Karen Gilmartin

Illinois Super Lawyers “Rising Stars” Julianna Walo Executive Women of the Palm Beaches Foundation Women in Leadership Amy Siegel Oran

Fort Lauderdale Illustrated “Top Lawyer” Joshua T. Higgins

WOMEN IN THE LAW Best Lawyers “Women in the Law”

Girl Scouts of Southeast Florida, Emerald Award, “Risk Taker” Amy Siegel Oran

Amy Siegel Oran IN THE

NOW | 27

A Firm Built on Relationships KELLEY KRONENBERG IS A MULTI-PRACTICE BUSINESS LAW FIRM.

with over

400

Employees

more than

175 Attorneys

the convenience of

12

Locations

Founded in 1980, the firm is one of the fastest-growing law firms in Florida and amongst the largest in the U.S. The firm serves all types and sizes of public and private companies, including small businesses and individuals nationwide.

OUR

OFFICES CHICAGO

NEW YORK NEW JERSEY

ATLANTA JACKSONVILLE DAYTONA ORLANDO

15

WEST PALM BEACH TALLAHASSEE FORT LAUDERDALE

OFFICES

NEW ORLEANS

TAMPA MIAMI LAKES NAPLES

MIAMI

CHICAGO

DAYTONA

FORT LAUDERDALE

JACKSONVILLE

10360 W. State Road 84 Fort Lauderdale, FL 33324 Phone: (954) 370-9970

10245 Centurion Parkway N, Suite 300 Jacksonville, FL 32256 Phone: (954) 370-9970

MIAMI

MIAMI LAKES

15100 NW 67th Avenue, Suite 204 Miami Lakes, FL 33014 Phone: (305) 826-7260

NAPLES

1111 Brickell Avenue, Suite 1900 Miami, FL 33131 Phone: (305) 503-0850

NEW ORLEANS

ORLANDO

TALLAHASSEE

150 N. Michigan Avenue, Suite 800 Chicago, IL 60601 Phone: (312) 216-8828

20 North Orange Avenue, Suite 1207 Orlando, FL 32801 Phone: (407) 648-9450

1112 Riverside Drive Daytona Beach, FL 32117 Phone: (754) 888-5437

6267 Old Water Road, Suite 202 Tallahassee, FL 32312 Phone: (850) 577-1301

1421 Pine Ridge Road, Unit 120 Naples, FL 34103 Phone: (954) 370-9970

TAMPA

1511 North Westshore Blvd., Suite 400 Tampa, FL 33607 Phone: (813) 223-1697

201 St. Charles Ave, Suite 2500 New Orleans, LA 70170 Phone: (732) 547-7907

WEST PALM BEACH

1475 Centrepark Blvd., Suite 275 West Palm Beach, FL 33401 Phone: (561) 684-5956

BY APPOINTMENT ONLY ATLANTA

1100 Peachtree Street NE, Suite 200 Atlanta, GA 30309 Phone: (404) 990-4972

NEW JERSEY

51 John F. Kennedy Parkway First Floor West Short Hills, NJ 07078 Phone: (908) 403-8174

NEW YORK CITY

One Liberty Plaza 165 Broadway 23rd Floor, Suite 2374 New York, NY 10006 Phone: (800) 484-4381

IN THE

NOW | 29

WWW.KKLAW.COM | 800.484.4381 C h i c a g o | D a y t o n a | F o r t L a u d e r d a l e | J a c k s o n v i l l e | M i a m i | M i a m i L a k e s N a p l e s | N e w O r l e a n s | O r l a n d o | Ta l l a h a s s e e | Ta m p a | W e s t P a l m B e a c h