Category: First DCA

The Claimant’s Burden of Proof; The Causal Connection

A case was decided by the First DCA yesterday that highlights a fundamental concept in Florida workers’ compensation claims: a claimant bears the burden of proof to establish entitlement to benefits and a claimant has the burden to present expert medical evidence establishing a causal connection between the requested benefits and the compensable accident.

florida-work-comp-lawyers-statuteFlorida Statute 440.09(1) sets forth the following: “The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment. The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries.”

The underlined portions of the statute above highlight a claimant’s burden of proof when seeking benefits—and the claimant will fail to carry his or her burden of proof if there is no expert testimony regarding the connection between the work injury and the requested benefit.

In MBM Corp/Sedgwick CMS v. Archer Wilson, the claimant sustained an accident in October of 2010. The claimant was injured when he fell backwards out of the truck he was unloading, landing on asphalt and striking his head and right shoulder. Only a right shoulder injury was diagnosed, and treatment was authorized by the insurance company for that injury.[1] Four years after the accident, the claimant filed a claim for evaluation of his head/neck. The insurance company denied the request, as it felt that only the shoulder was injured in the accident and it felt the accident was not the major contributing cause of the head or neck condition.

In response to the employer/carrier’s denial of the claim, the injured worker presented testimony from the authorized treating physician. The doctor testified it would be reasonable, assuming that Claimant’s neck had been symptomatic since the date of the accident, for Claimant to have an evaluation to obtain a diagnosis for his neck condition.[2] The doctor was not questioned as to whether there was any possible causal relationship between the compensable shoulder injury and the cervical spine complaints.[3] The judge accepted the doctor and claimant’s testimony regarding the neck, and ordered the evaluation. The insurance company appealed the decision and the 1st DCA reversed the judge’s decision yesterday. The First DCA held that the claimant failed to carry his burden of proof by not establishing the head or neck condition is causally related to the accident.

If you have questions regarding work injuries, or the rights of an injured worker in Florida, contact our office to speak with one of our Tampa work injury attorneys. We offer free consultations, and have been protecting the rights of Florida’s injured workers since 1989. 

[1] MBM Corp./Sedgwick CMS v. Archer Wilson (Fla. 1st DCA) 1D15-2398.

[2] Id.

[3] Id.

The full MBM Corp/Sedgwick CMS v. Archer Wilson decision can be found here.

New Case on Cash Advances in Florida Work Comp Cases

A case came down from the First District Court of Appeal today that clarifies a timeliness issue when it comes to requests for cash advances in Florida Work Comp Cases. We have discussed Cash Advances in Florida Workers’ Compensation Cases in detail in a prior blog post. To order an advance, a Judge of Compensation Claims must determine whether the claimant falls into one of three categories:

(1) claimants who have not “returned to the same or equivalent employment with no substantial reduction in wages”;

(2) claimants who have “suffered a substantial loss of earning capacity”; or

(3) claimants who have suffered a “physical impairment. § 440.20(12)(c)(2)

cash advances in Florida Work Comp CasesThis claimant must also show a connection between the indebtedness and the work injury. In the case that came down today, Mathis v. Broward County School Board, Case 15-2342, the judge denied the advance because there was no connection between being behind in bills and the work injury because the claimant was already behind in her bills when she made her request for an advance. The District Court of Appeal held:

“[U]nder the facts presented here, even if Claimant had returned to work immediately after making her request on March 25th, she was still without wages from March 17th through March 25th. Furthermore, Claimant, in reality, continued to experience a loss of wages from March 25th, the date of her request, through April 15th, the date she returned to work. Because Claimant’s indebtedness could only grow worse due to her loss of wages, the requisite nexus exists between the need for an advance and the workplace injury.”[1]

The facts of this case address a common issue. There is a connection between the work injury and loss of income/indebtedness at a time PRIOR to making the request for advance, but NOT AT THE TIME the advance is requested. In my opinion, the DCA has made a common sense connection that the work injury caused the indebtedness, and even if the connection does not exist currently, the work injury certainly started or contributed to the indebtedness the claimant has at the time the request is made and that connection does not immediately end just because the individual goes back to work full duty.

Florida Workers' Compensation Lawyers

If you have questions regarding cash advances in Florida Work Comp Cases or other workers’ compensation matters, please do not hesitate to reach out to one our work comp attorneys in Tampa, Florida. Our firm represents injured workers in Hillsborough and surrounding counties in West Central Florida. The firm has been fighting for the rights of injured workers since 1989; put our experience to work for you by calling for a free consultation at 813-931-1145.

[1] https://edca.1dca.org/DCADocs/2015/2342/152342_DC13_12182015_084554_i.pdf

Florida Workers’ Comp in The Year of the Supreme Court

Christopher Smith had the pleasure of moderating a judicial panel on ethical practices at The Florida Workers’ Comp in the Year of the Supreme Court program presented by Chief Judge Langham and the Office of the Judges of Compensation Claims on Friday, February 6, 2015. The event was held at the First District Court of Appeal in Tallahassee. The panel discussed ethical behavior in the context of attorney’s fees, motion to tax costs, motions to enforce, motion for sanctions, among other topics.

Christopher Smith is pictured here, along with other claimant attorneys and past presidents of Florida Workers’ Advocates who were in attendance at the prorgam, Brian Sganga (top left), Ray Malca (top right), and Rosemary Eure (bottom right).

two dismissal rule in Florida Workers' Compensation

First DCA Clarifies the Two Dismissal Rule

The First DCA issued an opinion recently clarifying the elements necessary for a claim to be subject to the two-dismissal rule applicable to Florida workers’ compensation claims. The two dismissal rule states “a second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or petition for benefits previously the subject of a voluntary dismissal”.[1] This means that upon the second dismissal of a claim, that claim shall be forever barred as a matter of law pursuant to the principles of res judicata.

In Moreno v. Palm Beach County School Board, the claimant filed the following petitions for benefits: 9/14/10 seeking permanent total disability (PTD) from 3/1/08 and continuing based on the claimant’s compensable back injury; 7/28/11 seeking PTD benefits from 6/29/11 and continuing based on the claimant’s compensable back injury, and on 11/12/13 seeking PTD benefits from  4/2/13 (date of psychiatric maximum medical improvement) and continuing based on the combination of the  claimant’s compensable back and psychiatric injuries.[2] The first two claims were voluntarily dismissed. Upon filing of the third petition for PTD, the carrier filed a Motion for Summary Final Order pursuant to 60Q-6.116 (2), seeking to dismiss the 11/12/13PFB based on the two-dismissal rule. In its MSFO, the carrier took the position the claimant was forever barred from filing for PTD benefits based on the two prior dismissals of claims for PTD benefits. The judge agreed with the carrier, and granted the carrier’s motion to dismiss based on principles of res judicata. The First DCA took up the case and ultimately reversed.

The court found the JCC erred by focusing on the specific benefit claimed, and not giving due consideration to the principles of res judicata. Res judicata applies only when all elements are present; whether the facts and evidence necessary to maintain the suit are the same in both actions.[3] The court held that even where the class of benefit is the same, the question remains whether the evidence upon which the petition for benefits is filed is the same. The court held that in the instant case, the claimant’s third petition for PTD was based on his back injury and a compensable psychiatric injury which did not exist at the time of the prior claims. The court held because the facts and evidence required to prove permanent total disability were different in the third claim, the judge erred in concluding the principles of res judicata applied and thereby granting a motion for summary final order. The case was remanded back to the JCC for consideration of the merits of the 11/12/13 PFB seeking PTD benefits.

If you have questions regarding the two-dismissal rule, or any other workers’ compensation matter, please contact our office to speak with a Tampa workers’ compensation attorney immediately. We offer free consultations. Our firm has been representing injured workers in Florida for over 25 years.

[1] F.A.C. 60Q-6.116(2).

[2] Moreno v. Palm Beach County School Board, Case 1D14-1142 (Fla 1st DCA 9/11/14).

[3] See Caron v. Systematic Air Services, 576 So.2d 373 (Fla.1st DCA 1991).