The attorneys at Pyszka, Blackmon, Levy, Mowers & Kelley have encompassed this section to provide any and all of our clients or potential clients with up to date information which, in essence, affects the handling of claims. These legal opinions from the First District Court of Appeal and the Supreme Court of Florida provide you with the latest rulings and practice parameters which allow adequate handling of any existing claims and of course, future claims. Please feel free to contact any one of our attorneys at any of our South Florida locations. We are here to answer all questions that you may have pertaining to the realm of workers’ compensation matters. http://pblmklaw.lawoffice.com/
STEPHEN B. TALPESH V. VILLAGE OF ROYAL PALM BEACH AND FLORIDA MUNICIPAL SELF INSURED AND PALM BEACH COUNTY AND PALM BEACH COUNTY RISK MANAGEMENT
Opinion Filed September 15, 2008
Issue on point: Section 112.18(1), Florida Statutes (2005), also referred to as AHeart/Lung Bill@
Summary: Appellant contents that he was entitled to a presumption that his coronary artery disease was caused by his occupation as a firefighter. The JCC determined that the presumption laid out in Section 112.18(1) did not apply to the Claimant’s coronary artery disease because the Claimant’s pre-employment physical indicated he had high blood pressure. The District Court of Appeal reversed the ruling of the JCC stating that because the pre-employment physical did not reveal heart disease the presumption of Section 112.18(1) must apply.
Importance: The DCA merely reiterates that the firefighter’s presumption switches the burden of proof from the claimant to the employer/carrier, and may be overcome by, as the statute plainly statutes, “competent evidence.” In this case, the JCC never addressed whether the appellees (Employer/Carrier) rebutted the presumption with competent evidence.
FAST TRACT FRAMING, INC., AND TRAVELER’S INDEMNITY COMPANY/SAINT PAUL TRAVELERS V. JOSE CARABALLO, MARONDA HOMES, INC., OF FLORIDA AND AIG CLAIMS SERVICES, INC.
Opinion Filed September 15, 2008
Issue on point: Unreported Wages; Taxes; Calculation of AWW; Section 440.14, Florida Stat.
Summary: In this claim, the Claimant was receiving his pay in cash from his employer. The employer never withheld any tax from the Claimant’s income and the Claimant never reported his income to the IRS. At the onset of the Claim, the Claimant was injured during his employment. He then filed a Petition for Benefits requesting, among other benefits, a determination of his AWW and CR. Appellant raised numerous defenses, including argument that the Claimant had earned no wages as defined by section 440.02(28), Florida Statutes, thus, no benefits were due. The JCC ruled that based on the Claimant’s undisputed testimony, his AWW was $280.00 and ordered Appellant to pay TTD to the Claimant. The DCA revered the ruling of the JCC and found that the legislature did not intent to include unreported income in its definition of wages contained in section 440.02(28), Florida Statute (2007). Thus, the DCA found that unreported income does not qualify as “wages earned and reported for federal income tax purposes” and cannot be the basis for calculating the AWW of a claimant under section 440.14, Florida Statutes.
Importance: If a Claimant is getting paid in cash and the employer is not withholding any federal taxes from his income and the Claimant never reports his income to the IRS, the Claimant has not earned any wages under Workers’ Compensation arena. Thus, the Claimant will have no AWW and any monies not reported to the IRS cannot be used as a basis for calculating the AWW under section 440.14, Florida Statutes.
HOWARD FRANCO V. SCI AT THE PALMER CLUB AT PRESTANCIA AND ZURICH NORTH AMERICA
Opinion Filed August 27, 2008
Issue on point: Attorneys fees and costs; Section 440.34(3)(b), Florida Statutes (2006).
Summary: The JCC relied on improperly relied on the removed discretionary factors in section 440.34(1), Florida Statutes. The DCA ruled that because more than 30 days elapsed from the date the employer/carrier/sa received the petition (the payment was made on the 31st day following the e/sa’s receipt of the petition) and the Claimant successfully achieving acceptance and payment of his claim, all of the statutory requirements of section 440.34(3), Florida Statutes, have been met. The JCC’s order denying entitlement to a fee was reversed and remanded.
Importance: The court noted that a petition is accepted when a payment is made, not when the forms indicating the acceptance are completed. The DCA further noted that if an employer/carrier/sa fails to accept or deny the petition within 14 days of its receipt, the employer/carrier/sa are deemed to have denied the petition.
DENNIS WHITAKER V. NORTH AMERICAN TANK LINES, INC., AND CNA INSURANCE COMPANY
Opinion Filed August 15, 2008
Issue on point: Claimant Voluntary Leaving Employment; TPD benefits.
Summary: In this claim, the Claimant testified that he continued working following his accident, but that he left the employer because he could no longer perform his work due to his injury. The employer raised the defense that the Claimant had voluntarily left his employment. The JCC awarded medical benefits to the Claimant; however, denied the Claimant’s claim for temporary partial disability, finding that the Claimant had “voluntarily left his job.” The DCA ruled that when an employer/carrier raises the affirmative defense of voluntary limitation of income, it is the burden of the employer/carrier of proving that at least one job existed within the Claimant’s restrictions. The DCA ruled, citing Myers v. Hillsborough County School Board, 911 So.2d 851, 852 (Fla. 1st DCA 2005), that the employer/carrier made no showing that there existed a job within the Claimant’s limitations, thus the order was reversed and remanded to the JCC for an award of temporary benefits.
Importance: If Claimant leaves employment because he is saying he cannot adequately perform his job functions, the Employer/Carrier has the burden of proof of showing that there is at least one job that they have for the Claimant within his restrictions.