Articles Posted in Workers’ Compensation

alejandro-escamilla-2-300x200As work-life balance is getting harder to maintain, partly due to the ever-evolving technology that is available to access around the clock, I would like to talk about ways of disconnecting to improve your work habits. Being good at resting is an important component in achieving a well-balanced work-life-schedule.

  • Unplug. As work day seems to never end, find a suitable time when you are able to shut your phone off and enjoy the moment, whether it’s with your family, friends or pets.
  • Don’t be a perfectionist. As you get older it’s harder to maintain perfectionist tendencies. It could be very disruptive to your everyday activities.

clean-well-1230060-300x200In a recent decision, Mathis v. Sacred Heart Health Sys., Inc., Florida’s First District Court of Appeal reminded the lower courts that there are indeed limits to workers’ compensation immunity. Indeed, in a brief decision, the First District reversed a trial court order granting summary judgment in favor of a building owner that argued it was entitled to workers’ compensation immunity for injuries sustained by an employee of a cleaning company that had been contracted to provide cleaning services at the building.

The injuries at issue in this case occurred at Nemours Children’s Clinic, which is owned by Sacred Heart Health Systems, Inc. The injured employee worked for Coverall Service Company, which, pursuant to a contract with Sacred Heart, provided cleaning services at Nemours. While cleaning, the employee slipped and fell as a result of alleged negligence on the part of Sacred Heart in maintaining the property in a safe condition. After collecting workers’ compensation benefits, the employee brought a premises liability action against Sacred Heart. Following discovery, Sacred Heart moved for summary judgment, arguing that they were entitled to immunity pursuant to Section 440.11(1) of Florida’s workers’ compensation law. The trial court agreed and granted the defendant’s motion. The employee then brought the current appeal.

Continue reading

plane-and-hanger-1546471-1600x1200-300x225Florida’s Workers’ Compensation Law extends immunity to contractors and subcontractors. As is to be expected, however, in order for such immunity to bar suit in a particular case, the company must fall within the applicable definition of “contractor.” Indeed, many companies may be in relationships that analogize to contract relationships but cannot—despite their best efforts otherwise—have recourse to the Workers’ Compensation Law to immunize themselves for injuries arising from their negligence. The scope of what constitutes a contractor for purposes of the Workers’ Compensation Law was at the heart of a recent decision from Florida’s Second District Court of Appeal, Slora v. Sun ‘n Fun Fly-In, Inc.

The plaintiff in this case was employed by U.S. Security Associates, Inc., a company that provided event security to Sun ‘n Fun Fly-In, Inc., a company that operated an air show near Lakeland, Florida. In order to operate this air show, Sun ‘n Fun was required to obtain certain certificates of waiver from the Federal Aviation Administration (“FAA”). The FAA granted the waivers, which came with various standard and specialized provisions with which Sun ‘n Fun needed to comply, including provisions for security. Sun n’ Fun contracted with U.S. Security to provide these required security measures, and the plaintiff was assigned to provide security during the air show. The plaintiff was working at a security guard shack at Lakeland Regional Airport when a tornado struck. The winds lifted the shack from the ground and deposited it in a ditch. The plaintiff made a workers’ compensation claim through her employer, which maintains workers’ compensation insurance. The claim was settled.

Continue reading

photo_21337_20120125-300x200It is fairly common knowledge that when someone is injured on the job, he is limited in the legal options he has for recovery against his employer. Indeed, Florida’s Workers’ Compensation Law generally prohibits an employee from bringing a negligence suit against his employer. However, the Workers’ Compensation Law is a general bar, not an absolute bar. In fact, Florida’s Third District Court of Appeal recently addressed the limits of one of those exceptions in its recent decision in Moradiellos v. Community Asphalt Corporation, Inc.

Moradiellos arose from the death of an asphalt surveyor who worked for Community Asphalt Corporation. Community Asphalt served as the general contractor of a project to widen the Florida Turnpike. The surveyor’s job was to determine where road markings and traffic lanes should be placed. He worked at nights, and on the night of the accident leading to his death, the survey crew was provided with a rack or portable lights, which were transported along the survey site by a pickup truck. At the time he was injured, the surveyor was working on the northbound lanes and was about 600-700 feet away from the portable lights. The surveyor was under a deactivated high mast light and was working with a flashlight and headlamp. He was hit by a dump truck that had been instructed to go to the worksite.

Instead of following directions to take the southbound lanes and approach the site from the south using the northbound lanes, the driver of the truck reversed backward down the southbound lanes, a violation of company policy. While reversing, the dump truck struck and killed the surveyor, who was facing in the other direction and speaking with a supervisor on a radio at the time of the collision. The surveyor’s widow brought this case as the representative of the surveyor’s estate and sued multiple parties, including Community Asphalt. Community Asphalt moved for summary judgment, arguing that it was entitled to immunity under Florida’s Workers’ Compensation Law. The trial court granted the motion, and the estate appealed the decision.

Continue reading

The indoor ceiling architecture of airport terminal

The indoor ceiling architecture of airport terminal

Workplace injuries are an everyday occurrence. However, injuries in certain workplaces create more legal complications than others. For example, construction activities at a single site are not typically performed by a single entity. Instead, the realization of a construction project often involves the overlapping work of a general contractor and numerous subcontractors. Thus, when a worker is injured, there is often difficulty ascertaining which entities are at fault and, subsequently, what forms of immunity, if any, may apply to their negligence. The dynamics of construction site workplace liability was the subject of a recent decision of Florida’s Fourth District Court of Appeal, Ciceron v. Sunbelt Rentals, Inc.

The plaintiff in Ciceron was an employee of a subcontractor that had been enlisted by the general contractor to perform demolition work as part of the renovation of a large retail store. The general contractor had also recruited electrical subcontracting and wielding subcontracting services. The defendant, Sunbelt Rentals, Inc., rented scissor lifts to the electrical subcontractor and the wielding subcontractor per a separate rental agreement. On the day of his accident, the plaintiff in this case was working at the construction site. One of the scissor lifts became inoperable. A Sunbelt employee came to the site to remove the lift but encountered difficulty loading the lift onto a truck. The Sunbelt employee asked the plaintiff and several of his coworkers for assistance with the task. The Sunbelt employee instructed them on how to position the lift, but during the course of loading the plaintiff suffered severe bodily injuries that ultimately resulted in the amputation of his leg. The plaintiff brought suit against Sunbelt, asserting various theories of negligence and loss of consortium. Following discovery, Sunbelt moved for summary judgment, arguing that the plaintiff had already received workers’ compensation benefits for his injuries and that the claims were barred by horizontal immunity under Florida’s Workers’ Compensation Laws. The trial court granted the motion for summary judgment, and the plaintiff appealed.

Continue reading

photo_310_20051101Although workers’ compensation is supposed to be simple in practice, a common issue that arises from workplace accidents at construction sites is clarifying liability when there is a subcontractor relationship or multiple subcontractor relationships. The issues regarding workers compensation liability and civil suit immunity following the injury of a subcontractor worker are at the center of the Third District Court of Appeals’ recent decision in VMS, Inc. v. Alfonso (PDF download).

Alfonso started with a long chain of subcontractor relationships. At the beginning of the chain is the Florida Department of Transportation, which contracted with VMS to maintain and manage certain roadways in Palm Beach, Broward, and Miami-Dade Counties. As part of the contract, VMS was required to maintain workers’ compensation insurance, which it did. Next, VMS subcontracted some of the roadwork to ABC, which was also required pursuant to its subcontract with VMS to maintain workers’ compensation insurance, which it did. Thereafter, ABC hired an individual to handle some of the work that ABC had obligated itself to do. To accomplish this task, the individual hired several day laborers, including the plaintiff in this suit, but he never acquired workers’ compensation insurance. While performing roadwork covered by this labyrinth of subcontracts, the plaintiff was severely burned by hot tar that spilled on him. It is disputed whether VMS had knowledge of the accident, but the individual who hired the day laborer and ABC did have knowledge, and neither ABC nor VMS reported the incident to their respective workers’ compensation insurers.

Continue reading

photo_1115_20060217In a recent article, the Sun Sentinel examined the sudden rise in the number of workplace fatalities in Broward County, Florida. Although the post-recession rejuvenation of South Florida’s construction market is welcome news economically, increased demand for construction work has, according to sources in the story, led to the hiring of more inexperienced workers and failure to adhere to basic safety precautions, such as the installation of guardrails and the proper rigging of worksite machinery. Alarmingly, there have been 11 work-related deaths in Florida so far this year, including six in Broward County since the beginning of June. The most recent death occurred at a car dealership construction site in Fort Lauderdale, where a beam collapsed and knocked several workers off a ladder. In response to this sudden rise in fatalities, local members of Safety Alliance for Excellence (SAFE), a collaborative organization of contractors based in Miami, are set to meet with officials from the local office of the federal Occupational Safety & Health Administration to discuss the measures that should be taken to address the problem.

Like almost all other states, Florida has a workers’ compensation scheme that governs liability and financial recovery for injuries arising out of and in the course of employment. The provisions of Florida’s workers’ compensation scheme are codified in Chapter 440 of the Florida Statutes. Pursuant to § 440.10, all contractors and subcontractors engaged in either private or public construction in the state are required to maintain workers’ compensation insurance coverage for their employees. Pursuant to § 440.11, the workers’ compensation scheme is the exclusive remedy for liability arising from injury or death resulting from workplace accidents. It immunizes employers from common law negligence liability.

There are only two narrow exceptions from the exclusivity provision of the scheme. These are if the employer fails to secure payment as provided by the provisions of the workers’ compensation scheme, or if the employer commits an intentional tort causing the injury or death of the employee. See §§ 440.11(a)-(b). For the purposes of the second exception, an employer’s actions are deemed to constitute an intentional tort only if they are either deliberately intended to injure the victim or constitute conduct the employer knew, based on prior similar accidents or explicit warning, was virtually certain to result in injury or death. Furthermore, the employee must have been unaware of the attendant risks because the danger was either unapparent or deliberately concealed or misrepresented by the employer. See § 440.11(b).
Continue reading

openphotonet_IMG_0318Although most claimants for disability benefits never imagine that the resolution of their claims will create much in the way of buzz, one injured firefighter’s request for benefits has led him all the way to the Supreme Court of Florida. On June 5, the Supreme Court of Florida heard oral argument in Westphal v. City of St. Petersburg, which addresses a recurring problem for claimants currently receiving temporary total disability benefits and seeking to acquire permanent total disability benefits. Specifically, the case deals with a “statutory gap” created by the provisions § 440.15 of the Florida Statutes, which leaves certain disabled workers without any form of disability benefits as they transition from temporary to permanent total disability.

Bradley Westphal, a firefighter and paramedic, injured his knee and back while moving heavy furniture during a fire. Westphal’s severe injuries resulted in nerve damage and required both spine surgery – specifically, a five-level fusion of the lumbar spine – and a host of other medical treatments. His employer accepted his injury as compensable and paid Westphal temporary total disability benefits pursuant to § 440.15(2)(a). Entitlement to temporary total disability benefits is limited to 104 weeks, and Westphal, who remained unable to work per medical advice, filed a claim for permanent total disability benefits towards the end of his temporary benefit entitlement window. To establish entitlement to permanent total disability benefits, one must show “not only total disability upon the cessation of temporary benefits but also that total disability will be existing after the date of maximum medical improvement.” City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998). Westphal’s claim was denied based on the testimony of the physician who performed Westphal’s second surgery and stated that Westphal was still recovering from his second surgery and, thus, it was too soon to determine whether he had attained maximum medical improvement. Accordingly, although Westphal was presently “totally disabled” and could very well remain totally disabled even with maximum improvement in condition, he could not receive permanent benefits because improvement beyond total disability was still conceivable. Westphal would therefore have to wait until evidence was conclusive that he would remain totally disabled even after attaining maximum medical improvement before he could receive benefits.

Westphal appealed the denial of his claim to Florida’s First District Court of Appeal. The original panel of three judges unanimously held that the denial of benefits amounted to an unconstitutional denial of access to the courts under article I, section 21, of the Florida Constitution. However, the full panel of judges of the First District Court of Appeal granted a motion for rehearing en banc. In this later decision, the en banc court withdrew the panel decision but still found in Westphal’s favor. The court reversed an earlier appeals court precedent and adopted a new statutory construction of the disability provisions, holding that “a worker who is totally disabled as a result of a workplace accident and remains totally disabled by the end of his or her eligibility for temporary total disability benefits is deemed to be at maximum medical improvement by operation of law and is therefore eligible to assert a claim for permanent and total disability benefits.” Finding that their decision concerns a question of great public importance, the court then certified the case for review by the Supreme Court of Florida.

Continue reading

2Last month, a crane being used for construction on a lot in an affluent enclave of Hallandale Beach collapsed, leading to the death of one construction worker. The collapse occurred at approximately 9:40 AM, as the crane was being moved in the worksite, located at the 400 block of Alameda Drive in Hallandale. According to reports, the crane started to wobble during the moving process and eventually tipped over. Although the workers scattered, one was unable to flee in time and was struck by the falling crane. The crane also hit a neighboring home, causing damage to the roof and air-conditioning system. The police as well as representatives from the U.S. Occupational Safety and Health Administration (OSHA) are investigating what may have caused the collapse, and both the crane’s driver and boom operator submitted blood samples as part of the investigation.

Unfortunately, crane-related fatalities are not uncommon. Since 2011, there have been six crane-related deaths in Florida, and according to the U.S. Department of Labor, nearly 100 people die annually in crane and derrick accidents. Following a spate of these accidents, including a 2008 incident in downtown Miami that caused two deaths, OSHA in 2010 updated its crane regulations, which had largely been unchanged since they were first enacted in 1971. In addition to promulgating regulations, OSHA also performs worksite investigations and issues citations for safety violations. However, many of these investigations occur, as in this recent incident, after an accident has already occurred.

Certain states and municipalities have implemented their own crane regulations. In fact, following a series of accidents and less than a month before the aforementioned accident in downtown Miami, Miami-Dade County issued an ordinance regulating crane inspection and operator certification. Ultimately, a federal judge ruled that certain provisions of the ordinance conflicted with OSHA regulations and were thus preempted by federal law and unenforceable. However, the Florida Legislature went a step further in 2012 when it passed House Bill 521. HB 521 preempts all local regulation of “hoisting equipment and persons operating the equipment.” Given the paucity of related state law and regulation, HB 521 in effect limits the regulation of cranes to existing federal regulation.

Continue reading