View this article online: https://www.insurancejournal.com/news/southeast/2021/10/08/635967.htm
The Florida Supreme Court on Thursday handed down no insurance-related opinions in its regular weekly posting and did not report a long-awaited decision on an insurance defense attorney charged with coaching a witness through text messages.
But one step down the appellate ladder, the 1st District Court of Appeal issued opinions in two workers’ compensation cases, one of which could affect case law for years to come.
In Victor Cabrera vs. Kablelink Communications, Sedgwick Claims Management and New Hampshire Insurance Co., the appellate court delved into the evolving national issue of which workers should be considered employees and who should be classed as independent contractors.
The court’s conclusion? In this case, Judge Timothy Osterhaus wrote for the majority that under Florida law, a TV cable installer is not a construction worker, and thus, is not considered an employee. Florida statutes, unlike those in many other states, make it clear that the term “employee” includes “an independent contractor working for or performing services in the construction industry.”
Cabrera fell from a ladder in 2016 while running cable and was severely injured.
But the compensation judge, Timothy Stanton in Gainesville, ruled that cable installers are not engaged in construction. Florida law defines construction as “substantial improvement in the … use of any structure.” The state Division of Workers’ Compensation also has developed rules that incorporate the classifications codes published by the National Council on Compensation Insurance.
The claimant’s attorney, Michael Winer of Tampa, argued that “as a matter of pure common sense,” Cabrera’s work for the cable company should be considered construction work. The courthouse, for example, is a structure that is improved by and relies on cable-related communications.
“Indeed, we can appreciate that the availability of modern communications services—telephones, the internet, and other connected services—is vital to our building’s ability to function as a modern courthouse,” the court wrote. “Without these services our building could not serve very well as a courthouse.”
Nonetheless, the judges found that “we cannot determine whether claimant’s cable installation work involved making a ‘substantial improvement’ in the use of the homes served by Kablelink.” The court upheld the compensation judge’s decision.
In Michael Shelton vs. Pasco County Board of Commissioners and Commercial Risk Management, the appeals court emphasized the need for an alternate expert medical adviser if the first one is barred by a judge.
In the case, both sides had stipulated at a hearing that Shelton’s enlarged heart condition was compensable. Shelton worked as firefighter and had developed heart disease over his career. He was determined to be disabled in 2018. Florida’s “heart-lung” law allows compensation for most first responders who develop cardiovascular or respiratory conditions.
The disagreement was over the date of maximum medical improvement and the impairment rating. The claimant’s doctor and the employer’s physician did not agree on those questions. The workers’ compensation judge, Edward Almeyda, appointed a third doctor as an expert medical adviser, as is required by state law.
But when the claimant objected to the EMA’s qualifications, the judge removed the EMA then unexpectedly denied the claim. The appeals court’s per curiam opinion said that the comp judge should have appointed a second medical adviser and should not have denied the claim. Case law is clear that “stipulations should not be ignored or set aside without a showing of fraud, overreaching, misrepresentation, or some other basis that would void the agreement,” the DCA wrote.
The appeals court remanded the matter to the comp judge, with instructions to name another expert medical adviser and to approve the stipulation on the compensability of the heart condition.