Case Law Update – May 2012
GOING AND COMING RULE
James Stewart v. Lakeland Funeral Home, Fla 1st DCA Case No. 1D11-1982 (May 1, 2012)
The claimant was employed as a funeral director for Lakeland Funeral Home. His regular job duties included attending the memorial service for the deceased, even if the service occurred after regular work hours or on the claimant’s scheduled day off.
The claimant was involved in a motorcycle accident on June 10, 2010. On the date of the accident, the claimant was scheduled to be off from work. However, he had to attend a memorial service for a client that evening. The claimant normally would have gone directly to the service site. However, this time he chose to first go to the funeral home to load the equipment himself, with help from an assistant funeral director, before proceeding on to the memorial service. On his way to the funeral home, the claimant lost control of his motorcycle and was injured. JCC Ellen Lorenzen denied compensability of the accident on the basis of the Going and Coming Rule.
On appeal, the claimant argued that the Going and Coming Rule was inapplicable in his case, because he was not regularly scheduled to work, and the purpose of the trip that day was to attend a memorial service, as required by his employer. As a result, the claimant argued that his motorcycle ride to the funeral home either constituted a “special errand” or alternatively, was for a “dual purpose” and was therefore compensable.
The court noted that the special errand exception includes employees who at the time of injury were on a special errand in response to a call from their employers. The court further noted that such situations were usually characterized by irregularity and suddenness. The court held that the claimant’s need to attend the memorial service was neither irregular nor sudden. Rather, attending such funeral services was a regular part of the claimant’s job responsibilities as a funeral director. There was no evidence that the employer asked the claimant at the last minute to attend the memorial service. Thus, the special errand exception does not apply.
The court then addressed the claimant’s argument regarding the Dual Purpose Doctrine. It noted that the sole purpose of the claimant’s travel at the time of the accident was to go to work and that regardless of whether he was required to go to the funeral home before heading to the service that day, “he had not yet undertaken any business of the employer at the time of the accident.” The court ruled that because the claimant was simply going to work, there was no business purpose/dual purpose to his travel. As a result, the 1st DCA affirmed the JCC’s denial of compensability.
Everyone in the claims industry is very familiar with the primary principle of the “Going and Coming Rule”. An individual who is injured while going to or coming from work is not involved in a compensable accident. However, there are numerous exceptions to the general rule. Thus, it is very important that each claim involving the going and coming rule must be analyzed and determined on a fact specific, case by case basis.
Debra Buttrick v. By The Sea Resorts, 37 FLW D870 (April 12, 2012)
In the Buttrick case, the claimant sought PTD benefits. JCC Laura Roesch denied the claim for PTD.
The First DCA noted that the JCC failed to make a finding as to whether or not the claimant had achieved MMI. As a result, the Appellate Court was unable to undertake any meaningful review. The case was reversed and remanded back to the JCC to first make a determination as to whether the claimant had reached MMI and then determine the validity of the claim for PTD benefits.
The court indicated that upon remand, in the event the JCC finds the claimant to be at MMI, she is directed to the First DCA’s prior recent opinion in Martinez v. Lake Park Auto Brokers which was decided on April 29, 2011. The court ordered the JCC to address the proof necessary to establish a connection between a claimant’s physical limitations and the inability to locate employment after a lengthy job search.
The previous Martinez case addressed the three alternative methods by which a claimant may prove entitlement to PTD benefits. As a refresher, the three ways a claimant can prove PTD are:
- Permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence due to physical limitations;
- Permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or
- Permanent work-related physical restrictions that, while not alone totally disabling, preclude claimant from engaging in at least sedentary employment when combined with vocational factors.
When evaluating the validity and strength of a claim for PTD, claims personnel should always keep in mind the three different ways in which a claimant can establish PTD. In recent years, the court has articulated standards which are significantly different than what many thought when the current version of the PTD statute was first enacted.
ONE-TIME CHANGE OF PHYSICIAN
HMSHOST Corporation v. Guerda Frederic, Fla 1st DCA Case No. 1D11-4956 (May 29, 2012)
The claimant filed a Petition for Benefits received by the carrier on March 29, 2011. The Petition requested a one-time change in physician to Dr. Kenneth Hodor. Within five days of receipt of the PFB, the E/C sent a fax letter to the claimant’s attorney dated April 1, 2011. The letter indicated the E/C was offering Dr. Lang as a one-time change and would advise of the appointment once scheduled. The fax letter was not copied to Dr. Lang and there was no other written document or phone call from the E/C to Dr. Lang within the five-day period. Dr. Lang was first notified of his authorization via a phone call on April 7, 2011, which was outside the five-day time frame.
JCC Charles Hill ruled that the mere naming of an alternate physician by the E/C is not sufficient compliance with the statutory requirement of authorization of a one-time change within five days of receipt of a written request. As a result, the JCC ruled that the E/C waived the right to select the physician and that the claimant was entitled to designate her choice of one-time change of physician to Dr. Hodor.
The First DCA reversed JCC Hill’s ruling. The First DCA specifically held that the E/C’s informing the claimant of a particular doctor’s name within five days of receiving the request satisfied the requirements in F.S. §440.13(2)(f), even though the E/C did not contact the doctor.
The Frederic case clearly holds that all the E/C must do upon written receipt of a request for one- time change in physician is to notify the claimant of a particular doctor’s name within five days of receiving the request. However, it would be prudent to keep in mind that under the facts of this case, Dr. Lang was notified of his authorization a couple of days later. Had the E/C simply notified the claimant that Dr. Lang would be the one-time change, and then done nothing for an extended period of time, it is possible the result might have been different. Therefore, when authorizing a one-time change, adjusters should still make sure to take further steps to contact the doctor and schedule an appointment within a reasonable amount of time in order to avoid a possible negative result.