HCBA Lawyer Magazine Vol. 28, No. 6 | Page 68

widowS, FirSt reSpoNderS, aNd tHe BurdeN oF prooF
Workers’ Compensation Section
Chair: Anthony Cortese – Attorney at Law
R
ecently, the First
District Court of
Appeal issued two
decisions dealing
with the burden of proof: Inmon v.
Convergence Employee Leasing, No.
1D17-0815, 2018 WL1833380
(Fla. 1st DCA Apr. 18, 2018) and
Rodriguez v. Tallahassee Fire Dept.,
No. 1D17-2224, 2018 WL
1341644 (Fla. 1st DCA, March
15, 2018).
In Inmon, the claimant’s widow
(Inmon) was a construction worker
who had been working out of town
with his supervisor. After work,
Inmon’s supervisor dropped him
off at a bar a few miles away from
their hotel. Later, while Inmon was
walking back to his hotel, he was
hit by a truck and killed. The
employer agreed Inmon’s death
was within the course and scope
of employment. But the employer
argued that benefits were not
payable because Inmon’s death
was caused by intoxication.
The JCC agreed, denying death
benefits because Inmon’s death
was primarily occasioned by his
intoxication. The JCC concluded
that as a result of his intoxication,
Inmon had been in the middle of
the road at the time he was hit.
The First DCA held that the JCC’s
finding was not
supports a
supported by
16 percent
competent
rating. Because
substantial
of the
evidence.
disagreement
In particular,
over the
the First DCA
impairment
noted there
rating, the
was no direct
JCC appointed
evidence Inmon
an EMA, who
was in the
ultimately
middle of the
agreed with
road at the
the 16 percent
time he was hit.
rating.
It was merely
But the JCC
an inference stacked
an inference.
found the EMA
upon an inference
And the JCC’s
opinion to be
is not permitted.
finding that
without merit.
Inmon was
According to
in the road
the JCC, an
because he was
ablation is
intoxicated was merely an inference
not analogous to a pacemaker.
stacked upon an inference, which
The JCC also determined that
is not permitted. Because no
an aspirin is not a drug adequate
competent substantial evidence
to support an impairment rating.
supported the JCC’s finding, the
So the JCC denied benefits.
First DCA reversed the JCC’s
The First DCA agreed that
finding and awarded Inmon’s
under the Guides, an ablation is
widow death benefits.
not analogous to a pacemaker. But
In Rodriguez, a firefighter
the First DCA reversed the JCC’s
ruling that the recommendation of
(Rodriguez) pursued impairment
an aspirin a day was not adequate
benefits for cardiac arrhythmias
to support the rating based on a
that had been accepted as
drug given to prevent symptoms
compensable. Although Rodriguez
of cardiac arrhythmia was
had a cardiac ablation to treat
reversed. Although aspirin is
the condition and his authorized
not a covered “medicine” under
treating doctor advised him to
section 440.13(1)(l), the Guides
take one aspirin a day afterward
allow a rating based on “drugs,”
as ongoing care, the treating
and aspirin is within the common
doctor assigned a zero percent
definition of drugs. Therefore,
impairment rating under Florida
the First DCA concluded the JCC
Guidelines. An IME for Rodriguez,
erred in discounting that evidence.
however, opined that the impair -
ment rating should be 16 percent
because an ablation is analogous
Author: Anthony V. Cortese – Attorney
to having a pacemaker, which
at Law
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SUMMER 2018
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