Lemil Desir v. Nouveau Associates and Claims Center, 32 Fla. L. Weekly D2565b (Fla. 1st DCA October 30, 2007).
Facts and procedural history

In this appeal, the claimant sought review of a JCC ruling that water and utility bills were not medically necessary under section 440.13, Florida Statutes.

As a result of a compensable accident, the Claimant suffered permanent paralysis from the neck down. The E/C provided benefits without necessity of a JCC order and purchased and built a home specifically designed to address the Claimant’s unique needs as a quadriplegic. Claimant paid $700 per month, which included water, sewer, and garbage fees. Additionally, Claimant paid his electric bills directly.

The issue was whether the $700 per month included water, sewer and garbage bills, or whether that amount should be credited solely to rent. The E/C argued the Claimant should pay $700 per month solely to rent and should also pay his water, sewer, and garbage. The Claimant argued the $700 he paid included water, sewer and garbage.

Ruling
The First District Court of Appeals reversed the JCC’s order because Florida case law states that under these facts, the E/C was responsible for paying the difference between what the Claimant paid before the accident and the post-accident living expenses attributable to the injury.
The appellate court held the JCC should not have focused solely on the medical necessity. The medical necessity requirement had to be reconciled with the equally important principle that the E/C must pay the difference between the cost of Claimant’s pre-injury housing and the cost of “an apartment or house fully equipped according to the specifications set out in the JCC’s order.”

The Claimant proved his financial responsibility did not exceed the expenses before the accident, so it was the E/C’s burden to demonstrate special circumstances exist such that Claimant should be charged with both rent and utilities. An E/C may be able to show that although the Claimant is continuing to pay pre-injury amount, he is receiving a greater benefit not attributable to his injuries, like sublease payments or financial contributions made by new occupants of the home provided by the E/C. However, the court didn’t find that these kinds of facts were present in this situation.
Troche v. GEICO, 32 Fla. L. Weekly D2401b (Fla. 1st DCA October 5, 2007).
Facts and Procedural History

The Claimant appealed the denial of his workers’ compensation claim for bilateral carpal tunnel syndrome. The JCC denied his Petition for Benefits (PFB) for both wrists due to the statute of limitations in 440.19(1), Florida Statutes (2001). The Claimant filed a PFB on April 12, 2000 so the JCC barred him from refiling the claim more than two years later. The 1st DCA reversed the dismissal of the claim and remanded for the JCC to consider the merits of Claimant’s petition.
Conclusion

The Court held that the filing of a PFB has no effect on when the statute of limitations begins to run in a repetitive trauma injury. See City of Miami v. Tomberlin, 492 So. 2d 433 (Fla. 1st DCA 1986). In a repetitive injury case, the date of injury is generally determined to be the last date of exposure to the trauma. See Barret v. Douglas Fertilizer & Chem., 702 So. 2d609, 610 (Fla. 1st DCA 1997). The fact that the Claimant filed a previous workers’ compensation claim for the same injury did not alter the fact he continued to suffer a new repetitive trauma every time he performed his job duties.

The Court found it significant that after his first workers’ compensation claim, the Employer did not change the Claimant’s job duties to stop the repetitive trauma. If the Employer had changed the Claimant’s job duties and stopped the Claimant from being exposed to the repetitive trauma, then the statute of limitations might have run from the last date he was exposed to the particular injury.
Turner v. Miami-Dade County School Board, 32 Fla. L. Weekly 2341b (Fla. 1st DCA September 28, 2007)
Facts and procedural history

In this workers’ compensation case, the Claimant challenged a workers compensation order. The Claimant argued the JCC erred in denying her claim for penalties and interest related to the late payment of impairment benefits for her back injury. This issue was previously before the appellate court in Turner v. Miami-Dade School Board & Gallagher-Bassett Services (Turner 1), in which the court found the Claimant was entitled to penalties and interest on the late payment of benefits because the Employer was aware claimant had reached MMI on March 29, 2002, but failed to make payments until July 23, 2002. However, the JCC failed to make any findings of fact on this issue, so the court remanded to make findings of fact supporting the JCC’s conclusion.

Ruling
The 1st DCA reversed and remanded with directions to the JCC to award the Claimant penalties and interest on the late payment of impairment benefits pursuant to sections 440.20(6) and 440.20(8), Florida Statutes (2001). On remand, the JCC again denied the claim for penalties and interest, stating the Claimant did not meet the burden of proof for her claim. However, the JCC held the Employer had the burden of proof, not the Claimant, of establishing they were unaware of the date the Claimant alleged benefits were due. See Dollar Gen. v. McCoy, 927 So. 2d 169, 170 (Fla. 1st DCA 2006). The Employer offered no evidence to support its contention it was unaware, as of the date of MMI, it was required to pay Claimant impairment benefits for her injury. As a result, it was incumbent on the JCC to award both penalties and interest to the Claimant.