Florida Record

Wednesday, September 18, 2019

Appellate court reverses finding of suspected intoxication in workers comp case

By Michael McGrady | Mar 2, 2018

TALLAHASSEE — In a recent decision, a Florida appellate court has reversed an opinion, indicating that a workers’ compensation insurer is still on the hook after failing to meet its responsibilities during a 120-day pay and investigative period. 

This reversal, ordered by the First District Court of Appeal in Tallahassee, also overturns a decision made by a judge of compensation claims (JCC) who sided with the insurer and the client employer after the JCC affirmed an intoxication defense on behalf of the insurer. 

In the immediate case, Edward Paradise v. Neptune Fish Market/RetailFirst Insurance Co., the courts determined that the intoxication defense was lacking.

“We find no competent substantial evidence that the [employer/insurer] demonstrated material facts, relevant to the issue of compensability, which they could not have discovered through a reasonable investigation during the 120-day, pay-and-investigate period of the statute,” the opinion stated. “As a result, we find it unnecessary to address the other issues raised by claimant in this appeal.”

First District Chief Judge Bradford L. Thomas, Judge James R. Wolf, and Judge Stephanie W. Ray concurred with the opinion, according to court documents.

The case was prompted by an incident Aug. 22, 2015 where an employee of the Neptune Fish Market fell on his side, causing severe injury. The employee indicated that he fell on his right side by stepping on a piece of fish that was on the ground. 

The owner of the fish market was notified the same day but failed to report the incident to his business insurer, RetailFirst Insurance Co. The insurer wasn’t notified of the incident until the injured employee filed a claim May 12, 2016, nearly a year later. 

The employee, on the day of the injury, was taken to a hospital run by the Department of Veterans Affairs, where he was diagnosed with a fractured right hip. In the weeks after the accident, the employee underwent several surgeries and constant hospitalization, resulting in the removal of his right hip joint. 

The recovery phase for the employee, according to the opinion, was arduous. He was diagnosed with several illnesses and infections including MRSA. 

After the insurer was notified of the claim, it opted to facilitate a 120-day investigation to find all the facts needed for compensability of the worker's claim. One of the critical defensesfor  the counsel for the employer/insurer was the argument that the employee was intoxicated on the day of the incident. The opinion contends that JCC and the counsel in question perfected an intoxication defense against the employee based on insubstantial evidence and redacted medical records from the VA. Despite the push to reveal those documents, the counsel for the employer/insurer subpoenaed the hospital but it never complied. 

The findings of the JCC, arguing that the insurer is off the hook for the workers’ compensation claim for employee, were reversed due to insufficient material evidence. 

“In the order, the JCC identified four specific reports demonstrating that claimant was intoxicated on the date of the accident… With only one exception, the specific reports identified by the JCC are essentially the same and redacted in the same manner as those in the possession of the E/C before the end of the 120-day period,” the court ruled.

Attorneys Christine M. Tomasello of Gordon & Doner PA of Palm Beach Gardens represented Paradise while H. George Kagan of Delray Beach, represented Neptune Fish Market.

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Florida First District Court of Appeal