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Blockbuster Decision by the Florida Supreme Court on Workers’ Compensation Attorneys Fees

The Florida Supreme Court entered a blockbuster decision on October 23, 2008 on the Florida workers’ compensation attorney’s fees provisions of the 2003 Florida workers’ compensation statute in Emma Murray v. Mariner Health, 33 Fla. L. Weekly S845.  Click to read the decision. The decision is important to all Florida first responders!The Florida legislature amended the attorney fee provisions of 440.34 five years ago and tried to limit the payment of the workers’ compensation attorneys. Florida workers compensation attorneys, like Nancy Cavey, were paid attorneys fees if they successfully obtained workers’ compensation benefits at the expense of the Florida workers’...

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How MUCH Time Does A Florida First Responder NEED to Miss to Be Disabled For Presumption Purposes?

Just because you are covered by the Florida Heart and Lung Act, does not mean you get benefits. You have to be disabled! OK, but HOW long do you have to be out to meet the disability standard?In an awful decision in Bivens v. City of Lakeland, 33 Fla.L. Weekly D2342b (October 2, 2008), the First District noted that “disability occurs only when the employee becomes actually incapacitated, partially or totally, from performing his employment.” A finding of “disability hinges solely on the employee’s ability to earn incomes, not upon  other factors such as whether the employee has experienced a...

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Essential Hypertension is NOT Covered by the Heart and Lung Presumption

In an awful decision, Bivens v. City of Lakeland, 33 Fla. L. Weekly D2342b (October 2, 2008), firefighter Bivens claimed workers’ compensation benefits arguing that his hypertension was a covered condition under the statutory provisions of section 112.18(1).The First District ruled that essential hypertension was not a form of hypertension covered by Section 112.18(1). Only “hypertensive conditions that are arterial or cardiovascular hypertension” are covered by the Heart and Lung Presumption.In future posts I will explain the difference between essential, arterial or cardiovascular hypertension.The new line of defense to First Responder workers compensation claims will be to deny claims on...

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Cardiac Case Law – Do I Have to Be Disabled to Benefit from the Presumption?

The First District Court of Appeal has held in two cases that you must be disabled for the presumption to apply.In Sheaffer v. City of Kissimmee, 942 So2d. 887 (Fla. 1st DCA 2006) and in Miller v. City of Del Ray Beach Police Department, 31 FLW D465 (Fla. 1st DCA 2006) record ruled that a presumption was not applicable since the first Responder was not disabled.As of October 1, 2003, section 440.151(3) defined “disability” as “the incapacity because of injury to are in the same or any other employment the wages which the employee was receiving at the time of...

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Cardiac Case Law – Retroactive Application of Presumption

The First District Award of Appeal entered a great decision in Seminole County Sheriffs Office v. Johnson, 901 So2d. 342 (Fla. 1st DCA 2005).This case stands the proposition that the 2002 amendments to 112.18(1) which expanded the class of people entitled to the statutory presumption to include firefighters, law enforcement and correctional officers as statutorily defined applies retroactively without regard to the date of accident and injury.This means that the change was procedural and not substantive. As a result, the change in the statute applies to officer Johnson....

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Cardiac Case Law – Does the Presumption Apply to a Retired Firefighter?

No! In Smith v. City of Miami, 552 So2d. 245 (Fla. 1st DCA 1989), be First District Court of appeal ruled that the First Responder presumptions do not apply to a retired firefighter.The Court reasoned that a retired fireman did not meet the definition of section 112.191 (1)(b) which requires that a “fireman” be a “duly uniformed firemen.” Since he was retired, he was not a “duly uniformed firemen.”The lesson here is to consult with an experienced first responder attorney, like Nancy Cavey, so that you don’t retire prematurely and jeopardize your rights to First Responder workers’ compensation benefits....

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Cardiac Case Law – The Punsky Decision Update

The Carrier in the blockbuster Punsky decision, which gutted the Employer/Carrier’s favorite risk factor defense, has filed a Motion for Re-hearing asking the First District Court to change its mind. I doubt the court will agree but I will keep you updated.If you have questions about your First Responder Heart and Lung case or questions about your Florida workers’ compensation benefits, contact Nancy Cavey, a St. Petersburg board certified worker’s compensation lawyer who specializes in representing first responders....

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Florida First Responder Workers’ Compensation Benefits – Permanent Total

One of the most important Workers’ Compensation benefits you can claim is permanent total disability benefits. A claim for permanent total disability benefits for dates of accident after October 1, 2003 is based on whether you’re functional capacity for work is less than sedentary.It is important to determine your functional capacity as a first responder and your functional capacity to do less than sedentary work in the labor market. One of the ways to prove your functional capacity is to undergo exercise testing.There is a very important article from Circulation, a Journal of The American Heart Association on any assessment...

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If You Don’t File for Social Security Disability Benefits, You May Jeopardize Your Right to Long Term Disability Benefits

Most Long Term Disability policies require that you apply for Social Security Disability benefits. If you don’t, the Long Term Disability carrier will take the position that you are in fact, receiving Social Security Disability benefits and reduce your benefits accordingly.If there is a clause in your Long Term Disability policy that requires you to apply for Social Security Disability benefits you should immediately contact an experienced Long Term Disability and Social Security Disability attorney, such as Nancy Cavey, who can help you coordinate the application for those benefits and help develop the evidence that will get you both...

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