McConnaughhay, Coonrod, Weaver, Stern & Thomas, P.A.

Workers' Compensation

Temporary Labor Source v. E.H.

25 FLW D1393

Following accident, claimant's blood was tested by emergency room technician for medical purposes. Test proved positive for cocaine. Court determined that such tests performed for medical purposes may be admissible to support an intoxication defense under Section 440.09(3), Florida Statutes. The presumptionsof such a positive test set forth in Section 440.09(7)(b), Florida Statutes, do not arise and such test is not admissible unless the Florida Administrative Code Rules required by Section 440.09(7)(d), Florida Statutes, are followed. In this instance, there was a lack of compliance with the rules. Court determined that JCC was correct in ruling that the employer/carrier are not entitled to a presumption that the injury was occasioned primarily by the influence of a drug upon the claimant. In this case, while the evidence supported a finding that the claimant was under the influence at the time of the accident, competent and substantial evidence supported the JCC's finding that the influence of drugs was not the primary cause of the accident. JCC ruled that claimant had not reached maximum medical improvement as a result of an amputation of his leg and therefore, a ruling of permanent total disability was premature. Judge ruled that the use of a prosthetic device could increase the claimant's ability and capacity for work and therefore, maximum medical improvement had not been reached. On appeal, this decision was reversed. Court determined that claimant was at MMI and determined that the prescribing of a prosthesis would not change the fact that the claimant had suffered a catastrophic injury. Under Section 440.15(1)(b), Florida Statutes, a claimant with a catastrophic injury in the absence of conclusive proof of a substantial earning capacity is presumed to be PTD from the date of the accident.

Cases

Workers' Compensation

Temporary Labor Source v. E.H.