Cases

The question in this case is whether there was an excuse for the claimant to notify the employer/carrier that an accident had occurred in the workplace pursuant to Section 440.185(1), Florida Statutes.  In this case, the claimant alleged a May 22, 2019 injury but did not notify the employer of such an accident until well after the 30-day time period for reporting such as required in Section 440.185, Florida Statutes. In accordance with this statutory provision, failure to timely advise the employer of an accident within 30 days of the event precludes entitlement to workers' compensation benefits. 

Exceptions to this rule include those situations where the employer had actual knowledge of the injury;  the claimant could not discern that the work caused his injury without a medical opinion; or "exceptional circumstances, outside the scope of these circumstances justifying such failure." A diagnosis of the condition is not necessary to start the clock under the statute unless the claimant either was unaware at the time of the accident caused him some bodily harm or he was not aware that the incident itself caused the debilitating symptoms. 

Medical records reflected that following the May 22 alleged incident, the claimant made numerous visits to seek medical care but never mentioned an alleged neck and back injury that the claimant was claiming related to the incident of May 22.  The court referenced the Supreme Court decision of Escarra v. Winn Dixie Stores, 131 So. 2d 483 which made reference to the fact that the starting of the time to give notice does not begin until the claimant as a  reasonable man should recognize the nature of the seriousness and probable compensable character of his injury or disease.  However, the court pointed out that the Supreme Court's opinion was applying a different version of this time-bar statute.  The current statute runs the 30 days either from when the employee suffers the injury or from its initial manifestation of the injury which was not readily apparent at the time of the accident.  One exception to this requirement is that the cause of the injury could not be identified without a medical opinion.  In this case, there was never any doubt in the claimant's mind that the cause of the pain underlying his injuries related to the May 22 incident.  Accordingly, a medical opinion was not needed to clear that up.  The 30-day requirement notice could be delayed if there is a finding of "exceptional circumstances." Court found that there were no exceptional circumstances in this case warranting a delayed notice of accident to the employer/carrier.

Conflicting IMEs required the appointment of an EMA.  The EMA determined that the May 22 incident was the result of a diagnosed herniated disc.  However, the EMA relied on evidence presented by the claimant as to facts not in evidence. Court determined the EMA's opinion in this instance was improper and accordingly, belief in the Expert Medical Advisor's presumed correctness of the facts presented a clear and convincing amount of evidence to the contrary as determined by the JCC.