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July 3, 2025   An employee cannot file a tort lawsuit against her employer until after it has been determined that she is not eligible for a workers’ compensation claim. And that compensability determination can only be made by an insurer or a compensation judge, a Florida appeals court has ruled.   In Steak ‘n Shake vs. Spears, Florida’s 5th District Court of Appeals overturned a Brevard County Circuit Court’s ruling in a case that involved a robbery of the restaurant and a server who said she was traumatized but not physically injured by the incident.   “We conclude that the structure and language of the workers compensation statutes require that a determination of compensability must first be made before resorting to tort lawsuits,” the appeals court panel wrote.   The circumstances of the claim were unusual and had never been addressed by Florida courts, including the 1st District Court of Appeals, which hears most workers’ compensation appeals, the 5th DCA judges noted. The National Council on Compensation Insurance this week included the case in its court case update. Read more

July 2, 2025   Introduction OSHA duty officers around the country routinely field complaints from employees and labor unions alleging workplaces are understaffed and unsafe.   Unions often dispute staffing levels, complaining that employers have insufficient bargaining unit members and insufficient members with seniority.   Individual complainants allege that they are left to work alone, have no backup in case of emergency, or are at enhanced risk of accident or workplace violence.   OSHA duty officers normally tell complainants that there are no written regulations addressing safe staffing levels , and that it is not unlawful to work alone. But employers would be wise to consider staffing levels to protect employees from recognized hazards.   In many situations, appropriate staffing can reduce risks of accidents and slow-developing injuries and ensure employee safety and emergency response. Accordingly, understanding of issues relating to safe staffing levels can be key to minimizing risks to OSHA citations and other legal liabilities.    OSHA and Legal Liabilities Under the OSH Act’s General Duty Clause (section 5(a)(1)), employers must provide a workplace free from any recognized hazard likely to cause death or serious physical harm.   For OSHA to cite an employer under the General Duty Clause, the hazard must be recognized by the employer or in the industry. Where insufficient staffing is recognized to expose employees to hazards, employers face liability for Serious or Willful OSHA citations.   Recognized hazards principally exist where staffing levels render employees unable to perform critical safety tasks.  Further, injuries to employees resulting from alleged understaffing could result in workers compensation claims. Injuries to non-employee workers could result in tort claims, alleging negligence and a failure to meet the standard of care of a reasonable employer.   Though there is no criminal liability for a willful violation brought under the General Duty Clause, a willful violation of a specific regulation resulting in a fatality can result in criminal prosecution punishable with six months in federal prison. State governments occasionally also prosecute employers (and managers) for a range of criminal violations relating to deaths in their workplaces. Read more

June 27, 2025   Melbourne-based plastic surgeon Mauricio Castellon is facing felony charges after investigators say he violated stop work orders from the state for operating without workers compensation insurance. Castellon, 56, who lives in Satellite Beach, was arrested on June 18 and charged with one count each of failing to secure workers' compensation insurance and workers' compensation fraud. He has since been released on bond from the Brevard County Jail.   Investigators with the Florida Department of Financial Services said Castellon Plastic Surgery Center, at 1499 S. Harbor City Blvd., had been notified multiple times about a lapse in its workers' compensation insurance coverage.   As a result, investigative reports show that Castellon was issued a stop-work order until he addressed the lapse in coverage. Investigators visited Castellon's office multiple times in March 2024 when multiple employees were found working despite the state's stop-work order, according to the arrest affidavit. Investigators with the Florida Department of Financial Services said Castellon Plastic Surgery Center, at 1499 S. Harbor City Blvd., had been notified multiple times about a lapse in its workers' compensation insurance coverage.   As a result, investigative reports show that Castellon was issued a stop-work order until he addressed the lapse in coverage. Investigators visited Castellon's office multiple times in March 2024 when multiple employees were found working despite the state's stop-work order, according to the arrest affidavit.

June 27, 2025   Companies attempting to manage workers' compensation expenses often express frustration over injury claims made by employees weeks or even months after the alleged incident occurred. In some situations, such as those involving occupational diseases, the employee legitimately may not have been aware of exposure to a harmful substance until symptoms occur a significant time later. However, in other circumstances, companies suspect that the delay in reporting the injury indicates that other factors led to the medical issue, or that the employee is claiming injury now to attempt to avoid disciplinary action for unrelated reasons.   Employers attempt to avoid these situations by adopting policies that mandate that employees immediately report workplace injuries. The policies typically state that failure to follow these instructions can lead to disciplinary action including termination. While use of these policies differs among states, employers generally may discipline workers who fail to follow these requirements. Consistent enforcement of these policies is crucial because failure to take action in one circumstance can lead to claims by a later disciplined employee of retaliation for making a workers' compensation complaint. When faced with such disciplinary action, employees frequently claim that they were not aware that they had been injured until the time they reported the incident. For back injuries and similar musculoskeletal issues, the employer should carefully review the circumstances and medical information before concluding that the employee violated the reporting policy.   If the employer concludes that it has credible evidence that the employee was aware of the injury and failed to promptly report it, they may take disciplinary action even if the claim turns out to be compensable under workers' compensation laws and rules.

June 13, 2025   Michael M. Brownlee and Stacy Ford, of Brownlee Law Firm, P.A., and Terry E. Leach, of Walker, Revels, Greninger, PLLC, Orlando, for Appellant. John N. Hamilton and Maddison Cacciatore-Straus, of Nance Cacciatore, Melbourne, for Appellees.   Florida's statutory workers compensation system strikes a bargain: employers provide workers with medical, wage and death benefits for workplace injuries and, in return, they receive broad immunity from civil tort suits. By statute, the scope of liability for workplace injuries is “exclusive” and displaces all other forms of employer liability, excepting only intentional torts and an employer's failure to secure workers compensation coverage. See § 440.11(1), Fla. Stat. (2025) (under the section entitled “Exclusiveness of liability”).   In this case, Amber Nicole Spears, a Steak ‘N Shake server, experienced severe emotional distress after a workplace robbery during which she was held at gunpoint and forced into a backroom where the gunman repeatedly threatened to kill her. The perpetrator grabbed her by the shoulder and neck during the encounter. No dispute exists that Amber was an employee of Steak ‘N Shake and that the robbery occurred in the workplace while she was within the course and scope of employment.   Amber, however, did not pursue workers compensation benefits by filing a petition with her employer, Steak ‘N Shake. Instead, she filed a civil tort case directly in circuit court without first seeking a determination of whether her injuries were compensable by the employer. In response, Steak ‘N Shake claimed that it was entitled to workers compensation immunity because Amber had not made a request for benefits, and thereby not taken the first step in the process to determine whether her injuries were compensable. Read more

June 13, 2025   A three-judge panel said she needed to seek a determination about whether she could receive workers’ compensation before filing the Brevard County lawsuit.   Pointing to workers’ compensation insurance laws, an appeals court Friday ruled against a woman who filed a lawsuit after she was held at gunpoint and forced into a backroom during a robbery at a Steak ‘n Shake restaurant where she worked.   A three-judge panel of the 5th District Court of Appeal said Amber Nicole Spears needed to seek a determination about whether she could receive workers’ compensation benefits before filing the Brevard County lawsuit against Steak ‘n Shake.   Spears said she suffered severe emotional distress because of the robbery, according to Friday’s ruling.   Spears argued that claims for such mental distress, when not accompanied by physical injuries, are outside of the workers’ compensation system. But the appeals court, overturning a circuit judge’s decision, said employees must first seek a determination about whether they are entitled to workers’ compensation benefits before filing lawsuits.   The workers’ compensation system is designed to resolve issues about workplace injuries outside of the usual court system.   “Claimants must first seek remedial relief within the workers’ compensation system, rather than filing a civil tort claim in a Florida court,” Judge Scott Makar wrote in an opinion joined by Judges F. Rand Wallis and John MacIver.   “Claimants may not unilaterally determine that their claims are not compensable in the workers’ compensation system and sue their employers; the whole point of the workers’ compensation system is to avoid piecemeal litigation in state courts and, instead, have one unified compensation system.”   The ruling sent the lawsuit back to circuit court and said it should be dismissed if Spears has not filed a claim for workers’ compensation benefits in the “interim.”

June 9, 2025 Fort Lauderdale, FL (WorkersCompensation.com) – A frantic video captured the moments after an animal care worker was mauled by a dog during the last week of May.   Animal control worker Martina Bernard was attacked on May 29 while she was visiting a home in Fort Lauderdale. Body cam footage from Broward County Sheriff’s deputies showed the aftermath of her attack. Officers responded to a call of a woman being mauled by a dog.   The videos show the officers finding Bernard at the scene. She was laying on the ground in the backyard with her face covered in blood. The dog’s owner was seen in the video nearby, along with a neighbor and her son. The neighbors were holding down the dog which had been stabbed. Read more