If you're a lexis.com subscriber, click on the links to access cases within your subscription plan. Note that expert commentary articles can be accessed for an additional fee on lexis.com. If you're not a lexis.com subscriber, please contact Customer Support for information about subscription plans.

When E/C wrongfully withholds benefits and medical care, the medical providers who treated the claimant during that time period may give opinion testimony. Herman Parodi v. Florida Contracting Co., Inc., 2009 Fla. App. LEXIS 12743 (August 21, 2009).  Claimant sought reversal of the decision of the Judge of Compensation Claims (JCC) to reserve jurisdiction over issues that were ripe, but not mediated, at the time of the merit hearing. Because Claimant's counsel brought the unmediated claims to the attention of the JCC, and the JCC properly reserved jurisdiction over those claims, the court of appeal affirmed. In the second issue, Claimant challenged the JCC's refusal to consider the opinions of two doctors who provided treatment to Claimant during a period when the employer/carrier (E/C) wrongfully withheld benefits and medical care. Because Claimant met his evidentiary and legal burden in proving the medical necessity and compensability of such care, the court of appeal reversed the JCC. As a result of its disposition of the second issue, the court of appeals stated that it need not address Claimant's third issue, in which he argued the JCC erred in denying permanent total disability (PTD) benefits.

Claimant, who provided false Social Security number on several occasions after his injury, in connection with treatment, was found to have knowingly and intentionally committed such falsehoods in order to obtain workers' compensation benefits. Agustin Arreola v. Administrative Concepts, 2009 Fla. App. LEXIS 11323; 34 Fla. L. Weekly D 1663 (August 14, 2009).  Appellant claimant sought workers' compensation benefits from appellees, his employer and its insurer. A Judge of Compensation Claims (JCC) ( Florida ) denied benefits on the ground that the claimant had violated § 440.105, Fla. Stat. (2006) by providing a false Social Security number in connection with treatment. The claimant appealed. The JCC found that the claimant gave a false Social Security number shortly after the accident when he was taken by ambulance to the hospital, at a pharmacy when obtaining prescription medication, and on the telephone in an interview between the claimant and appellees' investigator. The court stated that the evidence supported these findings. Although the claimant asserted that he presented the number solely as a means of identification and lacked the requisite intent to obtain benefits, this was a question of fact for the JCC to determine, and the JCC simply did not accept his account. The claimant also argued that the real reason appellees refused to provide benefits was that he was an undocumented alien. Illegal aliens were covered by the Florida Workers' Compensation Law pursuant to § 440.02(15)(a), Fla. Stat. (2006); however, they had to comply with the statute to obtain its benefits. The statute required everyone to be truthful, responsive, and complete. The court affirmed the decision.

Should Paralegal Expenses Be Reimbursed to the Attorney As Litigation Expenses or Are They Subsumed Within Attorney's Fees? Claimant's attorneys challenged the order of a Florida Judge of Compensation Claims (JCC) that denied reimbursement for paralegal costs in claimant's action against an employer and insurer.  The attorneys acknowledged that the JCC had the judicial power to review and pass upon the issue of attorney's fees, but argued that the JCC had no jurisdiction to pass upon the issue of reimbursement of costs, where such reimbursement was provided for in a retainer agreement between the attorneys and the claimant.  In Demedrano v. Labor Finders of the Treasure Coast, 2009 Fla. App. LEXIS 5009 (Fla. 1st DCA May 13, 2009), the First District Court of Appeals held that because § 440.34(1), Fla. Stat. (2003) authorized the JCC to do whatever was necessary to insure that a fee in excess of the fee schedule was not approved, the JCC had jurisdiction to determine if the amounts claimant's attorneys characterized as costs should have been included within the attorney's fee. The JCC correctly concluded that the charges for paralegal time were compensated within the statutory fee schedule and were not recoverable from claimant as a separate cost.  Section 440.34(1) mandated that the retainer agreement not provide for compensation as to fees and costs in excess of the amount allowed under the section.  A retainer agreement in a workers' compensation matter had to comply with both §§ 440.34 and 57.104, Fla. Stat.  Since paralegal time fell within the ambit of attorney time, the attorney fee paid as a part of the lump sum settlement was appropriately based on the fee schedule mandated by the statute and included paralegal time within the award of attorney time.   See generally Larson’s Workers’ Compensation Law §§ 133.03, 133.04.

Judge's Order Quashing Claimant's Depositions Was Improper; Strong Preference for Deciding Cases on Their Merits.  Burgess v. Buckhead Beef Fla., 2009 Fla. App. LEXIS 4446 (May 11, 2009).  Appellant claimant appealed an order of the Judge of Compensation Claims (JCC) ( Florida ) denying psychiatric care, indemnity benefits, pain management, and all future benefits.  The claimant attended, without objection, an IME scheduled by the employer and the carrier (E/C). The E/C also took the deposition of two doctors with the cooperation of the claimant's counsel. While the claimant's counsel made numerous attempts to depose medical witnesses, E/C's counsel refused to coordinate or schedule depositions and the claimant's counsel eventually unilaterally scheduled four depositions. E/C's counsel sought and was granted a protective order, quashing all for depositions. On appeal, the claimant argued that the JCC abused his discretion by denying the claimant's multiple attempts to obtain deposition testimony from his medical witnesses. The appellate court agreed, finding the exclusion of testimony from properly disclosed witnesses, based on a per se application of the JCC's interpretation of the administrative rule, was improper and in direct conflict with the legislative intent of Florida law that workers' compensation cases be decided on their merits.  The JCC's order was reversed and the case was remanded with instructions that the claims be reheard after allowing the claimant sufficient time to complete the depositions that were quashed.  See generally Larson’s Workers’ Compensation Law § 124.06.

Unlicensed Contractor Still Enjoys Immunity From Suit by Subcontractor's Injured Employees. Cent. Fla. Lumber Unlimited, Inc. v. Qaqish, 2009 Fla. App. LEXIS 3848 (April 29, 2009). The general contractor that was chosen to construct a building entered into a subcontract for the roof truss work with the contractor. The contractor, in turn, subcontracted the truss-related work to a subcontractor. The employees, who worked for the subcontractor, were injured on the job when the trusses collapsed due to the absence of temporary braces. The employees received workers' compensation benefits for the accident and then filed a negligence and intentional conduct civil action against the contractor. The trial court determined that he contractor was not entitled to workers' compensation immunity because it was unlicensed. On appeal, the district court of appeal found that, because workers' compensation immunity arose from a statute and was not a contractual right, the operation of § 489.128(1), Fla. Stat. (1999), would not affect that right. Therefore, the trial court erred in denying the contractor's motion for summary judgment on the basis that the contractor was not entitled to workers' compensation immunity because it was unlicensed. The order denying the contractor's motion for summary judgment was reversed, and the matter was remanded for further proceedings. See generally Larson's Workers' Compensation Law § 111.04.

JCC Refuses Payment of Stipulated Attorney's Fees For Appellate Work, Holding Attorney Had Already Been Compensated for Preserving Recovery.  In February 1985, claimant was working on the employer's roof when the roof caught fire. After having been severely burned, claimant jumped from the roof, sustaining multiple fractures to his lower extremities and vertebrae. The employer and carrier accepted the accident as compensable and provided medical treatment, including numerous surgeries.  Claimant requested benefits for care provided by his spouse. After two hearings, the judge of compensation claims awarded claimant $ 558,828.64 in attendant care benefits.  The employer appealed and the case was affirmed in part and reversed in part. On remand, the parties agreed the employer and carrier would pay a total of $ 491,762.39 in attendant care benefits owed to claimant. The judge of compensation claims ordered the employer and carrier to pay claimant's lawyer $ 187,515.00 in attorney's fees for securing those attendant care benefits. Subsequently, claimant and his lawyer sought approval of a "Stipulation on Employee-Paid Attorney's Fees and Costs." The stipulation provided that claimant would pay his lawyer $ 62,749.27 in appellate attorney's fees, for 278.89 hours of appellate work at $ 225 per hour, and that this fee was reasonable because the lawyer had preserved $ 381,659.04 in benefits. The judge of compensation claims determined that he lacked jurisdiction to approve the request for fees because the appellate court had not relinquished jurisdiction after denying claimant's motion for appellate attorney's fees to be paid by the employer and carrier, and that section 440.34(5), Fla. Stat., granted the judge of compensation claims authority to approve only an employer/carrier-paid appellate attorney's fee, not an appellate attorney's fee paid by a claimant.  Alternatively, the judge of compensation claims concluded that the stipulated attorney's fee was unreasonable because claimant's lawyer had already been compensated for securing the attendant care benefits.  The appellate court disagreed as to the judge's jurisdictional decision, finding that the judge indeed had jurisdiction.  The appellate court affirmed the denial of fees, however, based on the judge's conclusion that the attorney had already been paid. See Capps v. Indus. Blowpipe, 2009 Fla. App. LEXIS 3379 ( Fla. 1st DCA April 21, 2009)

Claimant's Pay Not "Wages" Within Meaning of Workers' Compensation Where Employee Never Paid Taxes on Income.  Appellants sought review of an order granting benefits for injuries sustained when Claimant fell from a roof. Appellants argued that the Judge of Compensation Claims (JCC) should have applied promissory estoppel to conclude that South East Personnel Leasing (South East) was liable for workers' compensation benefits, and that the JCC erred in ruling Claimant's pay constituted "wages" as that term is defined in Chapter 440, Florida Statutes.  At the time of the accident, Claimant worked for ALM Home Services (ALM), a subcontractor of JK Johns Roofing & Sheet Metal, Inc. (JK Johns), which, in turn, was a subcontractor for Centimark, a roofing contractor. South East provided payroll services and workers' compensation insurance to ALM. South East presented to JK Johns a certificate of workers' compensation insurance listing ALM as an additional insured. Next to ALM's name, the certificate stated that "coverage applies only to those employees leased, not to subcontractors."  The appellate court held that promissory estoppel did not apply. As the JCC correctly ruled, the wording in the certificate of insurance clearly conveyed that only employees leased from South East were covered. Claimant was not leased from South East; accordingly, there was no promise that Claimant was insured. As to whether Claimant’s pay constituted "wages" within the meaning of the workers’ compensation statutes, the appellate court noted that the JCC found that Claimant has never paid taxes in the but concluded, nevertheless, that the money earned by Claimant constituted "wages." The appellate court observed that at the time the JCC made his ruling, he did not have the benefit of the recent holding in Fast Tract Framing, Inc. v. Caraballo [994 So. 2d 355 (Fla. 1st DCA 2008)], wherein the court held that in order to demonstrate that a claimant's income constitutes "wages," the claimant was required to show that he reported his wages for federal income tax purposes. Claimant had not make such a showing here; his pay was not "wages" for purposes of computing average weekly wage.  See Centimark Corp. v. Gonzalez, 2009 Fla. App. LEXIS 2303, 34 Fla. L. Weekly D 578 (Fla. 1st DCA March 17, 2009)

All-Inclusive Settlement Stipulation Containing No Breakdown For Attorney's Fees is Not a Failure of Essential Terms and Attorney Is Not Entitled to Separate Fees. Claimant appealed an order by the Judge of Compensation Claims that enforced the parties' agreement to settle his case for $ 17,500, inclusive of attorney's fees and costs; the claimant argued that the essential terms of the agreement were not reached.  The claimant hired an attorney to file a petition for benefits approximately five years after his accident occurred. The employer/carrier (E/C) denied all benefits based on the expiration of the statute of limitations. Thereafter, the attorney made an offer to settle the claim for $ 17,500, inclusive of fees and costs, which was accepted by the E/C. When the E/C did not agree to draft documents in the manner requested, the attorney requested that the E/C rescind the statute of limitations defense so as to give the appearance that he obtained "benefits" and provide justification for a fee payable to him by the E/C. The adjuster refused and sent the $ 17,500 to the attorney, indicating the attorney's fee issue was between the attorney and client. The appellate court found, inter alia, that at no time prior to reaching the settlement agreement did the attorney discuss a separate stipulation for fees to be paid by the E/C. The claimant was responsible for paying his attorney's fees and costs and his demand for settlement had been for a sum certain, inclusive of fees and costs. Consequently, the issue as to the amount of the attorney's fee was an issue in which the E/C had no contractual interest.  The order was affirmed. See Lanza v. Damian Carpentry, Inc., 2009 Fla. App. LEXIS 2174, 34 Fla. L. Weekly D 574 (Fla. 1st DCA March 13, 2009)

Notice Excused Where Claimant’s Supervisor Witnessed Accident.  Claimant appealed an order of the Judge of Compensation Claims (JCC) finding his claim barred because he failed to give notice of his injury to the employer/carrier (E/C) within 30 days of the injury as required by section 440.185(1), Fla. Stat. (2007). Claimant argued the JCC erred by finding he was not excused from complying with this requirement pursuant to section 440.185(1)(a), Fla. Stat. (2007), because the E/C had actual knowledge of his injury. The appellate court agreed and reversed.  The court observed that the JCC found that Claimant's supervisor witnessed the accident in question, corroborated Claimant's description of it, and heard Claimant say “something regarding an injury,” although not specifically about a shoulder injury. The JCC also found Claimant's supervisor saw Claimant's forearm bleeding, and that Claimant informed him later that month that he had been to a doctor. Nevertheless, the JCC rejected Claimant's argument that the E/C had actual knowledge of an injury, concluding instead concluding the statute required actual knowledge of the injury be communicated by the employee to the employer within thirty days or the petition is barred.  According to the appellate court, the JCC misread the statute.  There is no “actual knowledge” provision in the rule, only in the exception. Here, Claimant's supervisor witnessed the accident, heard Claimant say something about being hurt, and learned Claimant had been to the doctor less than thirty days after the accident. Thus, there was nothing constructive about the E/C's knowledge that an accident occurred, nor that Claimant experienced some sort of injury. This was sufficient to satisfy the “actual knowledge” requirement in section 440.185(1)(a), Fla. Stat.  The notice required to satisfy the knowledge exception to the thirty-day rule need not detail every facet of the injury sustained. Rather, it is sufficient that the employer have notice of an injury. See Gregory v. Crum Staffing, 2009 Fla. App. LEXIS 2129, 34 Fla. L. Weekly D 525 (Fla. 1st DCA March 10, 2009)

Firefighter's Presumption of Work-Relatedness Held Not to Apply to Heart Attack While Firefighter Slept.  Appellant worker sought review of an order of the Judge of Compensation Claims (JCC) which denied workers' compensation benefits. The JCC ruled both that the firefighter's presumption did not apply and that, even had it applied, appellees, an employer and carrier, rebutted it by presenting evidence of a pre-existing condition and other risk factors.  The worker, employed as a deputy smheriff, suffered a heart attack while asleep. He sought workers' compensation benefits, alleging that stress from his job as a police officer had caused the heart attack and that he was entitled to invoke § 112.18(1), Fla. Stat., the firefighter's presumption. At the hearing, the medical evidence presented unanimously supported a conclusion that the heart attack was facilitated and, more likely than not, caused by a genetic condition known as combined familial hyperlipidemia (CFL), which affected the ability of one's body to handle cholesterol. Such was the opinion of both the treating physician and an independent medical examiner. The JCC determined that the worker did not merit application of the presumption because he failed his pre-employment physical. The court held the statutory presumption did apply and the employer rebutted it by introducing substantial, competent evidence of nonindustrial causation. See Punsky v. Clay County Sheriff's Office, 2009 Fla. App. LEXIS 1996 ( Fla. 1st DCA March 6, 2009)

Dismissal Too Harsh a Sanction for Failing to Attend Pretrial Hearing.  The JCC dismissed claimant’s petitions for failure to prosecute.  As indicated in the JCC's dismissal order, the parties failed to attend a live pretrial hearing noticed for March 7, 2008, or to timely submit a written pretrial stipulation. The JCC determined Claimant bore the burden of advancing his case and the parties' failure to attend the pretrial hearing equated to Claimant's failure to prosecute his claim. Without holding a hearing on the issue, the JCC concluded there was no good cause to permit further delay. The appellate court reversed.  Dismissal for lack of prosecution is only proper where "a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown." § 440.25(4)(i), Fla. Stat. (2008). The JCC's order was devoid of any findings indicating a petition, response, motion, order, request for hearing or notice of deposition had not been filed in Claimant's case in the 12 months preceding the dismissal.  While the JCC's order may have been intended as a sanction for failing to attend the pretrial hearing, the court noted previous decisions that had established that dismissal was too harsh a sanction for failing to attend a pretrial hearing, even where good cause cannot be shown, absent willful disregard for the JCC's authority. See Fuentes v. Embro, Inc., 2009 Fla. App. LEXIS 1902, 34 Fla. L. Weekly D 509 ( Fla. 1st DCA March 6, 2009)

Employer Has No Lien Against Wrongful Death Proceeds Attributable to Survivors' Claims.  Hartford Ins. Co. v. Goff, 2009 Fla. App. LEXIS 2019 (March 13, 2009).  Appellant workers compensation insurance company (insurer) sought review an order by the Circuit Court for Collier County ( Florida ) determining that it had no right to assert a workers' compensation lien on settlement proceeds recovered in a wrongful death action by appellee worker.  The worker was severely injured in a work-related accident while working. The insurer paid workers' compensation benefits to the worker totaling $ 365,853.92. The worker filed a personal injury action against the employer, a contractor involved in the project, and the employer's owner. The insurer filed a notice of payment of workers' compensation benefits pursuant to § 440.39(3)(a), Fla. Stat. (2001), thereby asserting its lien against any proceeds the worker recovered. The worker died from his injuries before his personal injury action went to trial. Thereafter, the estate filed a complaint pursuant to § 768.21, Fla. Stat. (2001). The estate settled the claims. The appellate court noted that survivors' claims in a wrongful death action were for their sole benefit and that creditors of the estate could not settle their claims against the survivors' recovery. Thus, under the facts of the case, the insurer should be given the opportunity to proceed to a hearing as contemplated by § 440.39(3)(b) to assert its lien against those settlement proceeds attributable to the estate's claims, but not to those proceeds attributable to the survivors' claims.  The judgment of the trial court was reversed and the matter was remanded for further proceedings. On remand, the trial court, in its sound discretion, was to ensure that the settlement proceeds were apportioned between the estate and the survivors in a reasonable and equitable manner, which could require an evidentiary hearing. Following apportionment of the proceeds, the insurer was permitted to assert its lien against the estate's proceeds.  See generally Larson’s Workers’ Compensation Law § 117.05, 117.06.

Firefighter's Presumption of Work-Relatedness Held Not to Apply to Heart Attack While Firefighter Slept.  Punsky v. Clay County Sheriff's Office, 2009 Fla. App. LEXIS 1684 (February 27, 2009).  Appellant worker sought review of an order of the Judge of Compensation Claims (JCC) which denied workers' compensation benefits. The JCC ruled both that the firefighter's presumption did not apply and that, even had it applied, appellees, an employer and carrier, rebutted it by presenting evidence of a pre-existing condition and other risk factors.  The worker, employed as a deputy sheriff, suffered a heart attack while asleep. He sought workers' compensation benefits, alleging that stress from his job as a police officer had caused the heart attack and that he was entitled to invoke § 112.18(1), Fla. Stat., the firefighter's presumption. At the hearing, the medical evidence presented unanimously supported a conclusion that the heart attack was facilitated and, more likely than not, caused by a genetic condition known as combined familial hyperlipidemia (CFL), which affected the ability of one's body to handle cholesterol. Such was the opinion of both the treating physician and an independent medical examiner. The JCC determined that the worker did not merit application of the presumption because he failed his pre-employment physical. The court held the record did not support such a finding. The employer's ability to rebut the presumption was not limited by an obligation to demonstrate a single non-industrial cause. It was only when there was evidence supporting the presumption that clear and convincing evidence would be required to rebut the statutory presumption. The challenged ruling was supported by substantial evidence.  The order was affirmed.  See generally Larson’s Workers’ Compensation Law § 52.07.

Florida Employee's Fatal Injuries Sustained Crossing Street Near Nightclub Were Not Sustained In Course and Scope of Employment.  Houck v. Tarragon Mgmt., 2009 Fla. App. LEXIS 1531 (February 24, 2009).  The Judge of Compensation Claims ( Florida ) entered a decision that denied appellant estate representative's claim for death benefits and funeral expenses of the decedent, who was fatally injured while on a business trip. The estate representative appealed.  Appellee employer had working for it the decedent, who was a property manager. Another property manager in another city requested training from decedent. The employer approved the training and was to commence on a Monday morning. Decedent traveled to that city on Saturday to meet a female friend so that they could engage in purely leisure activities before the training began. The friend was not able to pick her up, so the other property manager picked decedent up on Saturday and drove her to an employer-owned condominium where decedent planned to stay. Decedent and the employee then went to a restaurant for dinner, went window-shopping, and then headed to a nightclub. As decedent attempted to cross the street to the nightclub, she was struck by a car and fatally injured. The estate representative filed a claim for death benefits and funeral expenses, but the Judge of Compensation Claims denied it. The appellate court found that decedent was not a traveling employee pursuant to § 440.092(4), Fla. Stat. (2002) because she was not in the course and scope of her employment at the time of the fatal accident, but was engaged in the purely personal activity of going to a night-club.  The appellate court affirmed the decision of the Judge of Compensation Claims.  See generally Larson’s Workers’ Compensation Law § 25.03.

Compensation Allowed for Partial Rupture of Breast Implant.  The employee suffered a compensable accident which, among other injuries, resulted in a partial rupture of her right saline breast implant. The employer claimed that the damage was not compensable. An independent medical examiner testified the partial rupture of the employee's implant was caused 25 percent by the accident and 75 percent by the aged or defective condition of the implant. The Judge of Compensation Claims (JCC) found the workplace accident was the major contributing cause of the partial rupture of a prosthetic device pursuant to § 440.02(19), Fla. Stat. (2006), and apportioned out 75 percent of the benefits related to treatment for the implant pursuant to § 440.15(5)(b), Fla. Stat. (2006). The appellate court found that the JCC's finding that the implant was a prosthetic device within the meaning of § 440.02(19), Fla. Stat. (2006), such that the damage to the implant resulting from a work accident was compensable, was not clearly erroneous. However, it also found that apportionment pursuant to § 440.15(5)(b), Fla. Stat. (2006) limited apportionment for "preexisting conditions" to medical diseases or a diagnosis, and not to the "condition" of the prosthetic device.  The appellate court affirmed the finding of the Judge of Compensation Claims (JCC) that the partial rupture to the employee's right breast implant was compensable. It reversed the ruling of the JCC that apportioned out 75 percent of the medical costs associated with repairing the rupture and remanded the case to the JCC for further proceedings. See Mullins v. 7-Eleven, Inc., 5 So.3d 35 (Fla. 1st DCA 2009) (Feb. 12, 2009)

Allowing E/C to Raise Previously Unannounced Defense at Final Hearing Violated Worker’s Right to Due Process.  Appellant worker sought workers' compensation benefits for an injury allegedly arising from his job with employer. The Judge of Compensation Claims denied temporary indemnity benefits and the worker appealed.  The Judge of Compensation Claims (JCC) had scheduled the matter for an expedited hearing and instructed the parties to exchange and file a pretrial outline of issues and defenses at least 15 days before the hearing. The worker timely filed his outline, but the employer did not file its outline until the morning of the hearing. In its outline, the employer asserted for the first time that the worker's injury did not occur in the course and scope of his employment, that the alleged accident was not the major contributing cause of the worker's condition, and the worker's condition was not the result of a workplace accident. At the hearing, the employer's counsel asserted, for the first time, that the worker had a new injury caused by a new accident. The worker had no prior notice that this was an issue. The worker objected and raised the "120-day" rule, but the JCC held that this assertion was untimely. The appellate court found that allowing the employer to raise its previously unannounced defense violated the worker's right to due process. The JCC compounded this error by refusing to consider the worker's rebuttal to the defense, denying the worker's right to be heard.  The decision was reversed and the case was remanded for further proceedings. See Vargas v. Chamsy Transfer, Inc., 999 So. 2d 1101, 2009 Fla. App. LEXIS 132, 34 Fla. L. Weekly D 129 ( Fla. 1st DCA 2009) (Jan. 9, 2009)

Florida Court Remands Case for “Substantial Certainty” Determination.  Casas v. Siemens Energy and Automation, Inc., 2009 Fla. App. LEXIS 200 (January 14, 2009).  The case was on remand from the Supreme Court of Florida on the issue of whether the employer was entitled to workers’ compensation immunity.  Plaintiff, an employee who worked for defendant as a mechanical punch press operator, filed an intentional tort civil action against the employer after he sustained injuries operating the press. The employer contended the action was barred under the exclusivity rule set forth in Turner v. PCR, 754 So.2d 683 (Fla. 2000) [Editor’s Note: The 2003 statutory amendment effectively superseding Turner does not apply retroactively and, therefore, did not control this case].  Evidence tended to show that plaintiff may inadvertently have activated the press by hitting a foot pedal.  He had been instructed to always use the hand pedals to engage the machine.  Citing Lawton v. Alpine Engineered Prods., Inc., 498 So.2d 879 (Fla. 1986), as modified by Turner, the court indicated that there were material issues of fact as to whether machine operators, such as plaintiff, were allowed to remove safety devices on defendant’s machinery, that defendant may have had excellent training procedures “on paper,” but evidence could have shown that the procedure, in practice, were deficient.  The majority found the substantial certainty test had been met by plaintiff and remanded the case for further proceedings.  Justice Wells dissented, citing the “concealment” requirements established in Bakerman v. The Bombay Co., 961 So.2d 259 ( Fla. 2007).  See generally Larson’s Workers’ Compensation Law § 103.04.