Florida Appeals Court Rejects Insurer’s Attempt to ‘Retry the Claim’

December 2, 2021

An appellate court’s job is to determine whether evidence supports the workers’ compensation judge’s decision, not to weigh information about arguments that have already been rejected, Florida’s 1st District Court of Appeals said Wednesday.

In Ranger Construction Industries and Charter Oak Fire Insurance vs. Dallas Brand, the court took sharp exception to the insurer’s claims of “purported inconsistencies” in the worker’s story and its arguments that there was scant proof that the man was hurt at all.

The opinion, written by Appeals Court Judge Harvey Jay, referred to the court’s 1983 ruling in Swanigan v. Dobbs House. In that decision, “we made it clear that we will ‘not retry the claim at the appellate level and substitute our judgment for that of the (compensation judge) on factual issues supported by competent, substantial evidence.'”

Appeals that attempt to do so are baseless, the opinion concluded. The court affirmed the compensation judge’s decision.

Brand was, according to his original comp claim, injured in July 2018 while operating a steel wheel roller at Ranger’s site in Orlando. He said he felt a sharp pain in his shoulder that forced him to stop working. A physician diagnosed a torn rotator cuff.

The compensation court record shows that the employer and insurer, a subsidiary of Travelers Insurance, fought the claim from the start. They said that the doctor was not authorized by the insurer and that medical services were not approved. The compensation judge, Thomas Sculco, found the claim was legitimate and awarded temporary partial disability benefits, penalties, interest and attorney’s fees.

On appeal, the insurer continued to try and poke holes in the claimant’s original claim. Those arguments were “difficult to square with the abundant evidence cited by the judge of compensation claims,” the appeals court wrote.

“As we have pointed out on numerous occasions, the standard of review in workers’ compensation cases is whether competent substantial evidence supports the decision, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below,” the appellate court wrote.

The employer and insurer in the appeal were represented by attorneys Steven Preston, Lindsey Hicks and Gregory Coican. The claimant was represented by Nicholas Ari Shannin and David Mallen.