On July 26, 2007, David Barone, a 59 year-old New Smyrna Beach, Florida construction worker, fell approximately 20 feet from a platform resulting in a shattered right heel and multiple left foot fractures. The accident was accepted as compensable and the workers’ compensation carrier provided several unsuccessful open reduction surgeries. Over the course of several years the fractures resulted in non-unions (a failure of healing following a broken bone) causing a permanent injury.
The insurance company asserted multiple defenses, including an apportionment argument which would result in another employer and carrier (or possibly the injured worker himself) being financially responsible for payment of a portion or possibly all of the medical and lost wage benefits. The Honorable Robert McAliley denied the carrier’s attempt to continue the hearing finding that they had sufficient time, knowledge and opportunity to, “flush out the issue well before the motion to continue was filed.”
In reviewing the facts of the case, Judge McAliley stated that Barone had climbed a 24 foot ladder and was standing on a platform to pour structural concrete when the platform gave way and he fell to the ground below. He was immediately taken to a local hospital and operated on by a board-certified Orthopedic surgeon to repair a divergent left foot Lisfranc fracture and a displaced right foot cuboid with calcaneus fracture. Barone was discharged and given non-weight bearing restrictions and returned to work at Kennedy. In November 2007, he had a pin removed and was returned to work at a sit down job. In February 2008, x-rays revealed bending of the pins in the right foot indicating a non-union resulting in further surgery and insertion of a plate. In 2009, Barone began working for a new company as a seasonal supervisor which he described as a light job. By September 2010, signs of post traumatic degenerative changes on x-rays were seen and in December 2010, the prior surgery was repeated. By July 15, 2011, the surgeon states Barone “is a disabled person.”