Florida Workers' Compensation Law Blog

Liberty Mutual Sued for Intentional Infliction of Emotional Distress

david_mccranie@bellsouth.net (David McCranie) — Mon, 29 Sep 2008 08:36:48 -0500

Over the weekend, the St. Pete Times ran this heartrending story about James Dolan, a 34-year-old Radio Shack employee who was shot in the head by a gun-wielding assailant while on the job in 2004. The attack not only left him totally blind, but suffering from post-traumatic stress syndrome as well. His story was featured on the ABC television show Extreme Makeover Home Edition in 2005 after show's crew made his home handicapped-accessible. You can see a clip from the show here.

But the story doesn't have a happy ending. Mr. Dolan's wife had to quit her job in order to provide care for him. The effect of that lost family income was compounded by the fact that the Dolans' property taxes and utility bills have increased because of the repairs to the home.

The Dolans requested Radio Shack's workers' compensation carrier, Liberty Mutual, to provide 12 hours per day in attendant care benefits to compensate Mrs. Dolan for the care that she has had to provide to her husband, but the carrier refused. Instead, they hired vocational rehabilitation consultants who said not only that Mr. Dolan did not require any attendant care, but that he could actually return to work. The JCC did award the requested benefits in this 2/13/2008 order, but Liberty Mutual appealed. Fortunately for the Dolans, Liberty's attorney didn't file the notice of appeal within 30 days of the JCC's order, and the First DCA therefore dismissed the appeal.

Exasperated with Liberty Mutual's handling of the claim, the Dolans have now sued them for intentional infliction of emotional distress. Such causes of action against workers' compensation carriers were authorized by the Florida Supreme Court in Aguilera v. Inservices, Inc. More on this deplorable situation later.

Florida Supreme Court: JCCs Have Jurisdiction to Overturn Settlement Agreements

david_mccranie@bellsouth.net (David McCranie) — Fri, 26 Sep 2008 15:45:55 -0500

In Sanders v. City of Orlando, decided on 9/25/2008, a case I discussed here, the Florida Supreme Court has held 5-2 that the judges of compensation claims do have jurisdiction to vacate or set aside lump-sum settlement agreements which had previously been entered into pursuant to the terms of §440.20(11)(c), Fla. Stat., reversing the decision of the First DCA which had held to the contrary. [The case was originally styled Flamily v. City of Orlando, but Mr. Flamily died during the litigation, and therefore the personal representative of his estate was substituted].

To summarize the facts briefly, Mr. Flamily was employed by the City of Orlando as a firefighter. He developed heart problems which, by virtue of §112.18(1), Fla. Stat. (the "Heart-Lung" Bill), were presumptively caused by his employment. Those problems eventually resulted in his permanent total disability, and in December 1996 Flamily agreed to settle his right to future compensation benefits from the City for a lump sum. The settlement documents signed by the parties at the time contained language stating that Flamily "waived any future workers' compensation claims that were either known or unknown" at the time of the settlement.

In November 2001, five years after his settlement, Flamily was diagnosed with hepatitis C after some blood tests revealed an elevated level of liver enzmes. But evidence later showed that actually the City was in possession of some of Flamily's blood tests dating as far back as 1978 which also showed elevated liver enzymes, and Flamily testified that he was never advised about these abnormalities. He therefore filed a petition for benefits in which he sought to establish the compensability of his hepatitis C by virtue of §112.181, Fla. Stat., which, like the "Heart-Lung" Bill, establishes a presumption of compensability for hepatitis when it is contracted by a firefighter or law enforcement officer. He also sought to overturn his 1996 settlement agreement based on his heart condition on the grounds that it contained material misinformation upon which he relied when he agreed to the settlement. In his 105-page order, the JCC denied Flamily's hepatitis claim, but he did vacate the 1996 settlement agreement. The First DCA reversed the JCC on the latter point, however, concluding that by virtue of a 2001 amendment to §440.20(11)(c), the JCCs no longer have jurisdiction to vacate settlement agreements in cases where the claimant was represented by counsel at the time of the settlement.

The Florida Supreme Court quashed the decision of the First DCA. The court concluded that although the 2001 amendment to §440.20(11) establishes that JCC approval in the first instance is no longer required for the non-attorney's fee portion of a lump sum settlement agreement in cases where the claimant is represented by counsel, the amendment does not divest the JCC of jurisdiction to vacate a previous settlement agreement based upon matters discovered after the execution of the agreement.

Another interesting aspect of the supreme court's decision is the basis upon which they concluded that they had jurisdiction to review the First DCA's decision. The court concluded that the First DCA's decision "expressly and directly" conflicted with several decisions of other district courts of appeal, thus giving them the authority to review the First DCA's decision under Art. V, §3(b)(3), Fla. Const. Specifically, the court cited to cases from other district courts of appeal which have held that circuit courts have no jurisdiction over workers' compensation disputes. Justices Cantero and Bell disagreed that the supreme court had jurisdiction, and for that reason dissented from the majority's decision.

First DCA Decision May Provide Financial Incentive to Hire Undocumented Workers

david_mccranie@bellsouth.net (David McCranie) — Fri, 26 Sep 2008 13:00:30 -0500

All disability payments to an injured worker under the Florida Workers' Compensation Law are based upon the worker's "average weekly wage" at the time of his accident. But what qualifies as "wages" in making the "average weekly wage" calculation? Section 440.02(28) defines that term as including "only the wages earned and reported for federal income tax purposes. . . " (emphasis added).

"Reported" by whom? That's the issue that was raised by the facts in Fast Track Framing, Inc. v. Caraballo, decided on 9/15/2008. Mr. Caraballo was employed by Rolando Mendez. Mr. Mendez supplied workers to and was a subcontractor for Fast Track Framing, which was itself a subcontractor on a construction project where Maronda Homes, Inc., of Florida, was the general contractor. There was no dispute that Mr. Mendez (1) did not have workers' compensation insurance, (2) that he paid Mr. Caraballo (and all of this other employees) in cash ($280 per week), (3) that he never required Mr. Caraballo to complete a W-9 form (Request for Taxpayer Identification Number and Certification), and (4) that he never withheld federal withholding, Social Security, or Medicare taxes from Mr. Caraballo's wages. Unfortunately for Mr. Caraballo, however, he apparently never "reported" his wages to the IRS by filing a federal income tax return either.

Fast Track Framing did have workers' compensation insurance, however, and the JCC ordered Fast Track and its insurer to provide the medical care and disability benefits (using an average weekly wage of $280 per week) necessitated by Mr. Caraballo's 11/5/2004 accident. (Section 440.10(1)(b) a "contractor" the "statutory employer" of the employees of any subcontractor which has failed to secure workers' compensation coverage). You can read the JCC's decision here.

In a 2-1 decision, the First DCA reversed. The court held that because the injured employee did not report his wages to the IRS, his average weekly wage was zero. Therefore, he was entitled to no disability benefits as a result of his accident.

For what it's worth, I agree with Judge Padovano, who argues in his dissenting opinion that the majority's decision provides a financial incentive for employers knowingly to hire undocumented workers. 26 U.S.C §3402 requires an employer to withhold taxes from an employee's wages. 26 U.S.C §3111 requires an employer pay 6.2% of an employee's wages for Social Security tax and 1.45% for Medicare tax. The employer must deposit those all of those taxes with a participating financial institution at the time the wages are paid. And at the end of each quarter, an employer must file a Form 941 in which he reports all employee wages to the IRS. In addition, §§440.10 and 440.38 require an employer to secure workers' compensation insurance coverage for his employees, which Mr. Mendez did not do. Therefore, it appears to me that at the very least Mr. Mendez is in pari delicto (in equal fault) in failing to "report" Mr. Caraballo's income to the IRS. Given that fact, and the fact that §440.02(28) does not specify who must report the wages in order to have them counted as part of the average weekly wage, I think that the risk of this loss should fall on the employer rather than the employee.

President Bush Signs ADA Amendments Act of 2008

david_mccranie@bellsouth.net (David McCranie) — Fri, 26 Sep 2008 11:05:46 -0500

President Bush signed into law the ADA Amendments Act of 2008 (S. 3406) on 9/25/2008. The amendments will go into effect on January 1, 2009. You can read the White House press release here and coverage from the Washington Post here.

Florida Supreme Court: Courts May Award Attorney's Fees in Excess of Statutory Caps

david_mccranie@bellsouth.net (David McCranie) — Thu, 25 Sep 2008 13:42:53 -0500

In what could be a foreshadowing of the court's eventual holding in Murray v. Mariners Health [Fla. S. C. Case No. SC07-244], the Supreme Court of Florida has held 4-3 that a statute which purported to place a cap on fees for attorneys representing death row inmates must be construed in a manner that ensures adequate representation of those inmates. See Maas v. Olive, decided on 9/25/2008.

Section 27.710, Fla. Stat., first enacted in 1998, authorizes the state to expend funds for private attorneys to represent death row inmates in postconviction proceedings. Section 27.711, Fla. Stat., however, caps the amount of fees that can be paid to such attorneys at various stages of the proceedings. For example, §27.711(4)(a) caps the fees at $100 per hour, up to a maximum of $2,500, for time expended "after accepting appointment and filing a notice of appearance." And §27.711(3) says that "[t]he fee and payment schedule in this section is the exclusive means of compensating a court appointed attorney who represents a capital defendant."

In 1999, Attorney Mark Olive filed a declaratory judgment action in which he challenged the fee caps, contending that he would have to work in excess of the statutory limit in order to represent his death row client effectively. The case eventually made its way to the Supreme Court of Florida, where the court held that notwithstanding the wording of the statute the "trial courts are authorized to grant fees in excess of the statutory schedule where extraordinary or unusual circumstances exist in capital collateral cases" (emphasis added). Olive v. Maas, 811 So.2d 644, 654 (Fla. 2002)("Olive I").

In response to the court's decision in Olive I, weeks later the Florida legislature enacted §27.7002, Fla. Stat. That section provided that "[t]he use of state funds for compensation of counsel appointed pursuant to s. 27.710 above the amounts set forth in 27.711 is not authorized." See §27.7002(5), Fla. Stat. Further, §27.7002(6) and (7) penalize an attorney who seeks compensation for services above the fee caps by permanently removing that attorney's name from the list of attorneys approved to represent such capital defendants.

In 2003, Attorney Olive filed a new complaint for declaratory judgment, this time contending: (1) that the newly enacted §27.7002 violated the courts' inherent authority under Art. V, Fla. Const.; (2) that §27.7002 violates the separation of powers provision in Art. II, Fla. Const; and (3) that death row inmates have a constitutional right to postconviction counsel. The case eventually made its way once again to the supreme court.

In its 9/25/2008 decision, the court noted:

In a long line of cases, we have consistently held that statutory limits for compensation of counsel may not constitutionally be applied in a manner that would curtail the trial court's inherent authority to ensure adequate representation.

The court also quoted its decision in Olive I:

As we explained in Olive I, the Makemson decision strongly suggests that a mandatory fee cap interferes with the right to counsel in that: (1) It creates an[ ] economic disincentive for appointed counsel to spend more than a minimum amount of time on the case; and (2) It discourages competent attorneys from agreeing to a court appointment, thereby diminishing the pool of experienced talent available to the trial court.

It also made clear that to construe the attorney's fee statute in the manner argued by the state would render it unconstitutional under the separation of powers clause because it would interfere with the courts' ability to carry out its functions:

Maas argues that the rationale of Olive I is no longer valid because the Legislature enacted section 27.7002 to clarify its intent that the fee caps cannot be exceeded in any circumstances. While this may have been the Legislature's intent, such an interpretation of the statute would render it unconstitutional.

Of course, many of these are the same arguments raised by Emma Murray in her argument that the attorney's fee caps imposed by the 2003 amendment to §440.34 are unconstitutional. In fact, the separation of powers argument and Olive I were specifically raised in Murray's Initial Brief on the merits. Will the court use its 9/25/2008 decision in Olive to hold that a JCC may award attorney's fees to a successful claimant's attorney in cases involving "extraordinary circumstances"? Certainly there are differences in the two situations. Judges of Compensation Claims are not part of the judiciary, but are employees of the executive branch. And by any measure, a death penalty case, where a man's life literally hangs in the balance, is a more serious situation than is involved in a typical workers' compensation case. In addition, criminal cases present Sixth Amendment right to counsel issues that are not present in workers' compensation proceedings. On the other hand, Olive specifically noted that its reasoning had previously been used in cases involving only a statutory right to counsel. See Remata v. State, 559 So.2d 1132 (Fla. 1990). Stay tuned.

House Passes ADA Amendments Act of 2008

david_mccranie@bellsouth.net (David McCranie) — Thu, 18 Sep 2008 07:05:38 -0500

By voice vote on 9/17/2008, the U.S. House of Representatives passed the ADA Amendments Act of 2008 (S. 3406). The bill now goes to the President, who is expected to sign.

$6M Verdict Against UPS in WC Retaliation Case Set Aside

david_mccranie@bellsouth.net (David McCranie) — Sat, 13 Sep 2008 10:00:15 -0500

Section 440.205, Fla. Stat., provides:

Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

The Supreme Court of Florida has held that violation of this section by an employer creates a private cause of action in tort in favor of an employee. See Smith v. Piezo Technology, 427 So.2d 182 (Fla. 1983).

In Thigpen v. UPS, Inc., decided by the Fourth DCA on 9/10/2008, UPS fired Thigpen, one of its delivery drivers. UPS insisted that Thigpen's employment was terminated because of his failure to deliver a package to a customer, but Thigpen asserted that this reason was pretextual. The real reason, he said, was in order to retaliate against him for his having previously filed a workers' compensation claim. In support of his claim, Thigpen introduced a company e-mail which had urged UPS supervisors to crack down on "injury repeaters," that is, on employees who had sustained multiple injuries on the job and who frequently sought workers' compensation benefits. Thigpen had in fact been injured on the job on multiple occasions. The jury agreed with Thigpen, awarding him $6M in damages, including about $670,000 in economic damages, and $5.3M in punitive damages.

UPS filed a post-verdict motion for new trial, however, arguing that the trial court should not have admitted the testimony of Findeisen, one of its former supervisors. Findeisen, an employee who last worked for UPS in 1987, had been allowed to testify that while working for UPS he had been taught how to "set up" undesirable employees for termination by way of a fraudulent "presheet audit." Under that practice, Findeisen would remove a package from the targeted driver's truck and then falsify the records to make it appear that the driver had not bothered to deliver it. The trial court agreed with UPS that this testimony was not relevant because it was too remote in time, place, and purpose. The trial court also agreed that the testimony was inadmissible under §90.404(1), Fla. Stat., which precludes the admission of evidence of a person's character to prove action in conformity with that character on a particular occasion, and under §90.404(2), which bars the admission of evidence of other "crimes, wrongs, or acts" when used "solely to prove bad character or propensity."

On appeal, the Fourth DCA affirmed the trial court's decision to grant a new trial.

Senate Passes ADA Amendments Act of 2008

david_mccranie@bellsouth.net (David McCranie) — Sat, 13 Sep 2008 07:45:53 -0500

The U.S. Senate passed the ADA Amendments Act of 2008 (S. 3406) by unanimous consent on 9/11/2008. The bill now goes to the House for consideration.

Sanction of Dismissal Too Harsh for Violation of Mediation Confidentiality

david_mccranie@bellsouth.net (David McCranie) — Tue, 09 Sep 2008 15:14:53 -0500

In Hill v. Greyhound Lines, Inc., decided on 8/29/2008, the claimant had violated §440.25(3), which provides that "[e]ach party to a mediation conference has a privilege during and after the conference to refuse to disclose and to prevent another from disclosing communications made during the conference whether or not the contested issues are successfully resolved." Specifically, the claimant had revealed to his treating physician information which he obtained from the employer/carrier during a mediation conference, and as a result the JCC dismissed with prejudice his pending petition for benefits. The court held that absent a finding that the claimant willfully or deliberately violated the mediation confidentiality requirements and absent evidence that the employer/carrier was prejudiced by the disclosure, dismissal with prejudice was too harsh a remedy.

Res Judicata Does Not Bar Second Claim for PTD Benefits

david_mccranie@bellsouth.net (David McCranie) — Tue, 09 Sep 2008 15:01:05 -0500

In Temples v. WDW Hospitality & Recreation Corp., decided on 8/29/2008, the First District reiterated that an unsuccessful claim for permanent total disability ("PTD") benefits does not necessarily bar a subsequent claim for PTD. See also Myers v. Hillsborough Co. School Bd., a case which I discussed here.

E/C Owes Attorney's Fee Where Claimant Successfully Prosecuted Claim and More Than 30 Days Elapsed After Receipt of Petition

david_mccranie@bellsouth.net (David McCranie) — Tue, 09 Sep 2008 14:28:44 -0500

In Franco v. SCI at the Palmer Club at Pestancia, decided on 8/27/2008, the First District reversed the JCC's order which had denied attorney's fees to the claimant's attorney at the expense of the employer/carrier. The court noted that the petition for benefits was accepted when payment was made, not when the forms indicating acceptance of the claimant's permanent total disability status were completed. Because the E/C failed accept or deny the petition within 14 days of its receipt, they were deemed to have denied the petition. And, because they failed to make payment of the benefits within 30 days of the date they received the petition, entitlement to an award of attorney's fees attached. The court also distinguished its previous decision in Zabik v. Palm Beach County School District, 901 So.2d 887 (Fla. 1st DCA 2005), noting that Zabik was decided under the pre-2003 version of the statute. Under the 2003 version of the statute with its statutory percentages, whether the attorney "employed more than minimal effort to procure benefits for the claimant" is irrelevant.

First DCA: New Rule for Heart Attacks Caused by Emotional Stress

david_mccranie@bellsouth.net (David McCranie) — Tue, 09 Sep 2008 09:25:57 -0500

My very first post on this blog concerned a footnote in Coca-Cola Bottling Co. v. Perdue, decided by the First District on 4/9/2007, in which the court speculated whether the Florida Supreme Court's 45-year-old decision in Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 (Fla. 1962), continued to be viable in light of the legislature's 2003 amendment to §440.09(1) which requires the claimant to prove that his industrial accident caused more than 50% of the injury and need for treatment. Now, in Speed v. Securitas USA, decided on 8/27/2008, without saying so expressly, the court has cast further doubt not only upon Victor Wine, but on other Florida Supreme Court decisions holding that, in most circumstances, the heart attack must result from an unusual physical exertion in order to be compensable.

HEART ATTACKS AND OTHER INTERNAL FAILURES UNDER VICTOR WINE, MOSCA, AND ZUNDELL

Victor Wine held that a heart attack is not compensable under the Florida Workers' Compensation Law unless it results from "an unusual strain or over-exertion not routine to the type of work [the claimant] was accustomed to performing." Id. at 587. Later, extending the Victor Wine rule, the Florida Supreme Court also concluded that the "unusual strain or over-exertion" must be a physical one. "Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant's employment." Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla. 1978).

In Zundell v. Dade Co. School Bd., 636 So.2d 8 (Fla. 1994), however, the supreme court held that the Victor Wine rule does not apply where there is no evidence of a pre-existing condition which contributes to the injury. Because there was no such evidence in Zundell, the claimant's cerebral hemorrhage was compensable even though it resulted from a mere verbal altercation with a student, i.e., from emotional strain alone with no accompanying "unusual strain or over-exertion."

THE FACTS IN SPEED

The claimant in Speed was riding on an elevator when, on 12/18/2006, it malfunctioned, resulting in a series of "drop and catch" episodes whereby the elevator would drop for a distance, catch, and then start dropping again. He experienced what he described as a "panic attack," fear of impending death, weakness, and stress. A series of diagnostic studies later showed that he had actually suffered a minor heart attack. (Although this fact does not appear in the district court's opinion, the JCC's order noted that there was no evidence that the claimant had any pre-existing heart problems).

PROCEEDINGS BEFORE THE JCC

Citing the aforementioned footnote in Perdue, the claimant argued that the compensability of the heart attack should be decided under a straightforward "major contributing cause" analysis. Indeed, the claimant's independent medical examiner, the only expert who testified in the case, said that the "major contributing cause" of the heart attack was the elevator incident. The employer/carrier, on the other hand, denied the compensability of the claimant's heart attack, citing the 2003 enactment of §440.093(1), Fla. Stat., which provides:

(1) A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment. A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter (emphasis added).

The JCC concluded that he was faced with "a case of first impression" and agreed with the employer/carrier that §440.093(1) applied in determining the compensability of the claimant's heart attack. He further concluded that the enactment of this statute "makes what may have been a compensable case into a non-compensable case," i.e., that the statute implicitly overrules Zundell.

Applying the last sentence of §440.093(1), he found that the claimant clearly suffered a "physical injury." And, even though there was no psychiatric testimony to support the finding, he found that the claimant unquestionably suffered a "mental or nervous injury." Nevertheless, the JCC said, because the claimant suffered no "bumps, bruises, lacerations, sprains, or any musculoskeletal injury" which required medical treatment, the heart attack was "unaccompanied by physical trauma requiring medical treatment," and thus the claimant's heart attack was not compensable under §440.093(1). You can read the JCC's decision here.

THE FIRST DISTRICT'S DECISION

On appeal, the First District reversed and remanded, concluding that the JCC made two errors: (1) that the claimant had suffered a "mental or nervous injury"; and (2) that the claimant did not suffer a "physical trauma requiring medical treatment."

Without citing its earlier footnote in Perdue, the court simply held that §440.09(1) requires a claimant to establish that a workplace incident was more than 50% responsible for his injuries. That requirement was satisfied, said the First District, through the undisputed medical testimony that the claimant's heart attack was caused by a "stress response" to the elevator incident. "Thus," they said, "the burden shifted to the E/C to prove within a reasonable degree of medical certainty, based on objective, relevant medical evidence, that the major contributing cause of Claimant's heart attack was a nervous or mental injury." The E/C did not satisfy that burden because they presented no "expert medical testimony or other objective medical evidence that Claimant was diagnosed with a mental or nervous injury, nor that such injury, if it existed, was the major contributing cause of his heart attack."

The court then concluded that the claimant's heart attack itself constituted a "physical trauma which required medical treatment." Therefore, said the court, "even if there had been evidence that Claimant had suffered a mental or nervous injury, his heart attack would have been compensable under section 440.093(1), Florida Statutes. . . ." (emphasis added). The order was therefore reversed and the case remanded to the JCC for further proceedings.

MY THOUGHTS

It appears to me that, without expressly saying so, the court has now held what it said in dicta in Perdue, that is, that the legislature's enactment of §440.09(1) has done away with the need for the claimant to prove that his heart attack is the result of an "unusual strain or over-exertion." Rather, the heart attack is compensable if the claimant's employment is the "major contributing cause" of that condition.

It also appears to me that in cases where the claimant's heart attack or other internal failure arguably results from emotional stress, the burden is on the employer/carrier to prove by medical evidence that the heart attack was caused by "mental or nervous injuries," not on the claimant to prove that his heart attack was not caused by "mental or nervous injuries."

Finally, it seems to me that under the court's holding, even if the employer/carrier does prove by medical evidence that the heart attack was caused by "mental or nervous injuries," it is still compensable if the "mental or nervous injuries" are not "unaccompanied by physical trauma requiring medical treatment." And, since the heart attack itself apparently constitutes the "physical trauma" required by the statute, under what circumstances would a heart attack not be compensable under this statute?

No Action for Defamation Where Attorney's Statements About Claimant's Alleged Fraud Were Pure Opinion

david_mccranie@bellsouth.net (David McCranie) — Tue, 09 Sep 2008 08:12:14 -0500

Dreggors v. Wausau Ins. Co., decided on 8/22/2008, is just the latest in a series of court cases arising out of the alleged commision of workers' compensation fraud by the claimant, his wife, and his attorney. Because the facts are so involved, I simply haven't had time to write about the cases before now, but those interested can read two of those decisions here and here. See also State v. Dreggors, 813 So.2d 170 (Fla. 5th DCA 2002); Horning-Keating v. State, 777 So.2d 438 (Fla. 5th DCA 2001).

This particular case involved an action for defamation by the claimant and his wife against Wausau (the workers' compensation carrier) and Wausau's attorney because of the attorney's statements to Orlando's Channel 9 News in which he described the case against the Dreggors as "the biggest workers' compensation fraud case in the history of Florida." Under Florida law, statements of "pure opinion" are constitutionally protected and are therefore not actionable. Because the Fifth DCA concluded that the attorney's statements were expressions of "pure opinion," the court affirmed the award of summary judgment in favor of the insurer and the attorney.

Burdens of Proof, Standards of Review for Attorney's Fees, Costs

david_mccranie@bellsouth.net (David McCranie) — Tue, 09 Sep 2008 07:53:39 -0500

The standard of review employed by the First DCA is often critical to the outcome of the case. In Moore v. Hillsborough Co. School Bd., for example, the court noted that a JCC's decision denying costs and an upward departure from the statutory attorney's fee schedule (in a pre-2003 case) is reviewed for "abuse of discretion." Under that standard of review, the court held that the JCC did not abuse his discretion in refusing to depart from the statutory fee schedule and in failing to award costs associated with legal assistants where the claimant did not satisfy her burden of proving that the time spent by the assistants was nonclerical.

On the other hand, the court held that the JCC erred "as a matter of law" in declining to award reimbursement for certain deposition costs if the testimony was used in any way to support the award of benefits.

No Voluntary Limitation of Income Where Claimant Unable to Perform His Post-Accident Job

david_mccranie@bellsouth.net (David McCranie) — Tue, 09 Sep 2008 07:09:37 -0500

Although the "voluntary limitation of income" defense to the payment of temporary partial disability ("TPD") benefits was repealed by the legislature in 1994, see Ch. 93-415, §20, p. 2397, Laws of Fla., the courts continue to use the phrase. Perhaps this is explained by the fact that the First District has concluded that despite the repeal, under §440.15(4)(a), Fla. Stat., an injured workers' TPD benefits must still be computed on the basis of what the employee is "able to earn." See, e.g., Fardella v. Genesis Health, Inc., 917 So.2d 276 (Fla. 1st DCA 2005).

In Whitaker v. North American Tank Lines, Inc., decided on 8/15/2008, the First District concluded that the claimant did not voluntarily limit his post-accident income by quitting his job with North American Tank Lines because the job required him to work outside his medical limitations. Therefore, the court reversed the JCC's denial of TPD benefits.

Petition Not Barred by Res Judicata Where Based On Newly Discovered Evidence

david_mccranie@bellsouth.net (David McCranie) — Tue, 09 Sep 2008 01:19:04 -0500

As I discussed here, "res judicata" is an equitable doctrine that bars the re-litigation of claims and issues that have already been litigated. But the doctrine also bars claims and issues that could have been but were not litigated at an earlier proceeding. That's what was at issue in Thomas v. Eckerd Drugs, decided on 8/15/2008.

Ms. Thomas went to a hearing before the JCC in March 2005 with respect to several issues, including the compensability of a lumbar problem allegedly stemming from her otherwise compensable on-the-job accident. Although she had undergone a lumbar MRI scan prior to that hearing, she had never been told the results of the exam. In fact, she had been told by her personal physicians that there was "nothing wrong" with her back. Having no evidence of her true diagnosis or its causal connection to the accident, she therefore dismissed her lumbar claims prior to the hearing.

In fact, however, the scan showed several abnormalities, and when she learned of the results two years later in 2007, she filed a new petition for benefits. The E/C defended the new petition in part on the grounds of "res judicata" and filed a Motion for Summary Final Order in that regard which the JCC granted. The First DCA reversed the summary final order, however, holding that the res judicata defense does not bar a petition where it is based on newly discovered evidence.

Besides the ruling on res judicata, the opinion is noteworthy because it sets forth for the first time the standard of review applicable to review of a JCC's summary final order entered pursuant to Fla. Admin. Code R. 60Q-6.120. Because the rule is substantially equivalent to a summary judgment in a civil case, the court elected to use the standard applicable to reviewing such judgments, i.e., de novo. Under that standard, the appellate court must draw all reasonable inferences in favor of the party opposing the motion. If the evidence is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the trier of fact and should not be decided by way of a summary final order.

Governor Crist Upset with List of Supreme Court Candidates

david_mccranie@bellsouth.net (David McCranie) — Fri, 15 Aug 2008 15:17:08 -0500

The list of applicants to replace Justices Kenneth Bell and Raoul Cantero on the Florida Supreme Court has been narrowed to eight. You can read their names here:

According to this report from the 8/15/2008 edition of the St. Petersburg Times, however, Governor Crist is upset that the list does not include the names of any women or African-Americans. "I've got several concerns about it, so I'm looking at what my options are," Crist is quoted as saying.

First DCA Adopts New Procedures for WC Appeals

david_mccranie@bellsouth.net (David McCranie) — Fri, 15 Aug 2008 11:41:59 -0500

The First DCA is tightening up its procedures for filing briefs and the record on appeal in workers' compensation cases. According to this notice from the court:

Requests for extensions of time to file a brief must state specifically the circumstances justifying such an extension. Motions requesting an extension of time solely on the basis of a "busy schedule" will not be received favorably.
Motions for an extension of time must include the number of days requested and a date certain when the brief will be filed.
Motions for an extension of time, as well as motions relating to the preparation of the record or requesting oral argument, must contain a certificate that opposing counsel has been consulted and whether an objection has been raised.
If additional time is needed to ensure the filing of the record on appeal, a motion for an extension of time to file the record should be made by the appellant or the lower tribunal (or, if an extension is needed for preparation of the transcript, by the court reporter).
Generally, the court will not grant a motion for extension of time which has been filed after the time has expired for serving the brief unless good cause is shown why the filing was untimely.
Extensions for reply briefs will not be granted except upon showing of extreme emergency.

Claimant's Medical Co-Payments Go to the Employer/Carrier

david_mccranie@bellsouth.net (David McCranie) — Thu, 14 Aug 2008 18:13:57 -0500

Section 440.13(14)(c) says that an injured worker must make a $10.00 co-payment for most medical treatment rendered after he reaches maximum medical improvement. So who gets the co-payment? The doctor? The employer/carrier?

Under proposed Fla. Admin. Code R. 69L-7.020, which would adopt the 2008 Edition of the Florida Workers' Compensation Health Care Provider Reimbursement Manual (aka the "fee schedule"), the employer/carrier is the beneficiary. The new fee schedule specifies that "while health care providers are entitled to collect a $10.00 co-payment from injured workers who have reached maximum medical improvement, such co-payments are not in addition to any maximum reimbursement allowance or fee agreement, and that the amount of reimbursement otherwise payable by the insurer shall be reduced by the amount of the co-payment."

A hearing on the proposed rule is scheduled for September 9.

E/C Entitled to Costs Where Claimant Files Voluntary Dismissal

david_mccranie@bellsouth.net (David McCranie) — Tue, 05 Aug 2008 06:06:23 -0500

Under the 2003 amendment to §440.34, costs are awardable against the "nonprevailing party" in workers' compensation litigation. Is the claimant the "nonprevailing party" when he voluntarily dismisses his petition for benefits short of an order on the merits of the petition? Yes, said the First DCA in Palm Beach County School District v. Ferrer, decided on 8/4/2008.