Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

Perhaps no provision of the 2003 amendments to the Florida Workers' Compensation Act has stirred more debate  than the provision limiting attorney's fees to claimant's attorneys.  Florida workers' compensation law has long provided that successful claimant's attorneys are entitled to be paid a fee from the employer/carrier in certain circumstances.  The starting point for determining the amount of that fee was a percentage of the "benefits secured" by the attorney as a result of his efforts. 

But the statute allowed the judge of compensation claims to opt out of those statutory percentages in cases where the amount of the resulting fee would be "manifestly unfair."  Generally, this occurred in cases where the amount of the "benefits secured" was relatively small but the amount of time devoted by the attorney in order to secure those benefits was relatively large.  In these cases, the judge could award a fee based upon the number of hours reasonably devoted by the attorney in prosecuting the claim, multiplied by a reasonable hourly rate.  The ability to deviate from the statutory percentages was necessary, the First District once reasoned, because otherwise in small cases the claimant would be as "helpless as a turtle on its back," i.e., unable to secure competent counsel to represent him.  Davis v. Keeto, Inc., 463 So.2d 368, 371 (Fla. 1st DCA 1985). 

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Suppose an employee contracts an occupational disease which has naturally occurring periods of exacerbation and remission.  In Orange County Fire Rescue v. Jones, the First DCA held 2-1 that each of those periods of exacerbation can constitute a new and separate "accident."

Why is this important?  Well, for one reason, the parties' substantive rights in a workers' compensation case are governed by the law in effect on the date of the "accident."  In this case Mr. Jones, a firefighter, had initially contracted Hepatits C in 1992 when the Florida Workers' Compensation Act provided for the payment of "wage loss" benefits upon attaining maximum medical improvement (MMI).  But those benefits were only payable where the employee had some actual loss of earnings resulting from his accident or disease.  In this case, Mr. Jones returned to work full time as a firefighter after attaining MMI so he didn't qualify for any wage loss benefits.  His disease thereafter went into a period of remission.

By the time his disease flared up in 1997, the law had changed.  In 1994, the legislature repealed the previous "wage loss" provisions and provided instead for the payment of "permanent impairment" (PI) benefits upon attaining MMI.  Unlike wage loss benefits, PI benefits are payable without regard to economic loss.  And following the 1997 flareup, Mr. Jones once again returned to work as a firefighter full time.  Therefore, under the Court's ruling, Mr. Jones' 20% impairment rating following his 1997 flareup resulted in an extra 60 weeks' worth of PI benefits that he wouldn't have gotten had his rights been governed by the 1992 law.

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As in most other states, a Florida employer enjoys immunity from tort liability to its employees for almost all workplace injuries.  Instead, the benefits provided by the Florida Workers' Compensation Act provide the "exclusive remedy" for such injuries.  One exception to that rule of exclusivity, however, applies when the employer has intentionally harmed its employee.  In such cases, the employee is entitled to recover from the employer not just a percentage of his lost wages and his medical bills, but also non-economic damages such as "pain and suffering," "mental anguish," "loss of consortium," and the like.  But what kind of proof is necessary to demonstrate such employer intent?  That issue was the subject of the Florida Supreme Court's 6/21/2007 decision in Bakerman v. The Bombay Company, Inc.

The Court had previously held that where the employer engaged in conduct which was "substantially certain" to cause harm to the employee, then the employer is subject to tort liability for the employee's resulting injuries.  In Bakerman, the Court held 4-3 that in establishing "substantial certainty," the employee need not prove that the employer deliberately concealed a known danger to the employee.

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The one-time-change-of physician provision [s.440.13(2)(f)] applies to all accidents, whether they occurred before the effective date of the statute or not.  That's what the First DCA said in its 2-1 decision in Butler v. Bay Center.  I'll discuss the specifics of this important case below.  But first, a little background.

• THE PRE-1994 LAW

Before 1994, a claimant's right to change physicians was governed by s.440.13(3), Fla. Stat., which provided that "[i]f an injured employee objects to the medical attendance furnished by the employer. . . it shall be the duty of the employer to select another physician. . . ."   Construing that version of the statute, the First District had held that although the Florida Workers' Compensation Act gives the initial right of selection of a treating physician to the employer/carrier, "[i]t. . . reserves to claimant the right to reject such selection, require another authorization, or to seek authorization by the deputy for a physician of claimant's choice."  Teimer v. Pixie Playmates, 532 So.2d 37, 40 (Fla. 1st DCA 1988).  Tiemer further held that under the pre-1994 version of the statute the claimant "has the right to veto the employer and carrier's selection and compel the employer and carrier to authorize another selection."

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In this non-workers' compensation case, the Fourth District Court of Appeal in West Palm Beach has held that a police officer on his way to work while driving a police vehicle was not in the course of his employment at the time of his automobile accident.  Therefore, the City of Hollywood, the municipality for which he worked, was not liable for the injuries sustained by the pedestrian whom he struck and injured in the accident.

In Garcia v. City of Hollywood, Sergeant Redding was on his way to work at 6:00 a.m. in his police vehicle when he struck and injured Rocio Garcia as she was crossing the road to catch her school bus.  The City permitted Redding to take the police vehicle home every evening after his shift and to drive it in to work the next day.  Rocio's parents brought suit against the City, claiming that Sergeant Redding negligently operated his vehicle and that he was in the course of his employment at the time of the accident - thereby rendering the City liable for Rocio's injuries under the doctrine of "respondeat superior." 

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Is a student intern an "employee" of the school where she does her student teaching for purposes of the Florida Workers' Compensation Act?  Nope.  So says the First District Court of Appeal in Orange Co. School Bd. v. Powers, reversing the order of the JCC who had concluded otherwise.  Neither was she a covered "volunteer" under s.440.02(15)(d)6, Fla. Stat.  (The school board had filed a claim for contribution against the University of Central Florida - the university at which the intern was enrolled at the time of her accident - but the JCC denied that claim).

Although not disccussed in the opinion, I believe it raises another interesting point.  If the intern is not a covered "employee," then I don't believe the school board would enjoy immunity from tort liability for these injuries, either.  

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The new firefighters and other "first responders" bill which I wrote about here was signed by Governor Crist on June 8 and has now become Ch. 2007-87, Laws of Fla.  It will be codified as s.112.1815, Fla. Stat.

• EFFECTIVE DATE  

The bill does not provide for a specific effective date, only that it will take effect "upon becoming a law."  Because the Governor approved this legislation on 6/8/2007, I believe that it became effective on that date.  See Negron v. State (holding that when an act provides that it shall become effective "on becoming a law," it becomes effective immediately upon the Governor's approval).

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On June 11, the First District Court of Appeal issued Administrative Order 07-1 in which it announced a new e-filing requirement.  Effective for all cases with a DCA case number of 1D07-3000 and higher, all litigants are encouraged to send a copy of (1) all appellate briefs and (2) all petitions, responses, and replies in original proceedings (petitions for writ of certiorari, prohibition, mandamus, etc.) to the Court via e-mail in addition to the normal number of copies required for that pleading.  The requirement does not apply to motions, etc.  Electronic filings are to be made in Microsoft Word (preferred) or in WordPerfect format.

In addition to their physical address and telephone number, attorneys filing pleadings in compliance with the order must also include their business e-mail addresses on the documents which are filed.

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Does the new minimum wage amendment to the Florida Constitution supersede the statutory requirement of the Florida Workers' Compensation Act that non-professional attendant care be compensated at the federal minimum wage rate?  Yes, say at least two judges of compensation claims.  

Section 440.13(2)(b)1, Fla. Stat. (2006), clearly says that non-professional attendant care provided by an injured worker's family members shall be compensated at the federal minimum wage rate, assuming that the family member is either (1) unemployed or (2) providing the attendant care during his non-working hours.   Currently, the federal minimum wage stands at $5.15 per hour.

Effective 5/2/2005, however, the citizens of Florida adopted an amendment to the state constitution, Article X, Section 24, which requires the minimum wage for all Florida employees to be $6.15 per hour.  The question, then, is whether family members providing non-professional attendant care are to be paid at the Florida or federal minimum wage.   

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If workers' compensation cases in the Florida Supreme Court are rare, they might be even rarer in the federal courts.  But in Locke v. SunTrust Bank, the Eleventh Circuit Court of Appeals in Atlanta has recently weighed in on a question of workers' compensation immunity under the Florida Workers' Compensation Act. 

The plaintiff here was shot during a robbery of the SunTrust bank branch in Winter Haven where she worked.  Rather than claiming workers' compensation benefits, she elected to file a tort suit against her employer.  In order to get around the "exclusive remedy" provisions of s.440.11, Fla. Stat., she alleged in her complaint that SunTrust's actions - or in this case inactions - were so reckless and outrageous that an injury to her was "substantially certain" to have occurred. 

Specifically, she alleged that her branch had been robbed before, during which another teller had been pistol-whipped.  Although SunTrust had allegedly thereafter hired a security guard, the guard wasn't on duty on the day of the robbery here because SunTrust had decided to eliminate the security guard's position "for economic reasons."  SunTrust also allegedly failed to take a variety of other actions which would have protected the plaintiff from harm.  The federal district court dismissed her complaint, but she appealed to the Eleventh Circuit.

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One of the defenses that has become revitalized under the 2003 amendments to the Florida Workers' Compensation Act is that of "misconduct."  This defense was originally enacted in 1989, and had to do primarily with the defense of a "wage loss" claim where the claimant's post-accident employment was terminated because of his own misconduct on the job.  But since the legislature repealed the "wage loss" provisions in 1994,  there apparently hasn't been very much litigation on the topic.

In 2003, however, the legislature enacted s.440.15(4)(e) and specifically made the claimant's post-accident "misconduct" on the job a defense to the payment of temporary partial disability ("TPD") benefits.  But what is "misconduct" exactly?  We now have some guidance from the First District Court of Appeal on that question.

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Speaking of first responders, they were the subject of one of the few legislative changes regarding workers' compensation made by the Florida Legislature in its 2007 regular session.  Specifically, the legislature enacted CS/SB 746, which creates a new statutory provision, §112.1815, Fla. Stat.  This bill:

• Lowers the standard of proof from “clear and convincing evidence” to “a preponderance of the evidence” for first responders in establishing the compensability of occupational diseases or from injuries or diseases resulting from exposure to toxic substances;  
• Eliminates for first responders the requirement of proving a physical injury in order to establish the compensability of a mental or nervous injury, although only medical benefits, not compensation benefits, are payable where there is no physical injury;  
• Eliminates for first responders the 6-month limit on temporary total disability benefits for mental or nervous injuries payable after maximum medical improvement from the responder’s physical injuries imposed by §440.093(3), Fla. Stat.; 
• Eliminates for first responders the 1% limitation on psychiatric impairments imposed by §440.15(3)(c), Fla. Stat.;  
• Provides for the continuation of permanent total supplemental disability benefits after age 62 if the first responder’s employer does not participate in the Social Security program;  
• Provides for the compensability of any adverse result or complication caused by a smallpox vaccination.

The bill is now before Governor Crist awaiting his signature.

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Very few workers' compensation cases make it all the way to the Florida Supreme Court, but this one has.  It’s a complicated tale.

Mr. Flamily, the claimant here, was a firefighter for the City of Orlando who contracted Hepatitis C. (By way of background, since 1995, firefighters and other “first responders” have benefited from a special statute which says that, when a firefighter contracts that disease, it’s presumed that he contracted it as a result of his employment). Mr. Flamily actually retired in 1996 due to disability resulting from heart problems. He settled his workers’ compensation claim arising out of those heart problems later that year for a lump-sum payment of $110,750.00. (There’s another special statute that makes heart problems of firefighters and other law enforcement personnel compensable under the Florida Workers’ Compensation Act without having to comply with the “Victor Wine” rule).

Anyway, although Flamily’s Hepatitis C wasn’t diagnosed until 2000, he was convinced that he had contracted it during his employment with the City (Understandable, really, given the nature of firefighters’ work and the long incubation period usually necessary before symptoms of the disease appear). Trouble was, by the time he was diagnosed, he was no longer an employee of the City. And then there was that pesky 1996 settlement agreement where he had settled all potential work-related claims against the City.

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For over 40 years, heart attacks and other "internal failures of the cardiovascular system" occurring on the job have generally not been compensable under the Florida Workers' Compensation Act.  Known as the "Victor Wine" rule (taken from the name of the case which decided the issue), it required the employee to demonstrate that his heart attack resulted from an "unusual strain or overexertion" not routine to the type of employment he was accustomed to performing - the purpose being to separate those heart attacks that were truly work-related from those that weren't.

In a footnote to this rececent decision, however, one panel of the First District Court of Appeal called into question whether the "Victor Wine" test remains good law.  The Court noted that under this 2003 amendment to the law, an employee must now prove that his on-the-job accident caused more than 50% of his injury and resulting need for treatment.  Requiring him to comply with the "Victor Wine" test as well, said the Court, "seems unduly burdensome and inappropriate."

Resolution of the issue will have to await another day, however.  Because the claimant's accident in that case occurred before 10/1/2003, the effective date of the statutory amendments, the Court concluded that it need not address the question.

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