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

Although this isn't a workers' compensation case, I think it illustrates how an employer's decision to terminate a disabled worker's employment for violation of  one of its policies can have unintended consequences.

This Florida employer had adopted what it called a "no-fault" policy for absences and tardiness.  Under its policy, an employee's absence from or tardiness to work was neither "excused" nor "unexcused."  No doctor's excuse was required.  However, each employee was allotted a certain number of "occurrences" before disciplinary action was taken, and each tardy - no matter what the reason - counted as one-half of an "occurrence."  The employee in this case was a paraplegic who despite his condition had been performing his job satisfactorily for 17 years.  Nevertheless, his medical problems routinely made him late for work.  Because of his disability-related tardiness, he eventually earned a sufficient number of "occurrences" under the employer's new policy to warrant his dismissal.

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This case reminds us that in setting the amount of attorney's fees owed to the claimant's attorney under the pre-2003 version of s.440.34, Fla. Stat., the JCC is bound by the evidence before him and may not use his own, independent judgment regarding the number of hours reasonably expended by the attorney or a reasonable hourly rate.

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The federal minimum wage increases today from $5.15 per hour to $5.85 per hour.  That means that compensation for non-professional attendant care also increases because it is tied to the federal minimum wage by s.440.13(2)(b)1, Fla. Stat.  Or, as I wrote about here, if you believe that s.440.13(2)(b)1 has been superseded by the 2005 amendment to the Florida Constitution (Article X, s.24) which mandates a higher minimum wage in Florida, then the compensation rate for non-professional attendant care currently stands at $6.67 per hour.

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When settling a claimant's right to future benefits arising under the Florida Workers' Compensation Act, it has become standard practice for the employer/carrier also to require the claimant to execute a "general release" of any other employment-related claims which he might have as well.  The effectiveness of this practice has been called into question, however, in a recent case from the Fourth Circuit Court of Appeals.

The Family and Medical Leave Act of 1993 (FMLA) allows an employee to take up to 12 weeks of unpaid leave during any 12-month period for, among other things, a "serious health condition."  As the FMLA Blog points out in this post, a federal regulation, 29 C.F.R. s.825.220(d), provdes that "[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA."  In Taylor v. Progress Energy, Inc., decided on 7/3/2007, the Fourth Circuit Court of Appeals held that this regulation means exactly what it says - it prohibits an employee from waiving his FMLA rights without approval by a court or by the Department of Labor.

The Eleventh Circuit Court of Appeals (which covers Florida) has not addressed this question.  But if the Fourth Circuit's reasoning is adopted, then post-accident agreements which purport to release an employee's rights under the FMLA without prior approval will be ineffective.

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An employee-leasing company must directly notify each leased employee - not just the client company - when it terminates its leasing contract with the client company.  If it doesn't, the leasing company will still be regarded as the employer for purposes of the Florida Workers' Compensation Act when the non-notified employee is injured on the job.  So says s.468.525(4)(f), Fla. Stat.,  and the First District Court of Appeal in Blue Stone Real Estate v. Ward, decided on 7/20/2007.

The leasing company here (Matrix Leasing) agreed to employ the claimant (Ward) and the owner (McMahon) of the two-man client company (E&L Concrete) and to "lease" the two back to the client company in July 2004.  After a few months, both McMahon and Ward left Florida and went to New York to work, at which time McMahon requested Matrix to consider E&L's account "inactive" while he was away.  Matrix Leasing apparently did so, but it never formally notified Ward that its contract with E&L had been terminated.  McMahon and Ward returned to Florida in December 2004, and E&L then contracted with Blue Stone Real Estate to perform some construction work.  It was while he was doing that work that the claimant was injured on 12/13/2004.

 The JCC's decision can be found here.  He had concluded that Blue Stone Real Estate - which carried no workers' compensation insurance - was the claimant's employer at the time of his accident.  But the First District said that Matrix Leasing's failure specifically to notify the claimant that it had terminated its contract with E&L meant that Matrix still employed the claimant at the time of his accident.

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On 7/13/2007, the Florida Supreme Court denied review in Duprey v. La Petite Academy, a case which involved the consitutionality of the 2003 amendment to the attorney's fees provision of the Florida Workers' Compensation Act, and which I wrote about here.  That leaves only Murray v. Mariners Health (Case No. SC07-244) and Buitrago v. Landry's (Case No SC07-762) still pending before the Court on this question.

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Here's an interesting case from the Sixth Circuit U.S. Court of Appeals, decided on 7/10/2007.  The plaintiffs there were injured workers who alleged that, in order to deprive them of benefits under the Michigan Workers' Disability Compensation Act,  their self-insured employer, its workers' compensation servicing agent, and the authorized treating physician had sent fraudulent communications among themselves and to the plaintiffs by mail and by wire in violation of federal law, and that these violations constituted the  "predicate acts" necessary to state a civil cause of action against them for violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO").

In a 2-1 decision, the Sixth Circuit affimed the federal district court's dismissal of the complaint for failure to state a cause of action - but not because the plaintiffs' allegations of mail and wire fraud were insufficient.  Under the law prevailing in the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee), a plaintiff alleging a RICO violation must allege and prove that he relied upon the defendants' alleged fraudulent acts.  [RICO provides a private right of action and treble damages for "any person injured in his business or property by reason of a violation" of the act].  Because allegations of detrimental reliance were absent from the plaintiffs' complaint, the appellate court agreed that the complaint failed to state a cause of action.  Nevertheless, two of the three judges argued that the issue should be considered by the entire Court sitting en banc. 

Thanks to How Appealing for the heads up on this case.

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In Escambia Co. Sheriff's Dept. v. Grice, the Florida Supreme Court held that the three-way combination of an injured worker's permanent total disability benefits, social security disability benefits, and in-line-of-duty disability benefits [see s.121.091(4)] may not exceed 100% of the worker's average weekly wage.  To the extent that they do, workers' compensation benefits must be reduced.  The policy underlying the decision was to prevent the injured worker from collecting more in disability benefits than he did in wages while working.

Just exactly what benefits get thrown in to the "Grice" calculation, however, has been the subject of extensive litigation since the decision was rendered in 1997.  Social security retirement benefits are not.  See Dixon v. Pasadena Yacht & Country Club, 731 So.2d 141 (Fla. 1st DCA 1999).  Neither is the health insurance subsidy received by workers entitled to in-line-of-duty disability benefits.  See State v. Herny, 781 So.2d 1067 (Fla. 2001).

But in State of Florida Marine Patrol v. Clifton, decided on 7/6/2007, the First District reversed the order of the JCC and held that Social Security disability benefits which are received by the claimant's dependents are included in the offset calculations.  The Court noted that unlike the benefits at issue in Dixon and Herny, the benefits payable to the claimant's children in this case were payable solely because of the claimant's disability.

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In 2003, the Florida Legislature amended §440.15(1)(f), the statute providing for so-called "supplemental benefits" in cases where the injured worker has been rendered permanently totally disabled as a result of his on-the-job accident.  Initially enacted in 1974, that statute provided for an annual 5% increase in the amount of the workers' weekly permanent total disability benefits.  Under a 1990 amendment, entitlement to these benefits terminated when the worker reached age 62 "if the employee is eligible for social security benefits under 42 U.S.C. ss. 402 and 423" (Emphasis added).

Under the 2003 amendment to the statute (Ch. 2003-412, s.18, Laws of Fla.), annual increases are now limited to 3%, and entitlement to those benefits now terminates at age 62 "regardless of whether the employee has applied for or is eligible to apply for" either social security disability or retirement benefits (Emphasis added).

In Wood v. Winter Garden Citrus Growers, the claimant was 66 years old when she was injured on 12/16/2003.  She was accepted as permanently totally disabled by the employer/carrier when she was 67 years old.  Under the First DCA's interpretation of the pre-2003 statute, she would have been eligible for PTD supplemental benefits.  See Burger King v. Moreno, 689 So.2d 288 (Fla. 1st DCA 1997).  Under the 2003 version of the statute, however, she was completely ineligible for PTD supplemental benefits, and she contended that the statutory amendment unconstitutionally denied her the equal protection of the law because it discriminated against her solely on the basis of her age.

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Alex Sink, Florida's chief financial officer, has ordered a 50% cut in the assessment paid by workers' compensation insurance carriers into the state's Workers' Compensation Administration Trust Fund which, among other things, funds vocational rehabilitation, some permanent total supplemental benefits, and the Bureau of Workers' Compensation Fraud.  Ms. Sink estimates that this cut will save Florida employers about $19 million.  You can read about it here.

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Since 1979, the First District Court of Appeal in Tallahassee has had exclusive, statewide jurisdiction over all workers' compensation appeals.  But that will change if a South Florida claimant has his way.  On 6/15/2007, in Saldana v. Miami-Dade County, Florida (large file, be patient), the claimant filed a petition for writ of prohibition in the Florida Supreme Court in which he challenges the constitutionality of s.440.271, the statute which grants such exclusive appellate jurisdiction.

Florida has five intermediate appellate courts which divide the state geographically.  Most appeals from trial courts around the state are filed in the district court of appeal in the geographic area of the state where the trial court sits.  But not workers' compensation appeals.  As part of the 1979 overhaul of the Florida Workers' Compensation Act, the Florida Legislature enacted s.440.271, which says that all workers' compensation appeals must be filed in the First DCA in Tallahassee.  Why was this done?  Well, for one thing, the Legislature believed that it would be better for one court to develop special expertise in this area of the law.  The intent also was to cut down on the number of workers' compensation appeals being filed in the Florida Supreme Court.  By limiting appeals to one district court of appeal - thus eliminating the possibility of inter-district conflict - the Legislature accomplished this goal.

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On 6/29/2007, the Florida Supreme Court denied review in the Butler v. Bay Center case which I wrote about here.  Therefore the decision of the First DCA, which held that the one-time-change-of-physician provision is to be applied retroactively, stands.

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