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

In what will surely be a closely watched case, the Florida Supreme Court on 10/30/2007 agreed to accept jurisdiction in Murray v. Mariners Health, a case which I wrote about here.  As it had in several other cases, the First District Court of Appeal in Murray rejected a constitutional challenge to the 2003 amendment to §440.34, Fla. Stat.  That amendment restricted the amount of attorney's fees which may be awarded to a successful claimant's attorney to a percentage of the value of the benefits secured by the attorney. 

You can read the Supreme Court's 4-3 decision agreeing to accept jurisdiction here.  As they have recently, the justices once again split along ideological lines.  The majority (Chief Justice Lewis, along with Justices Anstead, Pariente, and Quince) which agreed to accept jurisdiction is the same majority which recently prevailed in the "impact rule" cases which I wrote about here.

The Petitioner's Initial Brief is due to be served on 11/26/2007.  Oral argument is scheduled for 4/9/2008 at 9:00 a.m. in Tallahassee.

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In these four consolidated cases, the First District Court of Appeal said that the JCC should have granted the claimants' motions to disqualify him from adjudicating their claims.  The motions alleged that the judge should have disqualified himself because of prejudicial remarks which he allegedly made about the claimants' attorney and others who testified against his re-appointment as a judge.  Under Fla. R. Jud. Admin. 2.330(f), a judge ruling on a motion to disqualify "shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged."   

You can read the motions to disqualify, along with the JCC's orders denying them, here, here, here, and here.

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As I wrote here, when an injured worker agrees to a "washout" of his rights to past and future benefits for an on-the-job accident pursuant to§440.20(11), Fla. Stat., employers and carriers in Florida also routinely require the execution of a "general release" in which the injured worker waives his right to any other employment-related claims as well.  Are such "general releases" really effective to waive all such claims?  In Taylor v Progress Energy Inc., the Fourth Circuit Court of Appeals held that a release in which the employee purported to waive his FMLA rights as part of a severance agreement was ineffective because it was obtained without either court approval or the approval of the Department of Labor.

Progress Energy has now filed this petition for writ of certiorari in the Supreme Court of the United States seeking review of the Fourth Circuit's decision.  The petition alleges that the Fourth Circuit's decision is in conflict with the Fifth Circuit Court of Appeals' decision in Faris v. Williams WPC-I, Inc.  For more on the petition and this issue, see this post at SCOTUSblog.

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I wrote here about the 10/8/2007 hearing before the Office of Insurance Regulation regarding NCCI's proposed rate reduction of 16.5% for workers' compensation insurance for 2008.  Now, in this order dated 10/22/2007, Commissioner Kevin M. McCarty has rejected that proposed reduction and has ordered an 18.4% reduction instead.

You can read the Office of Insurance Regulation's press release here.

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The Medicare Secondary Payer Act [42 U.S.C. §1395y(b)(2)] prohibits Medicare from paying a Medicare beneficiary's medical expenses when payment "has been made or can reasonably be expected to be made under a workmen's compensation plan. . . ."  So when an injured worker settles his right to receive future medical care from the employer/carrier under the Florida Workers' Compensation Act, Medicare requires that its interests be considered in the settlement.  See 42 C.F.R. §§411.46 and 411.47.  In other words, Medicare will look with disfavor upon any attempt to shift responsibility for the claimant's future work-related medical expenses from the employer/carrier to Medicare.  Consideration of Medicare's interests is accomplished through the use of a "Medicare Set-Aside Arrangement" whereby a portion of the settlement proceeds are allocated ("set aside") to cover the claimant/beneficiary's future work-related medical expenses.  Once the money set aside for that purpose has been exhausted, Medicare becomes responsible for paying for all Medicare-covered expenses, even if they are work-related.

Unfortunately, obtaining Medicare's approval of any proposed set-aside arrangement often involves significant delay.  And Medicare currently requires a set-aside arrangement if the claimant (a) is currently a Medicare beneficiary and the proposed settlement is greater than $25,000 or (b) has a "reasonable expectation" of becoming a Medicare beneficiary within 30 months from the date of settlement and the amount of the settlement is expected to be greater than $250,000.

A bill introduced in the House of Representatives on 5/24/2007, the "Medicare Secondary Payer and Workers' Compensation Settlement Agreements Act of 2007" (H.R. 2545), is intended to offer some relief in that regard.  Under this proposed legislation, workers' compensation settlements of less than $250,000 (payable either in a lump sum or through an annuity whose present value is less than $250,000) would not require Medicare approval.  For an excellent summary of this bill, see this post at the Traumatic Brain Injury Law Blog.

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In Willis v. Gami Golden Glades, LLC. and Florida Department of Corrections v. Abril, both decided by  4-3 majorities on 10/18/2007, the Florida Supreme Court limited the circumstances under which a plaintiff's recovery for psychological injuries in a personal injury case can be barred by the "impact rule."  Although neither of these decisions is a workers' compensation case, I think they could have an "impact" on an employee's ability to recover from his employer for workplace injuries due to "fright or excitement only" in some cases.

So what is the "impact rule?"  It's the court-made rule which says that a personal injury plaintiff may recover against a negligent tortfeasor for psychological injuries only if those injuries are accompanied by some physical "impact." [The impact rule doesn't apply to intentional tort cases like defamation, intentional infliction of emotional distress, breach of fiduciary duty, etc.].  Just how much of an "impact" is required in order to permit the award of damages for mental injuries in these cases?   That's what was at issue in Willis.

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Although the benefits provided by the Florida Workers' Compensation Act ordinarily are a Florida employee's "exclusive remedy" against his employer for workplace injuries, the employee retains his right to bring a tort action against any "third party tortfeasor" whose wrongful conduct caused those same injuries.  In order to prevent the employee from recovering twice for the same injuries in such cases, §440.39, Fla. Stat., provides that the employer (or its workers' compensation carrier) may assert a lien against the proceeds of any employee verdict against or settlement with the third party. Determining the amount of the carrier's lien in such cases - particularly in cases where the third-party action is settled before trial - often leads to confusion.

Luscomb v. Liberty Mutual Insurance Company, decided by the Third DCA on 10/17/ 2007, provides a good example.  Here's what happened:  Luscomb was seriously injured in an on-the-job accident while working for Raven Transport Company.  Liberty Mutual (Raven's workers' compensation insurance carrier) provided benefits to and on behalf of Luscomb on account of the accident.  In July 2003, Luscomb filed a tort claim against BJ's Wholesale Club and BJCR, Ltd., contending that their negligence was responsible for his injuries.  As it is required to do, Liberty Mutual filed a notice in that case of its workers' compensation lien. 

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This post is slightly off the topic of Florida workers’ compensation law, but I wrote here about the debate over whether an employee has committed “fraud” under §440.105(4)(b)9 - thereby justifying the termination of his workers’ compensation benefits pursuant to §440.09(4) - if he has deliberately provided his employer with false evidence of his identity in the form of a fake Social Security number. But what if the employer actually knows or has reason to know that the Social Security number is a fake and continues the claimant’s employment anyway? Should an employer (or its carrier) be able to profit by denying the compensability of an otherwise compensable workers’ compensation claim based on such “fraud” if the employer itself had knowledge of the “fraud” all along? Obviously, all of this is tied in with the current national debate over illegal immigration and what should be done about it. 

Actually, 8 U.S.C §1324a(a)(2) makes it unlawful for an employer either to “hire” or to “continue to employ” an alien “knowing the alien is (or has become) an unauthorized alien with respect to such employment.” The key word here is the word “knowing,” because 8 C.F.R. §274a.1(l)(1), the regulation implementing the statute, defines “knowing” as having either “actual” or “constructive” knowledge.

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Louis F. Tidwell, a former judge of compensation claims, is in trouble with the law again.  Judge Tidwell was removed from the bench and disbarred following his 1991 conviction for having sex with a 14-year-old girl and smoking crack cocaine. 

Now he's been arrested and charged with practicing law without a license.  Here's the story from the 10/12/2007 edition of the St. Pete Times.

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Unless a petition for benefits is filed within two years from the date of accident, or within one year from the date that the employer last pays compensation or furnishes medical treatment, whichever occurs later, the statute of limitations will expire on a Florida workers' compensation claim. In Troche v. Geico, however, decided on 10/5/2007, the First DCA relied upon a long line of previous decisions and held that in cases involving "repeated trauma," "exposure," or "occupational disease," the statute of limitations never expires so long as the employee continues to be exposed to the harmful conditions which caused his disability in the first place because each exposure in effect constitutes a "new accident."

The claimant in Troche had developed carpal tunnel syndrome in both wrists as a result of using his computer at work.  The carrier established a 1999 accident date and provided some brief medical care thereafter, but the claimant did not file his petition for benefits until 12/4/2003, well after the limitations period ordinarily would have expired.  The evidence showed, however, that he continued to be employed and exposed to the harmful conditions on the job until September 2003.  Therefore, said the First DCA, his petition was timely.  You can read the JCC's order here.

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In Orange Co. School Bd. v. Powers, a case which I wrote about here, the First District Court of Appeal held that a student intern was not an "employee" of the school board for purposes of the Florida Workers' Compensation Act.  The Florida Supreme Court has now denied review of that decision.  As a basis for supreme court jurisdiction, the claimant had maintained in her jurisdictional brief that the First DCA's decision conflicted with a 1996 decision from the Fifth DCA, which held that a student intern with the Orlando Magic was an "employee" of the Magic and thus was barred by the exclusive remedy provision from filing a personal injury suit against them.

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Other than perhaps that of attorney's fees, probably the hottest topic in Florida workers' compensation law over the last few years has been that of "fraud."  Section 440.105(4)(b)1, Fla. Stat., makes it unlawful for "any person" to "knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter."  In turn, §440.09(4)(a), Fla. Stat., requires a complete forfeiture of any further workers' compensation benefits - both indemnity and medical - upon a judicial determination that the employee "has knowingly or intentionally engaged in any of the acts described in s.440.105 or any criminal act for the purpose of securing workers' compensation benefits."

In addition, however, §440.105(4)(b)9, Fla. Stat., makes it unlawful for any person to "knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a claim for workers' compensation benefits"  (Emphasis added).  So what if an employee is injured on the job and the employer/carrier later discover that the employee provided a false Social Security number to the employer when he commenced his employment?  Does he forfeit his entitlement to workers' compensation benefits as a result?

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Writing workers' compensation insurance in Florida has become highly profitable over the last few years - so much so that Florida employers deserve a premium decrease of another 36.3%.  That's the conclusion of this actuarial analysis prepared by the Florida Insurance Consumer Advocate.  The National Council on Compensation Insurance (NCCI) has proposed an average premium decrease of 16.5% for Florida's employers commencing on 1/1/2008.  That's not enough, says the report which concludes

• It should be evident from the above analysis that writing workers' compensation insurance in Florida is a low-risk, highly profitable business that does not require large amounts of capital to cushion potential unexpected claims or expenses.  Claims results from year to year are highly predictable based on historical performance over the last several years and are improving with no reversal on the horizon. . . .If the full recommended reduction of 36.3% is not approved, then insurers will in effect be allowed to earn profits on excess surplus that is not necessary to support their premium writings.

A rate hearing is scheduled for 10/8/2007 before Florida's Office of Insurance Regulation.  Largely as the result of the 2003 legislative reforms, over the last few years that office has approved premium reductions of 14.0% (10/1/2003), 5.1% (1/1/2005), 13.5% (1/1/2006), and 15.7% (1/1/2007).

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I wrote here about SB 1440 and HB 301, two bills which were introduced during the 2007 legislative session which would have brought cancer within those conditions which are presumptively caused by a firefighter's employment.  It seems that Florida isn't the only state considering such legislation.  In fact, Washington, Vermont, and Colorado have now actually enacted similar provisions into law in those states.

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This case caused quite a stir a while back.  The Ohio Supreme Court determined last December that a 16-year-old KFC worker should be denied workers' compensation disability benefits after he was badly burned while cleaning a cooker at work.  The teenager had ignored repeated warnings from his employer not to boil water in the cooker in order to clean it.  The majority held that by ignoring his employer's warnings he had "voluntarily abandoned his employment" and that he should be denied disability benefits as a result.  To critics and to the dissenting judges, however, the majority decision was inconsistent with a basic tenet of workers' compensation law, i.e., that it's supposed to be a "no-fault" system.

But now the Ohio court has reversed itself in this opinion issued on 9/27/2007, holding on motion for reconsideration that  Ohio's "voluntary abandonment of employment" doctrine should be applied only to post-accident, not to pre-accident conduct.  The concurring opinion by Judge Pfeifer is amusing.  He ridicules the remaining dissenting judges as "Chicken Littles" who "predict a workplace apocalypse, where employees bob for drumsticks in hot oil, ultimately resulting in an increase in the price of a bucket of 'extra crispy.'"

In Florida, I suspect that this issue would be governed by §440.09(5), Fla. Stat., which provides not for a complete denial of compensation, but for a 25% reduction in compensation benefits in cases where a worker is injured because of his "knowing refusal" to use a "safety appliance provided by the employer" or by his refusal to "observe a safety rule required by statute."

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