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

The Third DCA has held that a workers' compensation carrier is entitled to interest on the benefits it has paid for the period of time after the claimant receives the settlement proceeds from his third-party liability claim until the amount of the carrier's lien is determined.  Nevertheless, no interest is payable for the period of time that the settlement proceeds remained in the claimant's attorney's trust account because interest accruing in that account is payable to the Florida Bar Foundation, Inc., not to the claimant.  Interest also should not be paid at the statutory rate set forth in §55.03, Fla. Stat., when the claimant himself did not receive interest at the statutory rate.  Riser v. Hartford Ins. Co.

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According to the Mayo Clinic's website, doctors don't yet know what causes fibromyalgia, a condition whose symptoms can include widespread pain, fatigue and sleep disturbances, irritable bowel syndrome, headaches and facial pain, and heightened sensitivity, among others.  Some experts, however, think the condition can be caused by trauma.  What standards should govern the admissibility at trial of expert testimony in that regard?  Specifically, should such testimony meet standard for admissibility set forth in Frye v. United States that the testimony have gained "general acceptance" in the scientific community? 

In Marsh v. Valyou, decided on 11/21/2007, the Florida Supreme Court said no.  A majority of the Court concluded that the Frye standard should not apply because the testimony of the experts in the case was "pure opinion," that is, it was based upon a review of the plaintiff's medical history, clinical physical examinations, their own experience, published research, and differential diagnosis, and not upon any "new or novel" scientific theory.  The majority further concluded that even if Frye applied, its standards were satisfied by the testimony presented here.

Two of the justices in the majority (Anstead and Pariente), would have gone further and, similar to the United States Supreme Court's holding in Daubert v. Merrell Dow Pharmaceuticals, would have held that Frye has been superseded by the legislature's adoption of the Florida Evidence Code.  

Marsh was not a workers' compensation case, but it's important to workers' compensation practitioners because: (1) the Florida Evidence Code does govern the admissibility of evidence in Florida workers' compensation proceedings [see Odom v. Wekiva Concrete Products, 443 So.2d 331 (Fla. 1st DCA 1983) ]; (2) the Florida Supreme Court has specifically held that Frye applies in workers' compensation proceedings [see U.S. Sugar Corp. v. Henson, ]; and (3) whether an injured worker's fibromyalgia is causally related to the trauma of his industrial accident is not an uncommon dispute in workers compensation cases.

One final note about Marsh: it shows once again the apparent idealogical rift which currently exists on the Florida Supreme Court.  The four-justice majority in Marsh (Chief Justice Lewis, along with justices Anstead, Pariente, and Quince) is the same majority which recently decided to grant review in Murray v. Mariners Health, a fact which I discussed here.

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In Wait v. Travelers Ind. Co. of Illinois, decided on 11/16/2007, the Tennessee Supreme Court held that a telecommuter who was assaulted in her home kitchen by her neighbor while preparing lunch for herself was "in the course of" her employment at the time.  The Court likened the claimant's accident to one occurring in a kitchen or break room on the employer's premises. 

Nevertheless, the Court held that this particular accident was not compensable under the Tennessee Workers' Compensation Act because it did not "arise out of" the claimant's employment.  "There is nothing to indicate [the claimant] was targeted [for the assault] because of her association with her employer or that she was charged with safeguarding her employer's property," said the Court.

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After pleading guilty to charges of conspiracy to defraud a health beneficiary program under 18 U.S.C. §§371 and 1347, two Jacksonville health care providers lost their licenses to practice chiropractic recently. Doll v. Dept. of Health; Schoenborn v. Dept. of Health.

According to the facts found by the administrative law judge, Dr. Doll: (1) caused or allowed claims to be filed with Medicare and other health care benefit programs for diagnostic ultrasound and nerve conduction velocity studies even though he did not contribute his professional expertise to the performance of the tests; and (2) caused or allowed claims to be filed with Medicare and other health care benefit programs for the professional component of MRI tests even though the MRIs were actually read and interpreted by qualified radiologists who were paid by Dr. Doll's company.

The legal issue involved in Dr. Doll's case was whether his 2003 guilty plea in federal court was sufficient justification to revoke his license under §456.072(1)(c), Fla. Stat. (2003), which provides for disciplining a licensee who is "convicted or found guilty of, or entering a plea of guilty or nolo contendere to. . . a crime. . . which relates to the practice of. . . a licensee's profession."  The First DCA rejected Dr. Doll's argument that the crime to which he plead guilty did not "relate to" the practice of his profession.

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The Florida Supreme Court recently declined review in two cases and accepted review in another where the employees had alleged that their employers were guilty of committing an intentional tort against them.

In Pendergrass v. R.D. Michaels, Inc., the Fourth DCA held that the estate of a worker killed in a construction accident had no cause of action in tort against his corporate employer under the "criminal acts" exception to §440.11 because that exception applies only to individuals.  The Court also held that even though OSHA had cited the employer for a "wilful violation" of an OSHA regulation, that fact was insufficient to show a "substantial certainty" that the violation of that regulation would result in injury or death.

In Bourassa v. Busch Entertainment Corp., the Second DCA held that the employer was not liable in tort where an animal trainer lost her arm in an accident while working with a lion.  Although the employer knew the lion was extremely dangerous, it had a comprehensive training program for employees working with the lion and there had been no previous incidents involving the animal.

You can read the orders declining to grant review here and here.

But in Casas v. Siemens Energy and Automation, Inc., the Supreme Court quashed the 2006 decision of the Third DCA and remanded the case to the court for reconsideration in light of its recent decision in Bakerman v. The Bombay Co., Inc.  In the decision below, the Third DCA held that the employee's tort claim against his employer was barred because there was no proof that the employer had deliberately concealed the risk of injury from the employee.  But in Bakerman, the Supreme Court held that an employee need not present such proof in order to avoid the exclusive remedy provision of §440.11.

Note:  Casas, like Bakerman, involved an accident that occurred prior to the 2003 amendment to §440.11.  Under that amendment, proof of intentional concealment of the risk of injury by the employer is a necessary element of proof if the employee is to escape the exclusive remedy provision.

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Matrix Leasing Company has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court in Blue Stone Real Estate v. Ward, a 7/20/2007 decision from the First DCA which I wrote about here.  You may recall that in that case the First District held that Ward, an employee of Matrix whose services were leased to E&L Concrete Pumping, Inc., remained an employee of Matrix even though E&L had requested that its account with Matrix be considered "inactive."  Why?  Because Matrix did not notify Ward that its leasing contract with E&L had been terminated as required by §468.525(4)(f).

Matrix alleges that the Supreme Court has jurisdiction to review the First DCA's decision on the grounds that it conflicts with one of the First DCA's own previous decisions and because the decision "expressly declares valid a state statute."  See Art. V, §3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(i).   You can read Matrix's brief on jurisdiction here.

Both Ward and Blue Stone dispute these asserted bases for jurisdiction.  You can read their jurisdictional briefs here and here.

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The plaintiff in Perez v. La Dove, Inc., a decision from the Third DCA which I wrote about here, has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court.  The basis alleged for Supreme Court jurisdiction is that the Third DCA's decision "expressly and directly" conflicts with the Fourth DCA's decision in Builder's Square v. Shaw, 755 So.2d 721 (Fla. 4th DCA 1999). 

The issue is whether an employee has a viable claim for "spoliation of evidence" against his employer for failure to preserve evidence relevant to his third-party liability claim if he never actually requested the employer to preserve such evidence.  In Shaw, the Fourth DCA held that the employer's duty to preserve relevant evidence arises even in the absence of an express request by the employee to do so under circumstances where the employer reasonably should know that such litigation is likely to occur.  You can read Perez's brief on jurisdiction here.

La Dove, Inc., has filed a brief disputing that the Supreme Court has jurisdiction.  According to their jurisdictional brief, the Fourth  DCA has actually receded from its Shaw decision in Royal & Sunalliance v. Lauderdale Marine Center, 877 So.2d 843 (Fla. 4th DCA 2004). Therefore, says the employer, there is no inter-district conflict. You can read their brief here.

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(Cont'd from Part III)

As I said earlier, it’s anyone’s guess how the Florida Supreme Court will ultimately rule on the merits of Murray, but if previous 4-3 decisions from the Court where Chief Justice Lewis and Justices Anstead, Pariente, and Quince were in the majority are any guide, I think proponents of the amendment have reason to worry.

I base that conclusion on the fact that the views of these same four justices have carried the day against the views of the other three in these cases (in reverse chronological order):

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(Cont'd from Part II)

SUPREME COURT REVIEW IN MURRAY AND BUITRAGO

In Murray, in addition to filing her notice to invoke the discretionary jurisdiction of the Supreme Court on 2/8/2007, she also filed with the Court a motion entitled “Motion to Determine Whether Jurisdictional Brief is Due and Motion for Extension of Time to Serve Jurisdictional Brief if Due.” (SC07-244).  By order dated 4/17/2007, the court entered an order once again declining review on the basis of the certified question but ordering the parties to submit jurisdictional briefs “as to the validity basis only.”

So did the First DCA in Murray “expressly declare valid” the 2003 amendment to §440.34?  The employer/carrier argued in their jurisdictional brief that it did not.  Rather, they argued that the First DCA’s decision was in essence just a “citation PCA.”  See Gandy v. State, 846 So.2d 1141, 1144 (Fla. 2003)(holding that “we do not have jurisdiction to review per curiam unelaborated denials of relief from the district courts of appeal that. . . merely cite to a case not pending on review in this Court, or to a statute or rule of procedure, and do not contain any discussion of the facts in the case such that it could be said that the district court ‘expressly addresse[d] a question of law within the four corners of the opinion itself’” (Emphasis added)).  Though the First DCA’s Murray decision does note that the claimant’s constitutional challenges to the amendment were previously considered and rejected by the court in Lundy and Campbell, it contains no discussion of the facts of the case whatsoever.

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(Cont'd from Part I)

JURISDICTION OF THE FLORIDA SUPREME COURT

The Court’s mandatory appellate jurisdiction is actually quite limited. The court is required to hear an appeal only if it involves a death sentence, if it is a decision of a district court of appeal which declares invalid a state statute or state constitutional provision, or if it is a decision involving a bond validation or rates which public utilities may charge. See Art. V, §3(b)(1) and (2), Fla. Const.; Fla. R. App. P. 9.030(a)(1).

The Court’s entire remaining appellate jurisdiction is discretionary.  Except for situations not relevant here, the Court’s discretionary jurisdiction is limited to reviewing decisions of a district court of appeal (“DCA”) that: (1) “expressly declare valid a state statute;” (2) “expressly and directly conflict” with a decision of another DCA or of the Supreme Court; or (3) pass upon a question certified by the DCA to be one “of great public importance.” See Art. V, §3(b)(3), Fla. Const., Fla. R. App. P. 9.030(a)(2). 

The party seeking to invoke the Court’s discretionary jurisdiction under grounds (1) or (2) above are required to file jurisdictional briefs with the Court to explain not only why the Court has jurisdiction, but why the Court should exercise its discretion and hear the case. Jurisdictional briefs are not required, however, under scenario number (3) where the DCA has certified that its decision passes upon a question of great public importance. In fact, they aren’t even permitted. See Fla. R. App. P. 9.120(d).

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The Florida Supreme Court has now agreed to consider the constitutional validity of the 2003 amendment to §440.34, Fla. Stat., which took away the JCC's discretion to award claimant's attorney's fees in excess of a percentage of the "benefits secured" by the attorney.  It’s anyone’s guess how the Court will ultimately decide the case of Murray v. Mariners Health, of course, but if other recent Supreme Court decisions and the proceedings in the case thus far are any indication, the Court’s 4-3 decision to accept review in the case might not bode well for proponents of the amendment. (Previous posts on this issue can be found here, here, and here).  In the next few posts, I’ll try to explain why I think that might be so.

CHALLENGES TO THE 2003 AMENDMENT TO DATE

First, let’s look at the challenges to the amendment thus far and the reasons why the Supreme Court may have declined review up until now.  To date, the First DCA has considered and rejected such challenges in seven different cases involving written opinions. They are (in chronological order): (1) Wood v. Florida Rock Industries; (2) Lundy v. Four Seasons Ocean Grand Palm Beach; (3) Campbell v. Aramark; (4) Buitrago v. Landry’s; (5) Murray; (6) La Petite Academy v. Duprey; and (7) Payne v. Wal-Mart.

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