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

The claimant/plaintiff in Tractor Supply Company v. Kent, a case which I wrote about here, has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court.  In that case, the Fifth District Court of Appeal held that just because a workers' compensation carrier has previously denied an employee's workers' compensation claim, the employer is not necessarily estopped from asserting workers' compensation immunity as an affirmative defense to the employee's subsequent liability claim against the employer. 

Kent argues that the Fifth District's decision "expressly and directly conflicts" with three previous decisions from the First District Court of Appeal.  (I had suggested in my initial post that the Fifth District's decision in Kent was actually inconsistent with its own previous decision in Byerly v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999).  Even if true, however, intra-district conflict is insufficient to permit Supreme Court review.  There must be inter-district conflict in order for the supreme court to have jurisdiction under Art V, §3(b)(3), Fla. Const.).  You can read his jurisdictional brief here.

The employer/defendant, of course, suggests there is no conflict.  You can read the employer's jurisdictional brief here.

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Is a workers' compensation settlement agreement which purports to release the employer along with "its subsidiaries, affiliates, [and] parent companies" broad enough to release not only the employer from further liability under the Florida Workers' Compensation Law, but also the employer's sister corporation from the claimant's tort claim against the sister corporation?  Yes,said the First District Court of Appeal in Churchville, et ux v. GACS, Inc., a 2-1 decision issued on 1/23/2008.

Both judges in the majority agree that the term "affiliate" was unambiguous and that therefore the Churchvilles' tort claim against GACS, his employer's sister corporation, was barred by the release which he had executed in favor of his employer, Allied Systems, Ltd.  The two judges in the majority don't agree on the precise reasoning in that regard, however.  Judge Wolf uses a rule of statutory construction known as noscitur a sociis - meaning that "a word is known by the company it keeps."  Judge Wolf reasons that because the word "affiliate" appears in the release along with the terms "subsidiaries" and "parent companies," an "affiliate" is an entity which is neither a "subsidiary" nor a "parent company."  Judge Wolf also concludes that "[w]hile the Release does not specifically mention the pending tort claim, the language of the Release belies the assertion that the tort claim was not to be covered by the Release."

Judge Van Nortwick, on the other hand, concludes that because the term "affiliate" is unambiguous it is therefore unneccessary to resort to rules of statutory construction like noscitur a sociis.

Dissenting, Judge Browning reasons that the term "affiliate" was ambiguous and that it was therefore improper to grant summary judgment on the Churvilles' tort claim against GACS. 

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"In any dispute concerning overutilization, medical benefits, compensability, or disability benefits under this chapter, the carrier or the employee may select an independent medical examiner."  So begins §440.13(5), Fla. Stat.  Nelis Pena, an injured worker, filed a petition for benefits claiming entitlement to various disability benefits under the Florida Workers' Compensation Law and subsequently filed this Motion to Compel the Employer/Carrier to provide a psychiatric independent medical examination ("IME").  The JCC denied the motion, and Pena therefore filed this petition for writ of certiorari with the First District Court of Appeal.  According to the argument contained in the petition, the Employer/Carrier had argued that the Claimant was not entitled to an IME because there was no "dispute" concerning either "overutilization, medical benefits, compensability, or disability."  In any event, the Employer/Carrier confessed before the First District Court of Appeal that the JCC had committed error, and the Court therefore granted the petition in a short opinion dated 1/23/2008.  Pena v. Tampa Maid Foods, Inc.

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Section 440.19(1) and (2), Fla. Stat., says that a petition for benefits is barred by the statute of limitations unless it is filed within two (2) years from the date of accident, or within one (1) year from the time the employer last paid compensation or provided medical care to the claimant, whichever is later.  But if an employer misleads the claimant - even unintentionally - regarding his rights under the law so that he fails to file his petition timely, the courts will hold that the employer/carrier is "estopped" from asserting the defense.  That's what happened in Roberson v. St. Johns Co. School Board, Case No. 1D06-5839, decided on 1/23/2008.

Ms. Roberson sustained a work-related accident which was initially accepted as compensable by the Employer/Servicing Agent ("E/SA).  Later, however, the E/SA filed a Notice of Denial (Form DWC-12) in which they denied that further compensation benefits or medical care were due because Roberson's disability allegedly resulted from a pre-existing condition.  The next day, the E/SA filed with the Division of Workers' Compensation and forwarded to Ms. Roberson a Notice of Action Change (Form DWC-4) in which it reported that her permanent injury rating was zero percent.  Three weeks later, however, the E/SA received from Ms. Roberson's treating physician a report (Form DWC-9a) indicating that she had in fact sustained a 10% permanent impairment.  The E/SA did not file that form with the Division of Workers' Compensation or send a copy of it to Roberson.

Roberson eventually learned about the physician's report and filed a petition for benefits, but not until after the statute of limitations ordinarily would have run.  The First District Court of Appeal held that because Roberson had no reason to know of her physician's 10% rating and the E/SA failed to correct the rating upon receipt of that information, the E/SA were estopped from asserting the statute of limitations as a defense to the payment of benefits.

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The plaintiff/claimant has filed her jurisdictional answer brief in the Florida Supreme Court in the case of Liberty Mutual Insurance Company v. Steadman (For previous posts about this case, see here, here, and here).  The brief, which you can read here, says that the allegations of her complaint against Liberty Mutual and its claims adjuster are sufficient to state a claim for intentional infliction of emotional distress because those allegations go far beyond alleging a "mere delay" in providing medical benefits or a "minor delay" in the claims process. 

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Four More briefs have been filed in the Florida Supreme Court in support of the claimant's challenge to the constitutionality of the 2003 amendment to §440.34, Fla. Stat., in the case of Murray v. Mariners Health.

The first, filed by the Workers' Compensation Section of the Florida Bar, doesn't add much to the discussion.  It simply suggests that the 2003 amendment is unconstitutional because it restricts access to courts.  You can read the brief here.

The second, filed by the Florida Professional Firefighters, Inc., essentially adopts the "due process" argument set out in Point III of Murray's Initial Brief, which I wrote about here.   The argument is that by restricting the amount of a "reasonable fee" to a percentage of the benefits secured by the attorney, the amendment creates an unconstitutional "irrebuttable presumption."  The brief, which you can read here,  also contains an interesting discussion of the history of workers' compensation laws in general and the Florida Workers' Compensation Law (Ch. 440, Fla. Stat.) in particular.

The third, filed by the Florida Police Benevolent Association, takes a slightly different approach.  The brief, which you can read here, alleges that law enforcement officers who are beneficiaries of the "heart-lung bill" (§112.18, Fla. Stat.) are in fact unable to take advantage of this act of legislative largess because they are unable to find competent counsel willing to assist them when the amount of attorney's fees which can be awarded are restricted to a percentage of benefits secured.  As an example, the attorney authoring the brief cites a case from his own firm, Weimer v. City of Kissimmee, OJCC No. 06-021829WJC.  In that case, the attorney's firm had asked the JCC to approve an attorney's fee retainer agreement wherein the claimant agreed to pay the law firm an hourly fee rather than having the amount of the fee limited to a percentage of benefits secured.  The JCC refused to approve the agreement in this order (worth reading), and as a result the law firm withdrew from representing the claimant further.  As a result, says the FPBA, the 2003 amendment is unconstitutional because it impairs the right of the claimant to freely contract with an attorney of his choosing. (Parenthetically, although the law firm withdrew from representing the claimant before the JCC, the firm has filed a petition for writ of certiorari, currently pending before the First District Court of Appeal in Case No. 1D07-4549, which challenges the order refusing to approve the retainer agreement.

The fourth, filed by an individual claimant, David Singleton (Singleton v. Seminole County School Board, OJCC No. 07-010864WJC), continues that theme and alleges that he also has been unable to retain counsel of his choosing because of the attorney's fee limitations.  Specifically, Singleton filed this petition for leave to retain the attorney of his choice based upon his agreement to pay the attorney an hourly fee, but in this order (worth reading) the JCC declined to approve the agreement.  (As with Weimer, the JCC's order refusing to approve Singleton's retainer agreement is the subject of a petition for writ of certiorari currently pending before the First District Court of Appeal.  See Case No. 1D07-5349).  Singleton argues in his Murray brief that the 2003 amendment impairs his constitutional right to contract with the attorney of his choice.  He also argues that the amendment denies him the right to counsel, access to courts, and equal protection.  You can read Singleton's brief here.

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Section 440.185(1), Fla. Stat., requires an injured worker to report an on-the-job injury to his employer within 30 days "after the date of or initial manifestation of the injury."  Subsection (1)(b) provides an exception to that rule in cases where "[t]he cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion that the injury arose out of and in the course of employment."

In Luedke v. Play Space Services, decided on 1/7/2008, the claimant had suffered from spina bifida since birth, and this condition often caused him to experience symptoms in his neck and upper back which were similar to those experienced after his industrial accident.  He did not seek medical attention for that accident until 35 days after its occurrence at which time his physician told him that his symptoms were not due to his spina bifida, but were accidental in nature.  Nevertheless, the JCC found that the claimant's symptoms were directly recognizable, even to a lay person, as being attributable to the heavy work he was performing on the job.  Accordingly, the JCC found that the cause of the claimant's injuries could be identified "without a medical opinion" and therefore did not fall within the exception provided by subsection (1)(b).   

On appeal, the majority concluded that whether the cause of the injury could not be identified without a medical opinion was a question of fact.  The majority therefore voted to affirm the JCC's finding in that regard because it involved a "credibility determination."  Judge Browning dissented.

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The West Palm Beach law firm of Rosenthal & Levy has filed suit against the law firm of Morgan & Morgan.  The suit claims that one of R & L's former associates improperly solicited some of the firm's clients to join him at M & M, his new firm.  You can read the 8-count complaint here and an article concerning the complaint here.

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Here's a link to an article from the 12/30/2007 edition of the Palm Beach Post regarding the effect of the 2003 amendment to §440.34, Fla. Stat.  As the attorneys challenging the constitutionality of the amendment have argued in Murray v. Mariners Health, Case No. SC07-244, now pending before the Florida Supreme Court, the article illustrates how the amendment makes it difficult for injured workers to find an attorney willing to represent them - particularly in cases where the amount of benefits at issue is relatively small.

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Section 626.989(9), Fla. Stat., directs the Department of Financial Services to prepare an annual "joint performance report" to the legislature on workers' compensation fraud by January 1 of each year.  The Department has now issued its report covering the period 7/1/2006 through 6/30/2007, which you can read here. 

Among the statistics: 184 convictions for workers' compensation fraud consisting of claimant fraud (58), working without workers' compensation insurance (65), premium fraud (13), fraudulent certificate of insurance (29), identity theft (1), grand theft (10), and violation of stop work order (8).

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