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

I wrote here and here about whether false evidence of identification in the form of a false Social Security number can constitute "fraud" under §440.105(4)(b)9, Fla. Stat.  JCC John P. Thurman in Gainesville recently weighed in on the subject in Gonzalez v. Williston Timber, OJCC No. 07-018284JPT.

Mr. Gonzalez, who possessed a fifth grade education, purchased from some individuals whose names he could not recall a Social Security card upon migrating illegally to the United States.  He was later told by some friends that his card was not valid, but he did not believe them.  When he went to work for Williston Timber, no one told him that his card was invalid, and in fact Williston Timber never received any notice from the Social Security Administration that his number was not valid.  Following his on-the-job accident, he presented his Social Security number to his employer, to his authorized treating physician, and on his subsequent petition for benefits.  At some point after he filed his petition for benefits - the order does not say when or how - Mr. Gonzalez realized that the number was not valid, and he never used it again.

Based on these facts, JCC Thurman found that Mr. Gonzalez did not knowingly present false evidence of his identity, and he was therefore not guilty of violating §440.105.  Accordingly, he did not forfeit his right to future workers' compensation benefits under §440.09(4), Fla. Stat.

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What happens if the JCC appoints an expert medical advisor ("EMA") to resolve a conflict in the medical testimony, but the EMA fails to express an opinion on the issue?  That's what happened in Fitzgerald v. Osceola County School Board, decided on 2/19/2008.  The JCC had used the EMA's testimony in support of his conclusion that the claimant's respiratory problems were unrelated to her employment.  Concluding that the EMA had actually expressed no conclusive opinions on the issues, the court reversed and remanded to the JCC for further consideration, saying that such testimony from the EMA, though inconclusive, nevertheless "established a metric by which the JCC might measure the credibility and and weight of all the other evidence presented...."

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According to this report from the 2/21/2008 edition of the Florida Times-Union, Governor Crist has not yet decided whether to re-appoint Judge of Compensation Claims William H. Dane, Jr., as one of Jacksonville's two judges of compensation claims.  The article details various complaints that have been made against Judge Dane.

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Florida Insurance Commissioner Kevin McCarty has ordered 6 workers' compensation insurance carriers to refund $4.2 million in excess profits to their employer policyholders.  "Excess profits" result when the workers' compensation insurance carrier's "underwriting gain" for workers' compensation insurance exceeds its "anticipated underwriting profit" by a factor of 5%.  See §627.215(7)(a), Fla. Stat.

You can read the story from the Insurance Journal here and the official press release from the Office of Insurance Regulation here.

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Three men were recently convicted by a federal jury in Jacksonville on various counts of conspiracy, mail fraud, wire fraud, and money laundering.   According to the 73-page indictment, the men defrauded client companies of various professional employer organizations (PEOs) by having them pay premiums for workers' compensation insurance coverage.  The problem was that the insurance companies allegedly providing the coverage were sham corporations, and the defendants simply pocketed the premiums - millions of dollars' worth.  You can read the story from the Florida Times-Union here and a press release from the United States Attorney for the Middle District of Florida here.

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In this 2/11/2008 order, the Florida Supreme Court has declined review of the First District Court of Appeal's decision in Blue Stone Real Estate v. Ward, sub nom., Matrix Employee Leasing, Inc., etc., et al. v. Ward, et al., Case No. SC07-1826.  In Ward, the First District held that a leased employee remains an employee of the leasing company for workers' compensation purposes where the leasing company never notifies the leased employee that it has terminated its leasing contract with the client company.

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Though Florida's annual legislative session is set to begin on March 4, so far only two bills have been filed which would meaningfully affect the area of workers' compensation. Those identical bills, SB 454 and HB 239, concern employee leasing companies. Under these proposed bills:

(1) the contract between the leasing company and the client company must provide that the leasing company will give notice to all leased employees as to whether their workers’ compensation coverage is being provided by the leasing company or by the client company;

(2) when the leasing company terminates its contractual relationship with the client company, the leasing company must give written notice of that fact, including the date of contract termination, to each leased employee at the employee's last known address;

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After his workers' compensation carrier notified John Auster, a retired New Orleans police officer, that it intended to terminate a portion of his workers' compensation benefits, Auster told his psychotherapist that he intended to commit acts of violence against some of the carrier's employees if they did.  The psychotherapist, under Louisiana's "duty-to-warn" statute, conveyed the threats to the carrier's employees.  One of the employees called the police, who in turn contacted the FBI, following which Auster was indicted for violating the federal extortion statute [18 U.S.C. §1951].

Auster moved to suppress evidence of his statements to his psychotherapist, citing the psychotherapist-patient privilege, and the district court granted the motion.  But on appeal, the Fifth Circuit Court of Appeals reversed, concluding that the privilege did not apply because Auster knew that his psychotherapist would convey his threats to the carrier's employees.  U.S. v. Auster.

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I wrote here about the case of Wal-Mart Stores, Inc., v. Thompson, Case No. 1D07-2661, a case concerning what quantum of proof a claimant must present in support of his post-10/1/2003 claim for permanent total disability benefits.  The First District Court of Appeal issued its opinion in that case on 2/6/2008 in which it affirned the JCC's award of PTD benefits to the claimant.  I think we learn at least two things from the opinion:

(1) Although the opinion does not state expressly that the pre-1994 standards for an award of PTD benefits now apply in post-10/1/2003 claims, it seems pretty clear to me that they do.  None of the claimant's doctors in Thompson testified that she was incapable of sedentary employment.  The case was won because she presented medical evidence of her impairment, along with testimony from a vocational expert that she was unemployable, and in this case that evidence was unrebutted.

(2) Whether the claimant "is not able to engage in at least sedentary employment available within a 50-mile radius of the employee's residence" is a question of fact for the JCC to decide.  Therefore, if there is "competent substantial evidence" in the record upon which the JCC can base his finding on that issue, it is not likely to be reversed on appeal.

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I mentioned in this post that the law firm which filed an amicus brief on behalf of the Florida Police Benevolent Association and in support of the claimant in the Emma Murray case had cited one of its own cases, Weimer v. City of Kissimmee, as an example of a situation where the claimant has been hindered in his ability to retain counsel of his own choosing as a result of the 2003 amendment to §440.34.  In Weimer, the JCC refused to approve a contract between Wiemer and his attorney wherein Weimer agreed to pay his attorney an hourly fee instead of the percentage fee called for in §440.34, and Weimer filed a petition for writ of certiorari in that regard with the First District Court of Appeal.

The First District has now denied that petition in this 2/7/2008 per curiam affirmance.

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In Perez v. La Dove, Inc., a case which I wrote about here and here, the Third DCA held that an injured worker must specifically request his employer to preserve evidence critical to his third-party liability claim before liability for spoliation of evidence will arise against the employer.

The Florida Supreme Court has now declined to review that case in this 2/1/2008 order.

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Another of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was one changing the standards for awards of permanent total disability benefits. The impetus for this particular change apparently was the finding by FCCI in 2003 that permanent total disability claims in Florida were five (5) times the national average. See Staff Analysis SB50-A, page 7. Under the legislative reforms which had been enacted in 1993 and which were in effect up until 10/1/2003, permanent total disability benefits were awardable in cases of "catastrophic injury," which was defined to incorporate the standards for awarding disability benefits used by the Social Security Administration. See §440.02(38)(f), Fla. Stat. (Supp. 2002). 

In order to remedy the perceived problem of too many permanent total disability claims, the 2003 Florida Legislature amended the statute to delete "catastrophic injury" – and specifically the Social Security disability standards - as a condition for an award of permanent total disability benefits. 

Instead, the Legislature set out certain severe medical conditions such as paralysis, amputation, and blindness, where permanent total disability would be presumed. See §440.15(1)(a), Fla. Stat. (2003). In all other cases, however, the Legislature imposed the following test:

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A firefighter who was diagnosed with peripheral vascular disease was entitled to the presumption afforded by §112.18(1) that the disease was caused by his employment.  And because his condition met or equaled a "Listing," i.e. an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he was presumed to be permanently totally disabled.  Note that this was a pre-10/1/2003 case so that the firefighter was entitled to an award of permanent total disability benefits if he met the test for disability used by the Social Security Administration.  Butler v. City of Jacksonville.

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In AMS Staff Leasing, Inc., v. Arreola, the employee, an undocumented alien who had entered illegally into the United States from Mexico, was injured in an on-the-job accident while working in Florida. After undergoing twelve post-accident surgical procedures, his physician recommended that he undergo yet another procedure.  By that time, however, he had moved back to his native Mexico and was unable to return to the United States legally in order to receive the recommended treatment. 

The JCC ordered the Employer/Carrier to authorize medical treatment for the claimant in Mexico, and the First District affirmed.  The E/C had argued that because the physician in Mexico was not subject to the more rigorous educational and professional standards required of physicians in the United States, he was not a "physician" within the meaning of §440.13(1)(q), and therefore they were not required to authorize treatment by him.

The Court specifically refused to comment on whether the employee might have committed "fraud" by presenting false evidence of his identity in the form of a fake social security number as discussed in this post.  See footnote 3 of the opinion.

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