I wrote here about three businessmen who were recently convicted in federal court of conspiracy, mail fraud, wire fraud, and money laundering in connection with various fraudulent workers' compensation schemes. They've now been sentenced to a combined 55 years in prison along with forfeiture of $75M in assets.
You can read the story here.
As I discussed here, an employer's or carrier's allegation that an employee has committed workers' compensation fraud by violating one or more provisions of §440.105 can sometimes have collateral consequences. For example, in Sickles v. Pasco Co. Sheriff's Office, JCC Hafner concluded that Sickles, a deputy sheriff, had knowingly made false statements in connection with his workers' compensation claim in violation of §440.105 and that any further benefits on account of his accident must be denied for that reason.
Two days later, according to this 5/29/2008 article from the Tampa Tribune, the Pasco County Sheriff's Office suspended Sickles from his job without pay and without benefit of a pre-suspension hearing. That prompted Sickles' request for an injunction from the circuit court on the grounds that PCSO's action violated the "Police Officer's Bill of Rights" [see §112.532, Fla. Stat., which sets forth various procedural due process rights of law enforcement officers charged with misconduct]. According to the article, the lawsuit has now been "settled," although it appears that the sheriff's office is continuing its investigation.
Justice Cantero recently announced that he is resigning from the Supreme Court of Florida effective September 6. Then last week, Justice Bell also announced his resignation effective October 1.
Now comes word from this article from the 5/24/2008 edition of the Miami Herald that Justices Anstead and Wells will be forced to leave office early next year due to reaching the mandatory retirement age of 70. So within the next few months Governor Crist will have the opportunity to appoint four of the seven justices on the court. Justices Cantero, Bell, and Wells are generally considered to be the three most conservative justices currently serving.
This isn't strictly a workers' compensation issue, but is one that has businesses around the state concerned about potential liability, both in workers' compensation and in tort. Ch. 2008-7, Laws of Fla., officially entitled the "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008," but perhaps more popularly known as the "Guns at Work" bill, was passed by both houses of the Florida Legislature and signed by the governor. Scheduled to go into effect on July 1, 2008, the bill prohibits employers in the state from interfering with the right of "any customer, employee, or invitee" to bring a firearm to the workplace so long as it is "lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot and when the customer, employee, or invitee is lawfully in such area." The bill also authorizes a civil action, including an award of attorney's fees, against an employer who violates the law.
But does one man's right to keep and bear arms infringe upon another man's right to use his property as he wishes? The Florida Chamber of Commerce says so and has filed suit in the U.S. District Court for the Northern District of Florida seeking to have the law declared unconstitutional. They contend that the bill violates the Takings and Substantive Due Process Clauses of the Fifth Amendment and, because the bill allegedly conflicts with an OSHA provision, the Supremacy Clause of Article VI.
On May 22, the Chamber filed this Motion for Preliminary Injunction to keep the law from going into effect on July 1. Stay tuned.
Section 440.185(4), Fla. Stat., requires the workers' compensation carrier, within three days of learning of an on-the-job accident, to send to the injured worker a copy of this informational brochure which explains to him his rights and obligations under the Florida Workers' Compensation Law, including the fact that the statute of limitations may expire on his claim after one year from the last payment of compensation or furnishing of medical care. The First DCA has held that where the carrier fails in this statutory obligation, it is barred from raising the statute of limitations as a defense to a late-filed petition - unless, that is, it can prove that notwithstanding its failure the claimant had "actual knowledge" of his obligations "from any source." See, e.g., Fontanills v. Hillsborough Co. School Bd., 913 So.2d 28 (Fla. 1st DCA 2005).
In Waffle House v. Scharmen, decided on 5/21/2008, the claimant contended below that the employer/servicing agent were estopped from raising the statute of limitations as a defense to his petition because of their failure to provide the required notice. The employer/servicing agent denied that they had failed in their statutory obligation. But even if they did, they said, the claimant might have had "actual knowledge" of the limitations period through communications with his attorney. To prove such knowledge, they tried to elicit testimony from the claimant's attorney about his communications with his client.
Continue Reading...Another judge of compensation claims has weighed in on whether non-professional attendant care must be compensated at the federal minimum wage (currently $5.85/hr.) or at the Florida minimum wage (currently $6.79/hr., effective 1/1/2008). As I wrote here, JCC Castiello and JCC Medina-Shore have concluded that the Florida minimum wage applies to such care notwithstanding the express requirement in §440.13(2)(b)1 that such care be compensated at "the federal minimum hourly wage" (emphasis added). See Tapia v. Prestressed Systems and Valdes v. Galco Construction.
JCC Lewis in Ft. Lauderdale disagrees. In Gilstrap v. Broward Correctional Institute, decided on 4/24/2008, he concludes that because the care-giver is not an employee of the employer/carrier, the "clear and unambiguous language of the statute" controls and that the care must be recompensed at the federal minimum wage. [Note: the federal minimum wage is set to increase to $6.55/hr. on 7/24/2008 and to $7.25/hr. on 7/24/2009. Florida's minimum wage increases each year on January 1, as determined by the Agency for Workforce Innovation].
One idea I heard bandied about after the enactment of the 2003 amendment to §440.34 was whether a successful claimant might avoid the fee limitations contained in the amendment by claiming entitlement to fees, in an appropriate case, under §57.105, Fla. Stat. That statute provides for the award of attorney's fees to the prevailing party "in any civil proceeding or action" in which the court concludes that "a claim or defense" either "[w]as not supported by the material facts necessary to establish the claim or defense" or "[w]ould not be supported by the application of then-existing law to those material facts." And, perhaps more importantly, it does not limit the amount of any such fees to a percentage of "benefits secured" by the attorney.
The statute does provide for the award of fees in administrative proceedings. See §57.105(5). And the First DCA has occasionally awarded appellate attorney's fees under this statute in workers' compensation appeals. See, e.g., Fumigation Dept. v. Pearson, 547 So.2d 352 (Fla. 1st DCA 1989).
But now, in Bell v. Weyerhaeuser, decided on 4/24/2008, JCC Lorenzen in Tampa has concluded that a judge of compensation claims lacks jurisdiction to award attorney's fees under this statute. Workers' compensation proceedings, she reasoned, are neither "civil proceedings" nor administrative proceedings under Ch. 120. Moreover, the Florida Workers' Compensation Law already contains a provision authorizing the award of attorney's fees for frivolous proceedings, to wit: §440.32, Fla. Stat.
In Doe v. Footstar Corp., the Second DCA affirmed the trial court's judgment on the pleadings in favor of the employer and concluded that the employee's civil action against it was barred by the "exclusive remedy" provision of §440.11. The employee (a minor, who brought the action through her parents) alleged in her complaint that Cooper, a co-employee, had assaulted and sexually battered her in the course of his employment with Footstar and that Footstar had negligently hired, retained, supervised, and trained Cooper.
The court had strongly hinted that it would reach this result when it considered this same case earlier. In this opinion from 2006, the court concluded that it lacked jurisdiction to consider Footstar's appeal at that time under Fla.R.App.P. 9.130(a)(3)(C)(v). That rule provides appellate courts jurisdiction over orders determining that, "as a matter of law, a party is not entitled to workers' compensation immunity." The court concluded that the trial court had merely denied Footstar's motion for summary judgment, that the order did not state, as a matter of law, that Footstar was not entitled to workers' compensation immunity, and that it did not enter judgment against Footstar on the issue of workers' compensation immunity.
Continue Reading...In Tractor Supply Co. v. Kent, which I discussed here, the Fifth DCA held that an employer was not estopped from asserting workers' compensation immunity as a defense to a civil action by its injured employee merely because it contended that the employee's ongoing medical condition is no longer attributable to the on-the-job accident, but to a pre-existing condition.
Now the Second DCA has followed suit in Coca-Cola Enterprises, Inc. v. Monteil et al., decided on 5/14/2008. Monteil was injured in a compensable workers' compensation accident while working for Coca-Cola. They paid him benefits after the accident for approximately twelve weeks, but then concluded that his ongoing medical condition was no longer related to his work injury, but to a pre-existing degenerative condition, and therefore controverted further benefits at that point. Rather than filing a petition for benefits, Monteil sued Coca-Cola for negligence in allegedly causing his accident. Coca-Cola moved for summary judgment, contending that the "exclusive remedy" provision of §440.11 barred the action, but Monteil successfully opposed the motion by contending that Coca-Cola, by controverting further benefits, was estopped from asserting the exclusive remedy defense. The Second DCA disagreed and reversed. Quoting Kent with approval, the court said:
Continue Reading...Howser v. ABB, Inc., a 3/27/2008 decision from the federal Eighth Circuit Court of Appeals involving the Fair Labor Standards Act ("FLSA"), illustrates again how workers' compensation issues sometimes become intertwined with other employment laws. (The FLSA requires covered employers to pay a minimum hourly wage and overtime pay in certain circumstances to covered employees).
Cynthia Howser was injured in an on-the-job accident while working for ABB, Inc., in Missouri. ABB, through its workers' compensation claims administrator, Gallagher Bassett, accepted the compensability of the accident under Missouri law. Howser required extensive medical care but was able to continue working following her accident. Eventually, Gallagher Bassett scheduled a medical appointment for Howser, but the appointment was scheduled to occur during her working hours, forcing her to miss time from work. The purpose of the appointment, according to Gallagher Bassett, was to re-evaluate her work-related injuries.
ABB offered to compensate Howser for the time she missed from work to attend the appointment but told her that it would deduct the hours missed from her accrued paid leave benefits. Howser declined the offer and opted instead to take an unpaid excused absence so she would not lose any of her accrued leave benefits. Because she did so, she was never compensated for the 3.8 hours of time she missed to attend the appointment.
Continue Reading...As I discussed here briefly, if a litigant in a workers' compensation proceeding fears that he will not receive a fair hearing at the hands of the JCC assigned to his case, Fla. Admin. Code R. 60Q-6.126 provides that he may file a motion seeking disqualification of the judge under the applicable Florida Rules of Judicial Administration. The standard for granting relief under this rule is not whether the litigant has a subjective fear that he will not receive a fair hearing. Rather, he must allege in his motion specific facts which would prompt a reasonably prudent person to conclude that he could not get a fair hearing.
Once legally sufficient factual allegations are made, however, Fla.R.Jud.Admin. 2.330(f) provides that the JCC may not pass on the truth of the facts alleged. If the facts alleged are legally sufficient, he must grant the motion. If the movant believes that his motion has been improperly denied, he may seek immediate review of that decision by filing a petition for writ of prohibition in the First DCA without having to wait for an adverse order from the JCC on the merits of his case.
In Schwartzkopf v. Sea Ray Boats, Inc., and Robinson v. Warden Construction, Inc., both decided on 5/8/2008, the First DCA by a 2-1 vote in each case summarily denied such petitions. Both cases involved motions to disqualify JCC Terlizzese which were filed by the same attorney. Because the court elected not to write a full opinion in either case, however, we know very little about the facts that were alleged in the petitioners' motions below. (The motions also are not available on DOAH's website).
However, from Chief Judge Browning's dissenting opinions, it appears that an adversarial relationship had developed not between the JCC and the claimant, but between the JCC and the claimant's attorney. Without reciting them in detail, Judge Browning concluded that the facts alleged in the motions were legally sufficient and that they therefore should have been granted. (There are, in fact, several decisions in non-workers' compensation cases holding that an adversarial relationship between a judge and a litigant's attorney can under certain circumstances form a sufficient basis for disqualification of the judge. See, e.g., Franco v. State, 777 So.2d 1138 (Fla. 4th DCA 2001)).
"Justice delayed is justice denied," goes the old saying. Consistent with that maxim, §440.25(4), Fla. Stat., provides that the JCC "shall" issue a final order within 30 days of a hearing on the merits of a claim. But what if he doesn't? What if instead of taking one month he takes, say, 23 months? Previous decisions from the First DCA make it clear that the JCC's failure to issue a timely order is not reversible error per se; such "stale" orders will be reversed on appeal only if the losing party can demonstrate that it was prejudiced by the delay. Prejudicial error has typically been found in cases where the resolution of one or more factual determinations necessary to the decision turned on the credibility of the witnesses who testified live before the JCC. In such cases, the First DCA has concluded that the JCC could not possibly have remembered the details of the testimony, thus requiring reversal of the "stale" order and a remand for a hearing de novo.
But over the last several years, the First DCA has added yet another requirement to securing a reversal in such cases - before filing the notice of appeal, the aggrieved party must first file a motion for rehearing with the JCC in order to preserve the issue for appellate review. Apparently, the claimant's failure to file such a motion resulted in the court's per curiam affirmance of the JCC's order in Suluki v. American Airlines, decided on 5/8/2008. Chief Judge Browning concurred in the result but wrote separately to express his view that the JCC's 23-month delay in issuing her order would otherwise constitute reversible error per se.
Just a few days ago, I wrote about Lentini v. City of West Palm Beach, a case where the First DCA reiterated that in order to rebut the presumption of compensability afforded by §112.18(1), the so-called "Heart-Lung" bill, an employer need only present "competent substantial evidence." After all, the statute itself says the presumption applies "unless the contrary be shown by substantial evidence" (Emphasis added).
Now comes the court's revised opinion in Butler v. City of Jacksonville, issued on motion for clarification on 5/8/2008. The court's original opinion in this case, issued on 1/31/2008, held that the JCC had erred: (1) in failing to afford the claimant, a firefighter, the benefit of the §112.18(1) presumption for his peripheral vascular disease ("PVD"); and (2) in failing to find that the claimant's compensable disease rendered him permanently totally disabled under the criteria for disability used by the Social Security Administration.
The revised opinion, issued in response to the employer's motion for clarification, reaches the same result and is almost identical to the original opinion with one notable exception - Judge Kahn's new concurring opinion. Judge Kahn takes issue with these statements in the majority opinion: (1) "The presumption switches the burden of proof from the claimant to the employer and may be overcome by clear and convincing evidence that the disease was caused by a specific non-work-related event or exposure" (emphasis added); and (2) "[t]he employer did not present any evidence, let alone clear and convincing evidence, that the claimant's PVD was caused by a specific non-work-related event or exposure" (emphasis added).
Continue Reading...When settling a workers' compensation claim with an employee, most Florida employers - particularly if they're self-insured - want the employee to settle not only his rights under the Florida Workers' Compensation Law, but any other kind of employment-related claim which the employee may have as well. As Manzini & Associates, P.A. v. Broward Sheriff's Office indicates, however, all parties should take care in entering into such agreements.
The plaintiff/claimant in the case was pursuing both a civil rights claim and a workers’ compensation claim against her employer, Broward Sheriff’s Office, using two different lawyers. She eventually fired her civil rights lawyer (Manzini), however, and subsequently entered into an agreement to settle all of her claims against Broward, using her workers’ compensation lawyer. (We don’t have the general release, but you can see the motion for approval of attorney’s fees in the workers’ compensation case and the JCC’s order approving the motion here).
Continue Reading...
The "dual persona" doctrine, discussed only sparingly in Florida judicial decisions, is an exception to the "exclusive remedy" provision which bars most tort claims by an employee against his employer. The doctrine permits an employee to pursue a tort claim against his employer where the corporate employer merges with a corporate third-party tortfeasor after the accident which caused the employee's injuries. For example, in Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla. 3d DCA 1991), one of the few Florida decisions to address the doctrine, an employee was allowed to sue her employer when, after the manufacture of the defective product which injured the employee, the employer merged with the manufacturer of the product.
In Griffin, Inc. v. Loomis, Fargo & Co., however, decided on 4/23/2008, the Second DCA refused to apply the doctrine to permit a claim for contribution by a third-party tortfeasor against the employer's successor corporation. The facts of the case are a little complicated, but here goes:
Continue Reading...Res judicata (literally, "a thing decided") is an equitable doctrine which bars the re-litigation of claims and issues that have already been determined in an earlier judicial proceeding. Does that doctrine bar a claim for permanent total disability benefits where the JCC has previously considered and denied such a claim? Not necessariliy, said the First DCA in Myers v. Hillsborough County School Board, decided on 4/23/2008.
Myers had filed a claim for an award of PTD benefits commencing in April 2000 which the JCC denied in April 2004. In September 2006, he filed a second claim for PTD benefits, this time commencing in September 2005. Because the second PTD claim covered a different time period, and because the April 2004 denial "did not go to the entire merits of future disability claims," the First DCA said the second PTD claim was not barred by res judicata.
I wrote here about Wal-Mart Stores, Inc. v. Thompson, where the First DCA strongly implied that the pre-1994 standards governing the quality of proof needed to support an award of permanent total disability benefits apply to post-10/1/2003 claims.
In Ferrell Gas v. Childers, decided on 4/7/2008, the court was more direct. Upholding the JCC's award of PTD benefits in which he considered the claimant's vocational abilities as well as his physical limitations, the court specifically compared the pre-1994 statute with the 2003 amendment governing awards of permanent total disability benefits, noting that "the pertinent language in the current version of §440.15(1)(b) is similar to the language under which this court has recognized that it is appropriate to consider both physical and vocational factors."
As I discussed here, one of the legislative changes enacted in 2003 concerns the issue of costs in workers' compensation litigation. Formerly, §440.34(3) authorized an award of costs only in favor of a prevailing claimant in a workers' compensation proceeding. The 2003 amendment to the statute, however, authorizes an award of costs in favor of the prevailing party.
Construing this amendment in Guckenberger v. Seminole County, decided on 4/23/2008, the First DCA held that the JCC could award costs in favor of the prevailing employer/servicing agent and against the non-prevailing claimant even though he had not reserved jurisdiction to do so in his final compensation order. The claimant's challenge to the amendment on "public policy" grounds, said the court, was better addressed to the legislature.
A pretrial order compelling discovery can be reviewed by way of petition for writ of certiorari without waiting until the conclusion of the trial so long as the petitioner can show: (1) that the order constitutes a departure from the essential requirements of law; (2) that it would cause material harm; and (3) that the harm caused by the order cannot be adequately remedied by way of a post-trial appeal. As with an appeal, however, the petition must be filed within 30 days of rendition of the order sought to be reviewed. Failure to file the petition timely will result in its dismissal. That's what happened in Caldwell v. Wal-Mart Stores, Inc., decided on 5/5/2008. Although the petition in Caldwell was filed within 30 days of an order denying the claimant's "Motion for Reconsideration of Order Entered February 28, 2007" the First DCA concluded that the claimant's real challenge was to the February 28 order compelling him to submit to an independent medical examination with a doctor who was allegedly friendly with the insurance industry, not with the much later order denying his "motion for reconsideration." Because the petition was filed more than 30 days from 2/28/2007, the court dismissed it as untimely.
Section 112.18(1), Fla. Stat., says that if a firefighter, law enforcement officer, or corrections officer contracts tuberculosis, heart disease, or hypertension, there arises a presumption that the disease was contracted in the course of his employment. The presumption is rebuttable by the employer, however. What kind of evidence does it take to do so? "Competent, substantial evidence" is all that is necessary, said the First District Court of Appeal in Lentini v. City of West Palm Beach, decided on 5/5/2008. In so doing, the court merely reiterated the holding it had made last year in City of Tarpon Springs v. Vaporis and more recently in Saldana v. Miami-Dade County. Although not discussed in the opinion, a 1979 decision from the Supreme Court of Florida, Caldwell v. Division of Retirement, 372 So.2d 438 (Fla. 1979), had stated that the presumption could be overcome only by "clear and convincing evidence" - a higher standard of proof.
Of course, the case on everyone's mind since I last posted is one that hasn't yet been decided - Murray v. Mariners Health, the case in which the Supreme Court of Florida is considering the validity of the 2003 amendment to §440.34, Fla. Stat.
The court held oral argument on 4/9/2008. Over the years, I've concluded that it's oftentimes dangerous to try to guess the outcome of a case based upon the questions coming from the bench. Nevertheless, I'll venture a guess here. Judging from the justices' questions to counsel, it seems to me that the court is poised to strike down this amendment. I'm less certain about whether they might do so on the basis of statutory construction or on constitutional grounds. Despite the fact that they had declined to consider the statutory construction question in several previous cases (Wood v. Florida Rock Industries; Lundy v. Four Seasons; Campbell v Aramark); they seemed particularly interested in this argument here. You can watch the oral argument by clicking below and judge for yourself (Windows Media Player required):
mms://146.201.215.129/Archives3wm/07-244.wmv
Sorry for the lack of posting for the last few weeks. I'll try to catch up over the next few days. To begin, let's look at the legislative session which ended on 5/2/2008. What happened? Almost nothing.
SB 2548, the bill which contained a number or changes to the law which I summarized here, was never even taken up by committee.
SB 454 and HB 239, bills which would have affected the employee-leasing industry and which I discussed here, also died.
And SB 2314, a bill which would have made cancer a presumptively compensable for condition for firefighters (see this post), met the same fate.
HB 5045, on the other hand, did pass both chambers. This bill transfers various duties previously assigned to the Agency for Health Care Administration (AHCA) to the Department of Financial Services. It awaits the governor's signature and will be effective on 7/1/2008.
David A. McCranie has been licensed to practice law in the State of Florida since 1982. He has been aMore...
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