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

The U.S. House of Representatives Committee on Education and Labor is investigating that question.  And in a majority staff report entitled Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses, the committee answered the question in the affirmative.  Why are they being underreported?  Because, according to the report:

• Certain categories of workers, accounting for a significant portion of the workforce,are excluded from the survey.
• Occupational illnesses are particularly difficult to identify as work-related.
• Immigrants are less likely to report workplace injuries and illnesses.
• Workers are often reluctant to apply for workers’ compensation.
• The musculoskeletal disorder column has been taken off of the OSHA 300 Log.
• Some workers and employers do not understand the reporting system.
• Employers have an incentive to underreport.

What incentives do employers have to underreport?

• Low injury and illness rates decrease the chance of being inspected by OSHA
• Low numbers of injuries and illnesses decrease workers' compensation expenses.
• Low injury and illness rates can earn businesses bonuses and incentives
• Low injury and illness numbers look good to the public and to customers

What methods do employers use to discourage reporting?

• Direct intimidation of workers.
• Bringing seriously injured workers right back to work.
• Discouraging appropriate medical attention.
• Discouraging physicians from reporting injuries or diagnosing illnesses.
• "No fault" absentee policies.
• Safety incentive programs and games.
• Manager incentives and bonuses
• Drug testing after every accident or injury.
• Contractors and contracting out dangerous work
• Missclassification of workers.

These hearings were apparently prompted by The Charlotte Observer's six-part series entitled "The Cruelest Cuts," an indictment of North Carolina's poultry industry.  The PBS program Expose also covered the story in a report entitled "20,000 Cuts a Day." 

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Speaking of settlements, I've been watching the case of Manzini & Associates, P.A. v. Broward Sheriff''s Office, which I discussed here.  That's the case where the claimant, Wimberly, was simultaneously pursuing a workers' compensation claim and a discrimination claim against her employer, the Broward Sheriff's Office ("BSO"), but with a different attorney for each claim.  When she settled her workers' compensation claim, she signed an agreement which released BSO not just from liability for her workers' compensation claim, but from all liability.  That's when things got interesting.

Manzini (her discrimination lawyer) was shocked when he learned about the settlement and filed a motion in the pending discrimination action requesting that he be allowed to continue to pursue the claim so that he could recover his attorney's fees against BSO.  The trial court denied the motion and the Fourth DCA affirmed.  Manzini has sought review of the decision in the Supreme Court of Florida and has now filed his jurisdictional brief, which you can read here. 

According to Manzini's Statement of the Case and Facts, Wimberly testified below that she didn't realize she was settling her discrimination claim when she signed the release.  Her workers' compensation lawyer testified that he didn't know Wimberly even had a discrimination claim (although Wimberly insisted that she had told him about it).  BSO's position was that its representatives involved with the settlement of the workers' compensation claim were unaware of the existence of the discrimination claim.  Manzini also alleges that while the case was pending on appeal before the Fourth DCA, the trial judge recused himself from further involvement in the case because "BSO's human resources director and the chief decisionmaker" in the discrimination suit was the judge's brother.

Interesting stuff.  I'll keep watching.

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Munroe v. U.S. Food Service, decided on 6/27/2008, illustrates the risks inherent in "settling" a case at mediation when one party's attorney doesn't have authority to do so.  The parties in Munroe went to a mediation conference where they conditionally agreed to settle for $30,000.00.  The problem was that the E/C’s attorney didn't actually have $30,000.00 in authority at the time.  Nevertheless, he promised to obtain the necessary authority within 20 days which, in fact, he did.  But by that time the claimant had changed his mind and decided not to settle for the agreed upon amount.  The E/C then filed a motion to enforce the agreement because their attorney had timely obtained the authority within the allotted time, and the JCC granted the motion.

But on appeal the First District Court of Appeal reversed, holding that because the agreement was contingent upon the happening of some future event, no contract had been formed before the claimant elected to back out.  The court also pointed out the rule which says that “failure. . .to appear at the mediation conference with full authority to resolve the issues may subject the party or attorney to sanctions.”

Note also that the First DCA doesn't defer to the ruling of the JCC in these types of cases.  Whether there is an enforceable settlement agreement is a question that is reviewed de novo.

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The ADA Amendments Act of 2008 which I wrote about two days ago passed the U.S. House of Representatives on 6/25/2008 by a vote of 402-17, with 15 members not voting.  The Senate will now take up the legislation.

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Governor Crist has notified JCC William H. Dane of Jacksonville that he will not be reappointed to a second term.  Here's the story from today's edition of The Florida Times-Union.  Judge Dane will remain on the bench until the governor appoints a successor, a process which normally takes about 90 days.

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Bologna v. Schlanger, though not a workers' compensation case, is an interesting recent decision from the Fifth District Court of Appeal on the issue of "fraud" which could have some application in the workers' compensation setting.  The trial court had dismissed Bologna's negligence claim after concluding that she had lied in her deposition about prior injuries.  Reversing, the Fifth DCA held that Bologna was entitled to an evidentiary hearing before the ultimate sanction of dismissal was warranted.

The court focused on whether Bologna's deposition testimony was knowingly false under the circumstances, particularly in light of the fact that it was only because of her previous truthful answers to interrogatories that defense counsel learned of the prior injuries in the first place: 

It is difficult to envision a scheme to conceal a prior injury that includes identifying the doctor who treated it.

 

The court also seemed to question the tactics of the defense counsel:

This record, as well as others, hints that there may now be a “fraud” strategy on the part of defense counsel. If a plaintiff denies a particular prior injury or treatment or pattern of pain, rather than probe in detail-which may risk the jogging of the plaintiff's memory-the questioning on this point just stops until the inevitable motion to dismiss for fraud is ruled on.

Judge Griffin's concurring opinion is also worth a read.

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One question I get from clients fairly often is whether an employer is required to continue offering employment to an injured worker following his on-the-job accident.  As far as the Florida Workers' Compensation Law is concerned, the answer is no.  Although §440.15(6), Fla. Stat. (Supp. 1994), formerly imposed a fine on an employer with more than 50 or more employees which failed to offer appropriate employment within 30 days after the employee reached maximum medical improvement, that section was repealed in 2003. (Of course, §440.205 prohibits an employer from retaliating against an employee for pursuing a workers' compensation claim, but that's another story).

And although the Americans with Disabilities Act does prohibit discrimination by a covered employer (i.e., one with 15 or more employees) against an individual with a disability with regard to the hiring or discharge of its employees, because of several decisions from the U.S. Supreme Court which defined "disability" fairly restrictively, many individuals have found it difficult to obtain relief under the Act.  The "ADA Amendments Act of 2008," however, now pending before Congress with apparently large bipartisan support, is designed to overrule those decisions.  You can read a report about the proposed legislation here.  More later on how  the legislation might affect an employer's obligations to rehire or retain its workers disabled because of an on-the-job accident.

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Branham v. TMG Staffing, decided on 6/18/2008, is another case involving whether the employer is estopped from asserting the statute of limitations as a defense to a claim where it allegedly failed to mail to the claimant the informational brochure mandated by §440.185(4).  The claims adjuster in the case admitted that she had sent the brochure to the wrong address.  Nevertheless, because he later returned to the employer some executed forms which were also contained in the same mailing, the employer contended that he obviously had in fact received the brochure.  The JCC agreed, finding that there was "no competent substantial evidence" that he did not receive the brochure.

The First DCA reversed the JCC's order, concluding that he had applied an incorrect legal standard in reaching his conclusion.  Specifically, said the court, the JCC should have applied the "preponderance of the evidence" standard instead of the "competent substantial evidence" standard in deciding whether the claimant had received the brochure.  The court therefore remanded the case to the JCC for that determination.

Maybe I'm confused, but isn't "preponderance of the evidence" a higher evidentiary standard than "competent substantial evidence"?  The court certainly said so in Schafrath v. Marco Bay Resort, Ltd., 608 So.2d 97 (Fla. 1st DCA 1992).  And if so, isn't the JCC's error here harmless?  In other words, if there isn't even any "competent substantial evidence" to prove that the claimant did not receive the brochure, isn't there also no "preponderance of the evidence" that he didn't?

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In 2003, the legislature redefined "accident" to make it more difficult to prove that workplace exposures to allegedly harmful substances are compensable under the Florida Workers' Compensation Law.  Specifically, §440.02(1) now provides that "[a]n injury or disease caused by exposure to a toxic substance. . . is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee" (emphasis added).

In Matrix Employee Leasing v. Pierce, decided on 6/18/2008, the First DCA reversed the order of the JCC which had found that the claimant had sustained a compensable exposure.  An IME physician, upon whose testimony the JCC relied, said that the claimant's respiratory problems were caused by her exposure to one of two chemicals.  He did not know, however, to which specific chemical the claimant was actually exposed, nor did he know the levels of any such exposure.  Therefore, the court concluded that there was "no competent substantial evidence" to support the JCC's finding that compensability of the respiratory problems had been established by "clear and convincing evidence."

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HB 5045 has now been signed by Governor Crist and takes effect on July 1, 2008.  See Ch. 2008-133, Laws of Fla.  The measure transfers various duties such as resolving overutilizaion disputes and certifying expert medical advisors from the Agency for Health Care Administration to the Department of Financial Services.

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The 2008 Florida Legislature enacted Ch. 2008-123, the "Jeffrey Johnston Stand Up for All Students Act" which directs all school boards in Florida to develop and adopt policies to prohibit "bullying or harassment" of students or employees.  Does this law create an exception to the "exclusive remedy" provision for employees of a school board if the board fails to take sufficient steps to prevent bullying?  I admit I don't know, but this started me wondering whether laws specifically prohibiting "bullying" in the workplace in general could be far behind.

As it turns out, there have already been attempts around the country to enact such legislation.  See this list compiled by the Workplace Bullying Institute. These bills would explicitly create a private, non-workers' compensation cause of action in favor of an employee against an employer for allowing an "abusive work environment" to exist.  So far, no state has enacted legislation like this, but efforts are continuing.

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Section 440.185(1) requires an employee to notify his employer of an on-the-job accident within 30 days of its occurrence.  The employee's failure to give timely notice will bar a subsequent petition for benefits unless he can establish that one the statute's four subsections applies.  Subsection (a) will excuse late notice of an injury if the employer had "actual knowledge" of the accident notwithstanding the employee's untimely notice, while subsection (d) will excuse late notice if there are other "exceptional circumstances" in the case.

In Marion County v. Futch, decided on 6/5/2008, the JCC had found that the claimant's late notice of his accident  should be excused because the employer had actual knowledge of its occurrence.  But the First DCA reversed, concluding that the JCC had erroneously applied a "constructive knowledge" analysis, i.e., whether the employer should have known of the occurrence, and that in fact there was no evidence to show that the employer had actual knowledge of the accident. 

The JCC had further found that "exceptional circumstances" existed to excuse the late notice under subsection (d) because there was no accusation that the claimant had lied about the circumstances of his accident.  But the First DCA concluded that just because a claimant is truthful about the circumstances of his accident does not justify a finding of "exceptional circumstances."

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Mortality tables genereally break down life expectancies by race and sex.  In this 5/20/2008 memo, however, the Center for Medicare Services announces that for Medicare Set-Aside Arrangements it will accept only estimates from Table 1 of the Center for Disease Control's mortality tables, that is, for the population as a whole without regard to race and sex.  You can access the CDC's tables here.

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The holy grail for workers' compensation carriers is a test that can separate the malingerers from those that are truly injured.  Now there are two controversial tests that purport to be able to do just that.

One is the MMPI "fake bad" scale developed by Dr. Paul Lees-Haley.  You can read more about it here and here.

The other test is the "functional MRI" scan, marketed by one company under the name "NoLieMRI."  Read more about that test here.

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Medical costs for Florida workers' compensation claims are about to go up by about 20% if the Division of Workers' Compensation adopts a recommendation made by a consulting firm which it retained.  That's what Joe Paduda says in this post on his "Managed Care Matters" blog.

Section 440.13(12) provides that most hospital outpatient services are to be reimbursed at 75% of "usual and customary charges."  The problem is that the statute does not define "usual and customary charges."    According to Mr. Paduda, in its 12/13/2007 report, Research & Planning Consultants, L.P., recommended that WC reimbursement for outpatient hospital services be tied to the rate that hospitals charge Medicare, not the rate at which they are actually paid by Medicare.  The problem, says Mr. Paduda, is that hospitals mark up the amount they charge Medicare by about 715%.  That is, they charge Medicare more than seven times what it costs to provide the service.  This will result in a reimbursement rate of about 472% of what Medicare actually pays for outpatient services.

If Mr. Paduda's predictions are correct, I'd say that increases in workers' compensation premiums can't be far behind.

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