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

The federal minimum wage is set to increase to from $5.85 per hour to $6.55 per hour on July 24.  That means the compensation for non-professional attendant care rendered  by family members and necessitated by an on-the-job accident in Florida will also increase because that compensation is pegged to the federal minimum wage.  See §440.13(2)(b)1, Fla. Stat.

 

As I wrote here, two judges of compensation claims have held that this statute has been superseded by the enactment of Florida's own minimum wage law.  The state minimum wage is currently set at $6.79 per hour (effective 1/1/2008) with another increase scheduled to go into effect on 1/1/2009.

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The ADA Amendments Act of 2008 (H.R. 3195), which passed the U.S. House of Representatives on June 27, is now being considered by the U.S. Senate.  The Senate Committee on Health, Education, Labor, and Pensions conducted a hearing on the bill on July 15.  You can watch the proceedings and read the testimony of the various witnesses here.

 

Much of the testimony was supportive of the legislation.  But Andrew Grossman of the Heritage Foundation expressed concern in his testimony over what he believes is an ill-advised amendment to the definition of "disability" under the Act.  Although the bill still defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities," the term "substantially limits" has now been defined as "materially restricts" - supposedly a less restrictive definition than the Supreme Court of the United States has given that term in previous court decisions.  See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  But Mr. Grossman points out that the term "materially restricts" is itself not defined in the statute and thus is susceptible to varying interpretations.  The White House has expressed similar concerns in this June 24 Statement of Administration Policy.

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The First District Court of Appeal made quick work of a Jacksonville construction worker's constitutional challenge to the so-called "horizontal immunity" provision of the Florida Workers' Compensation Law which I discussed here.  Just three days after hearing oral argument, the court "PCA'd" , i.e., affirmed without written opinion, the lower court's judgment.  Note:  because the First District affirmed the lower court's ruling without a written opinion, the decision is not binding as precedent. 

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The claimant is entitled to a "one-time-change-of-physician" under §440.13(2)(f) where the first physician evaluated him and ordered an MRI scan even though he never rendered any actual treatment.  So said the First District Court of Appeal in Nunez v. Pulte Homes, Inc., decided on 7/7/2008.

 

The statute in question provides that the carrier "shall give the employee the opportunity for one change of physician during the course of treatment for any one accident" (emphasis added).  In Nunez, the record showed that the claimant had been seen twice by Dr. Lusk, a neurosurgeon who, after ordering an MRI scan, opined that the claimant was not a candidate for surgery.  The claimant, who speaks Spanish, was dissatisfied with Dr. Lusk because he could not properly communicate with the doctor.  He therefore requested a "one-time-change-of-physician" pursuant to the statute.

 

The E/C refused the request, relying upon Butler v. Bay Center, wherein the First District held that in order to be entitled to a "one-time-change," the claimant must have actually received treatment from the physician from whom the change is requested.  The JCC agreed and denied the request.

 

But on appeal, the First DCA distinguished Butler and reversed.  The court held that for purposes of the statute, "treatment" includes "examination and diagnosis as well as application of remedies."  Therefore, because Dr. Lusk evaluated the claimant "during the course of treatment," he was entitled to a "one-time-change" as a matter of law.

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In Spry v. Professional Employer Plans d/b/a IHOP (decided on 7/7/2008), the First District Court of Appeal granted the claimant's petition for writ of certiorari and quashed the JCC's order compelling the claimant to disclose financial information.  The JCC had ordered production of the information without conducting an evidentiary hearing as to its relevance.

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JCC Alan M. Kuker of Miami, JCC Daniel A. Lewis of Ft. Lauderdale, and JCC Mary A. D'Ambrosio of West Palm Beach are all seeking reappointment as judges of compensation claims.  The three will appear before the Statewide Nominating Commission for Judges of Compensation Claims in Orlando on August 18.  And the commission is now acceptiing applications for the JCC openings in Jacksonville and Gainesville.  More here and here.

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Last December, The Florida Times-Union carried this story about Gregory Aikens, a Jacksonville construction worker employed by subcontractor Dee Shoring Co., Inc., who was injured on the job due to the negligence of Miller Electric, another subcontractor on the same job. Aikens sued Miller Electric to recover for his injuries, and although the jury agreed that Miller Electric was indeed negligent, they specifically found that the company was not "grossly" negligent.  Therefore, judgment was entered for Miller Electric because of a 2003 amendment to §440.10, which raised the standard for recovery in suits by an employee of one subcontractor against another subcontractor from simple to gross negligence.  The amendment took effect just five days before his accident occurred.

 

Aikens has appealed the judgment to the First District Court of Appeal, contending, among other things, that the amendment is unconstitutional under Art. I, §21 ("access to courts") and Art. I, §2 ("equal protection"), Fla. Const. (Aikens v. Miller Electric, Case No. 1D07-6314).  Oral argument is set for July 15, but unfortunately, because the argument is set to take place in Jacksonville instead of Tallahassee, we'll be unable to watch.

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The ideological split among the current justices at the Supreme Court of Florida continued to show in three cases decided on 7/10/2008.  In Florida Dept. of Environmental Protection v.  Contractpoint Florida Parks, LLC, the court held 4-3 that §11.066(3), Fla. Stat., does not require a specific legislative appropriation before a state agency can be required to pay a valid judgment entered into for breach of contract with a private entity.  In the majority were Justice Pariente, along with Chief Justice Quince, Justice Anstead, and Justice Lewis.  Dissenting were Justices Wells, Cantero, and Bell.

 

In Wyche v. State, the court held 4-3 that a criminal defendant's saliva sample was not given involuntarily, and therefore not in violation of the Fourth Amendment, even though the police obtained the defendant's consent to giving the sample by telling him that he was a suspect in burglary A, when in fact there was no burglary A.  The State later tried to use the sample to prosecute the defendant in burglary B.  This time, Chief Justice Quince "switched sides" and voted with her three more conservative colleagues, Justices Wells, Cantero, and Bell.

 

And in Salazar v. State, Justices Bell, Cantero, and Wells, though concurring in the court's affirmance of the defendant's first degree murder conviction and death sentence, took issue with the standard of appellate review which should be afforded to a trial court's ruling on a motion for mistrial.

 

It'll be interesting to see whether and how this split plays out in Murray v. Mariners Health.  That's assuming, of course, that the court decides the case before the departures from the court of Justices Cantero, Bell, Wells, and Anstead over the next several months, as I noted here.

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The Charlotte Observer continued its coverage of the underreporting of workplace injuries on 7/3/2008 with this story.  According to the report, the U.S. Senate has appropriated additional money to fund a recordkeeping enforcement unit within OSHA.  The unit would examine company injury logs and compare them to other available information to determine whether the employer has violated OSHA by failing to record workplace injuries.

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The  bar patron who was convicted of battery and other offenses in connection with a brawl at the Stuart Ale House and whose conviction was affirmed by the Fourth District Court of Appeal will get another chance before that court.

 

As I discussed here, during the course of Deren's criminal prosecution the State came into possession of a letter from Hartford, Stuart Ale House's workers' compensation insurer, documenting that it had paid over $20,000 to and on behalf of its bouncer who was injured in the fracas.  Deren contended that the State's failure to disclose this letter to him violated the U.S. Supreme Court's decision in Brady v. Maryland because he could have used it to question the bouncer's bias and motive to testify against him.

 

The Fourth District Court of Appeal rejected Deren's argument and affirmed the conviction, but the Supreme Court of Florida has now quashed that decision, holding that the Fourth District improperly applied Brady.  The Fourth DCA will now reconsider the Brady claims using the proper standard.  Deren v. State, Case No. SC07-1700.

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