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

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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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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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.

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Stubbs v. Bob Dale Construction, decided on 3/25/2008, illustrates just how complicated the computation of a claimant's average weekly wage ("AWW") can be.  That determination is governed by §440.14(1), Fla. Stat., which has seven subsections, (a) through (g).  Under subsection (a), if the injured worker has worked “substantially the whole of 13 weeks immediately preceding the accident,” then the AWW is 1/13^th of the total wages earned during that period.  The term “during substantially the whole of 13 weeks” means “not less than 75 percent of the total customary hours of employment” within that period. But what does the term “customary hours” mean?  That’s what was at issue in Stubbs.

 

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Back in July, I wrote here about Raul Saldana, a corrections officer employed by the City of Miami, who suffered from hypertension and heart disease.  He filed a claim for compensation and medical care under the Florida Workers' Compensation Law, relying upon §112.18(1), Fla. Stat., the "Heart-Lung" bill, to establish the compensability of his condition.  But §112.18(1) only affords a presumption of compensability for such conditions; the presumption may be rebutted by evidence that the condition is not job-related.  Here, the JCC found that the presumption of compensability had been rebutted by evidence of: (1) a genetic predisposition to hypertension; (2) onset of hypertension prior to his employment with the employer; (3) a failure properly treat his hypertension; and (4) development of hypertensive heart disease resulting from untreated hypertension.  You can read the JCC's order here.

 

Saldana appealed the JCC's order to the First DCA, but also filed this petition for writ of prohibition in the Florida Supreme Court in which he challenged the First DCA's jurisdiction to hear his appeal.  The supreme court rejected his challenge in this order.

 

Now the First DCA has rejected his appeal, concluding that the employer presented evidence sufficient to rebut the presumption.  Saldana v. Miami-Dade County.

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Section 440.10(1)(a), Fla. Stat., requires "every employer coming within the provisions of this chapter" - including both general contractors and subcontractors -  to obtain workers' compensation insurance covering their respective employees.  But if for some reason a subcontractor fails to obtain the required coverage, then §440.10(1)(b), Fla. Stat., requires the general contractor's WC carrier to step in and provide any benefits owed if the subcontractor's employee is injured on the job.  In such cases, the general contractor becomes the "statutory employer" of the subcontractor's employee.

 

But whether an employer is or is not an "independent corporation" has nothing to do with whether that employer is a "subcontractor."  The First DCA again made that clear in Dunlap v. CSR Rinker Transport, decided on 2/29/2008.  The Court held there that the JCC erred in concluding that Norma Deal Trucking was not a "subcontractor" just because it was an "independent corporation." 

 

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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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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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Matrix Leasing Company has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court in Blue Stone Real Estate v. Ward, a 7/20/2007 decision from the First DCA which I wrote about here.  You may recall that in that case the First District held that Ward, an employee of Matrix whose services were leased to E&L Concrete Pumping, Inc., remained an employee of Matrix even though E&L had requested that its account with Matrix be considered "inactive."  Why?  Because Matrix did not notify Ward that its leasing contract with E&L had been terminated as required by §468.525(4)(f).

 

Matrix alleges that the Supreme Court has jurisdiction to review the First DCA's decision on the grounds that it conflicts with one of the First DCA's own previous decisions and because the decision "expressly declares valid a state statute."  See Art. V, §3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(i).   You can read Matrix's brief on jurisdiction here.

 

Both Ward and Blue Stone dispute these asserted bases for jurisdiction.  You can read their jurisdictional briefs here and here.

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(Cont'd from Part III)

As I said earlier, it’s anyone’s guess how the Florida Supreme Court will ultimately rule on the merits of Murray, but if previous 4-3 decisions from the Court where Chief Justice Lewis and Justices Anstead, Pariente, and Quince were in the majority are any guide, I think proponents of the amendment have reason to worry.

 

I base that conclusion on the fact that the views of these same four justices have carried the day against the views of the other three in these cases (in reverse chronological order):

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(Cont'd from Part II)

 

SUPREME COURT REVIEW IN MURRAY AND BUITRAGO

In Murray, in addition to filing her notice to invoke the discretionary jurisdiction of the Supreme Court on 2/8/2007, she also filed with the Court a motion entitled “Motion to Determine Whether Jurisdictional Brief is Due and Motion for Extension of Time to Serve Jurisdictional Brief if Due.” (SC07-244).  By order dated 4/17/2007, the court entered an order once again declining review on the basis of the certified question but ordering the parties to submit jurisdictional briefs “as to the validity basis only.”

 

So did the First DCA in Murray “expressly declare valid” the 2003 amendment to §440.34?  The employer/carrier argued in their jurisdictional brief that it did not.  Rather, they argued that the First DCA’s decision was in essence just a “citation PCA.”  See Gandy v. State, 846 So.2d 1141, 1144 (Fla. 2003)(holding that “we do not have jurisdiction to review per curiam unelaborated denials of relief from the district courts of appeal that. . . merely cite to a case not pending on review in this Court, or to a statute or rule of procedure, and do not contain any discussion of the facts in the case such that it could be said that the district court ‘expressly addresse[d] a question of law within the four corners of the opinion itself’” (Emphasis added)).  Though the First DCA’s Murray decision does note that the claimant’s constitutional challenges to the amendment were previously considered and rejected by the court in Lundy and Campbell, it contains no discussion of the facts of the case whatsoever.

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(Cont'd from Part I)

JURISDICTION OF THE FLORIDA SUPREME COURT

The Court’s mandatory appellate jurisdiction is actually quite limited. The court is required to hear an appeal only if it involves a death sentence, if it is a decision of a district court of appeal which declares invalid a state statute or state constitutional provision, or if it is a decision involving a bond validation or rates which public utilities may charge. See Art. V, §3(b)(1) and (2), Fla. Const.; Fla. R. App. P. 9.030(a)(1).

 

The Court’s entire remaining appellate jurisdiction is discretionary.  Except for situations not relevant here, the Court’s discretionary jurisdiction is limited to reviewing decisions of a district court of appeal (“DCA”) that: (1) “expressly declare valid a state statute;” (2) “expressly and directly conflict” with a decision of another DCA or of the Supreme Court; or (3) pass upon a question certified by the DCA to be one “of great public importance.” See Art. V, §3(b)(3), Fla. Const., Fla. R. App. P. 9.030(a)(2). 

 

The party seeking to invoke the Court’s discretionary jurisdiction under grounds (1) or (2) above are required to file jurisdictional briefs with the Court to explain not only why the Court has jurisdiction, but why the Court should exercise its discretion and hear the case. Jurisdictional briefs are not required, however, under scenario number (3) where the DCA has certified that its decision passes upon a question of great public importance. In fact, they aren’t even permitted. See Fla. R. App. P. 9.120(d).

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The Florida Supreme Court has now agreed to consider the constitutional validity of the 2003 amendment to §440.34, Fla. Stat., which took away the JCC's discretion to award claimant's attorney's fees in excess of a percentage of the "benefits secured" by the attorney.  It’s anyone’s guess how the Court will ultimately decide the case of Murray v. Mariners Health, of course, but if other recent Supreme Court decisions and the proceedings in the case thus far are any indication, the Court’s 4-3 decision to accept review in the case might not bode well for proponents of the amendment. (Previous posts on this issue can be found here, here, and here).  In the next few posts, I’ll try to explain why I think that might be so.

 

CHALLENGES TO THE 2003 AMENDMENT TO DATE

First, let’s look at the challenges to the amendment thus far and the reasons why the Supreme Court may have declined review up until now.  To date, the First DCA has considered and rejected such challenges in seven different cases involving written opinions. They are (in chronological order): (1) Wood v. Florida Rock Industries; (2) Lundy v. Four Seasons Ocean Grand Palm Beach; (3) Campbell v. Aramark; (4) Buitrago v. Landry’s; (5) Murray; (6) La Petite Academy v. Duprey; and (7) Payne v. Wal-Mart.

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In what will surely be a closely watched case, the Florida Supreme Court on 10/30/2007 agreed to accept jurisdiction in Murray v. Mariners Health, a case which I wrote about here.  As it had in several other cases, the First District Court of Appeal in Murray rejected a constitutional challenge to the 2003 amendment to §440.34, Fla. Stat.  That amendment restricted the amount of attorney's fees which may be awarded to a successful claimant's attorney to a percentage of the value of the benefits secured by the attorney. 

 

You can read the Supreme Court's 4-3 decision agreeing to accept jurisdiction here.  As they have recently, the justices once again split along ideological lines.  The majority (Chief Justice Lewis, along with Justices Anstead, Pariente, and Quince) which agreed to accept jurisdiction is the same majority which recently prevailed in the "impact rule" cases which I wrote about here.

 

The Petitioner's Initial Brief is due to be served on 11/26/2007.  Oral argument is scheduled for 4/9/2008 at 9:00 a.m. in Tallahassee.

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When the medical testimony in a Florida workers' compensation case conflicts, either party (or the JCC on his own motion) may request the appointment of an "expert medical advisor" ("EMA") pursuant to §440.13(9)(c), Fla. Stat., in order to resolve the conflict.  Once appointed, in the absence of "clear and convincing evidence" to the contrary, the EMA's opinions are presumed to be correct and must be accepted by the JCC.

 

But does an employer have a right to the appointment of an EMA in cases arising under Florida's "Heart-Lung Bill" (§112.18, Fla. Stat.), which states that for firefighters and other law enforcement personnel, medical conditions such as heart disease and tuberculosis are presumed to have been caused by the claimant's employment?  The JCC in this order said no, reasoning that the appointment of an EMA in such cases would be "contrary to the statutory presumption."   In other words, the JCC concluded that placing questions such as the cause of a first responder's heart disease into the hands of an EMA, whose opinions almost always must be accepted, essentially defeats the purpose of the presumption afforded by §112.18 in the first place.  (The JCC later concluded in this order on the merits that the employer had not presented sufficient evidence to rebut the §112.18 presumption that the claimant's heart disease was caused by his employment as a law enforcement officer).

 

But in Palm Beach County Sheriff's Office v. Bair, decided on 9/21/2007, the First District Court of Appeal brushed aside any such concerns and held that the employer is indeed entitled to the appointment of an EMA in these cases.  Presumably, this holding would also apply in cases arising under the other "presumption" statute, i.e., §112.181(2), Fla. Stat., which states that "hepatitis" and "meningococcal meningitis" contracted by an "emergency rescue or public safety worker" are presumed to have been contracted in the line of duty.  

 

By the way, fans of appellate litigation might be interested to note that the employer here attempted to obtain review of the JCC's initial order concerning the EMA question by way of a petition for writ of certiorari with the First District Court of Appeal, but the petition was denied. 

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As I wrote about here, since 1979 the First District Court of Appeal in Tallahassee has exercised statewide jurisdication over all workers' compensation appeals - even in those cases which arise outside the normal geographic jurisdiction of that Court.  In Saldana v. Miami-Dade County, Florida, the claimant, a resident of South Florida, filed a petition for writ of prohibition in the Florida Supreme Court asking the Court to prohibit the First District from hearing the appeal of his workers' compensation case.

 

But in this order dated 8/23/2007, the Supreme Court denied the petition without ever requiring a response from Miami-Dade County or from the First District itself.  The Court concluded that "prohibition is not available to prevent an erroneous exercise of jurisdiction or if another appropriate and adequate legal remedy exists." Therefore, Mr. Saldana will now have his appeal heard by the First District.

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Since 1979, the First District Court of Appeal in Tallahassee has had exclusive, statewide jurisdiction over all workers' compensation appeals.  But that will change if a South Florida claimant has his way.  On 6/15/2007, in Saldana v. Miami-Dade County, Florida (large file, be patient), the claimant filed a petition for writ of prohibition in the Florida Supreme Court in which he challenges the constitutionality of s.440.271, the statute which grants such exclusive appellate jurisdiction.

 

Florida has five intermediate appellate courts which divide the state geographically.  Most appeals from trial courts around the state are filed in the district court of appeal in the geographic area of the state where the trial court sits.  But not workers' compensation appeals.  As part of the 1979 overhaul of the Florida Workers' Compensation Act, the Florida Legislature enacted s.440.271, which says that all workers' compensation appeals must be filed in the First DCA in Tallahassee.  Why was this done?  Well, for one thing, the Legislature believed that it would be better for one court to develop special expertise in this area of the law.  The intent also was to cut down on the number of workers' compensation appeals being filed in the Florida Supreme Court.  By limiting appeals to one district court of appeal - thus eliminating the possibility of inter-district conflict - the Legislature accomplished this goal.

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On June 11, the First District Court of Appeal issued Administrative Order 07-1 in which it announced a new e-filing requirement.  Effective for all cases with a DCA case number of 1D07-3000 and higher, all litigants are encouraged to send a copy of (1) all appellate briefs and (2) all petitions, responses, and replies in original proceedings (petitions for writ of certiorari, prohibition, mandamus, etc.) to the Court via e-mail in addition to the normal number of copies required for that pleading.  The requirement does not apply to motions, etc.  Electronic filings are to be made in Microsoft Word (preferred) or in WordPerfect format.

 

In addition to their physical address and telephone number, attorneys filing pleadings in compliance with the order must also include their business e-mail addresses on the documents which are filed.

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If workers' compensation cases in the Florida Supreme Court are rare, they might be even rarer in the federal courts.  But in Locke v. SunTrust Bank, the Eleventh Circuit Court of Appeals in Atlanta has recently weighed in on a question of workers' compensation immunity under the Florida Workers' Compensation Act. 

 

The plaintiff here was shot during a robbery of the SunTrust bank branch in Winter Haven where she worked.  Rather than claiming workers' compensation benefits, she elected to file a tort suit against her employer.  In order to get around the "exclusive remedy" provisions of s.440.11, Fla. Stat., she alleged in her complaint that SunTrust's actions - or in this case inactions - were so reckless and outrageous that an injury to her was "substantially certain" to have occurred. 

 

Specifically, she alleged that her branch had been robbed before, during which another teller had been pistol-whipped.  Although SunTrust had allegedly thereafter hired a security guard, the guard wasn't on duty on the day of the robbery here because SunTrust had decided to eliminate the security guard's position "for economic reasons."  SunTrust also allegedly failed to take a variety of other actions which would have protected the plaintiff from harm.  The federal district court dismissed her complaint, but she appealed to the Eleventh Circuit.

 

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One of the defenses that has become revitalized under the 2003 amendments to the Florida Workers' Compensation Act is that of "misconduct."  This defense was originally enacted in 1989, and had to do primarily with the defense of a "wage loss" claim where the claimant's post-accident employment was terminated because of his own misconduct on the job.  But since the legislature repealed the "wage loss" provisions in 1994,  there apparently hasn't been very much litigation on the topic.

 

In 2003, however, the legislature enacted s.440.15(4)(e) and specifically made the claimant's post-accident "misconduct" on the job a defense to the payment of temporary partial disability ("TPD") benefits.  But what is "misconduct" exactly?  We now have some guidance from the First District Court of Appeal on that question.

 

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