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

In Sanders v. City of Orlando, decided on 9/25/2008, a case I discussed here, the Florida Supreme Court has held 5-2 that the judges of compensation claims do have jurisdiction to vacate or set aside lump-sum settlement agreements which had previously been entered into pursuant to the terms of §440.20(11)(c), Fla. Stat., reversing the decision of the First DCA which had held to the contrary.  [The case was originally styled Flamily v. City of Orlando, but Mr. Flamily died during the litigation, and therefore the personal representative of his estate was substituted].

 

To summarize the facts briefly, Mr. Flamily was employed by the City of Orlando as a firefighter.  He developed heart problems which, by virtue of §112.18(1), Fla. Stat. (the "Heart-Lung" Bill), were presumptively caused by his employment.  Those problems eventually resulted in his permanent total disability, and in December 1996 Flamily agreed to settle his right to future compensation benefits from the City for a lump sum.  The settlement documents signed by the parties at the time contained language stating that Flamily "waived any future workers' compensation claims that were either known or unknown" at the time of the settlement.

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The standard of review employed by the First DCA is often critical to the outcome of the case.  In Moore v. Hillsborough Co. School Bd., for example, the court noted that a JCC's decision denying costs and an upward departure from the statutory attorney's fee schedule (in a pre-2003 case) is reviewed for "abuse of discretion."  Under that standard of review, the court held that the JCC did not abuse his discretion in refusing to depart from the statutory fee schedule and in failing to award costs associated with legal assistants where the claimant did not satisfy her burden of proving that the time spent by the assistants was nonclerical.

 

On the other hand, the court held that the JCC erred "as a matter of law" in declining to award reimbursement for certain deposition costs if the testimony was used in any way to support the award of benefits.

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As I discussed here, "res judicata" is an equitable doctrine that bars the re-litigation of claims and issues that have already been litigated.  But the doctrine also bars claims and issues that could have been but were not litigated at an earlier proceeding.  That's what was at issue in Thomas v. Eckerd Drugs, decided on 8/15/2008.

 

Ms. Thomas went to a hearing before the JCC in March 2005 with respect to several issues, including the compensability of a lumbar problem allegedly stemming from her otherwise compensable on-the-job accident.  Although she had undergone a lumbar MRI scan prior to that hearing, she had never been told the results of the exam.  In fact, she had been told by her personal physicians that there was "nothing wrong" with her back.  Having no evidence of her true diagnosis or its causal connection to the accident, she therefore dismissed her lumbar claims prior to the hearing.   

 

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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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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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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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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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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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