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

Section 440.205, Fla. Stat., provides:

Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.

The Supreme Court of Florida has held that violation of this section by an employer creates a private cause of action in tort in favor of an employee.  See Smith v. Piezo Technology, 427 So.2d 182 (Fla. 1983).

 

In Thigpen v. UPS, Inc., decided by the Fourth DCA on 9/10/2008, UPS fired Thigpen, one of its delivery  drivers.  UPS insisted that Thigpen's employment was terminated because of his failure to deliver a package to a customer, but Thigpen asserted that this reason was pretextual.  The real reason, he said, was in order to retaliate against him for his having previously filed a workers' compensation claim.  In support of his claim, Thigpen introduced a company e-mail which had urged UPS supervisors to crack down on "injury repeaters," that is, on employees who had sustained multiple injuries on the job and who frequently sought workers' compensation benefits.  Thigpen had in fact been injured on the job on multiple occasions.  The jury agreed with Thigpen, awarding him $6M in damages, including about $670,000 in economic damages, and $5.3M in punitive damages.

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U.S. Agri-Chemicals Corp. v. Camacho, decided on 3/10/2008, reminds us that only the medical opinions of: (1) an authorized treating physician; (2) an independent medical examiner; or (3) an expert medical advisor are admissible in evidence in a Florida workers' compensation proceeding.  Because Dr. van Lovern was none of the above, the JCC erred in admitting his testimony into evidence, said the First DCA, although such error was harmless in view of the JCC's other finding that he would have reached the same result even without the admission of Dr. van Lovern's opinions.  The JCC also rejected the employer/carrier's argument that the JCC should have appointed an expert medical advisor to resolve a conflict in the medical testimony because they made no timely request that he do so.

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What happens if the JCC appoints an expert medical advisor ("EMA") to resolve a conflict in the medical testimony, but the EMA fails to express an opinion on the issue?  That's what happened in Fitzgerald v. Osceola County School Board, decided on 2/19/2008.  The JCC had used the EMA's testimony in support of his conclusion that the claimant's respiratory problems were unrelated to her employment.  Concluding that the EMA had actually expressed no conclusive opinions on the issues, the court reversed and remanded to the JCC for further consideration, saying that such testimony from the EMA, though inconclusive, nevertheless "established a metric by which the JCC might measure the credibility and and weight of all the other evidence presented...."

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After his workers' compensation carrier notified John Auster, a retired New Orleans police officer, that it intended to terminate a portion of his workers' compensation benefits, Auster told his psychotherapist that he intended to commit acts of violence against some of the carrier's employees if they did.  The psychotherapist, under Louisiana's "duty-to-warn" statute, conveyed the threats to the carrier's employees.  One of the employees called the police, who in turn contacted the FBI, following which Auster was indicted for violating the federal extortion statute [18 U.S.C. §1951].

 

Auster moved to suppress evidence of his statements to his psychotherapist, citing the psychotherapist-patient privilege, and the district court granted the motion.  But on appeal, the Fifth Circuit Court of Appeals reversed, concluding that the privilege did not apply because Auster knew that his psychotherapist would convey his threats to the carrier's employees.  U.S. v. Auster.

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According to the Mayo Clinic's website, doctors don't yet know what causes fibromyalgia, a condition whose symptoms can include widespread pain, fatigue and sleep disturbances, irritable bowel syndrome, headaches and facial pain, and heightened sensitivity, among others.  Some experts, however, think the condition can be caused by trauma.  What standards should govern the admissibility at trial of expert testimony in that regard?  Specifically, should such testimony meet standard for admissibility set forth in Frye v. United States that the testimony have gained "general acceptance" in the scientific community? 

 

In Marsh v. Valyou, decided on 11/21/2007, the Florida Supreme Court said no.  A majority of the Court concluded that the Frye standard should not apply because the testimony of the experts in the case was "pure opinion," that is, it was based upon a review of the plaintiff's medical history, clinical physical examinations, their own experience, published research, and differential diagnosis, and not upon any "new or novel" scientific theory.  The majority further concluded that even if Frye applied, its standards were satisfied by the testimony presented here.

 

Two of the justices in the majority (Anstead and Pariente), would have gone further and, similar to the United States Supreme Court's holding in Daubert v. Merrell Dow Pharmaceuticals, would have held that Frye has been superseded by the legislature's adoption of the Florida Evidence Code.  

 

Marsh was not a workers' compensation case, but it's important to workers' compensation practitioners because: (1) the Florida Evidence Code does govern the admissibility of evidence in Florida workers' compensation proceedings [see Odom v. Wekiva Concrete Products, 443 So.2d 331 (Fla. 1st DCA 1983) ]; (2) the Florida Supreme Court has specifically held that Frye applies in workers' compensation proceedings [see U.S. Sugar Corp. v. Henson, ]; and (3) whether an injured worker's fibromyalgia is causally related to the trauma of his industrial accident is not an uncommon dispute in workers compensation cases.

 

One final note about Marsh: it shows once again the apparent idealogical rift which currently exists on the Florida Supreme Court.  The four-justice majority in Marsh (Chief Justice Lewis, along with justices Anstead, Pariente, and Quince) is the same majority which recently decided to grant review in Murray v. Mariners Health, a fact which I discussed here.

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