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

Sen. Dan Gelber (D-Miami Beach) has filed SB 2280 in the Florida Senate in advance of the legislative session which is scheduled to begin next Tuesday, March 3.  This bill would:

• Repeal §440.105(3)(c) which makes it unlawful for an attorney to receive a fee for services in a workers' compensation case which has not been approved by the judge of compensation claims;
• Amend §440.34(6) to permit an injured worker to contract with an attorney for representation in his workers' compensation case;
• Repeal §440.34(7) which permits the award of a one-time fee not to exceed $1,500 to a claimant's attorney who has successfully prosecuted a claim for "medical benefits only";
• Amend §440.491(6)(b) to clarify that temporary total disability benefits paid to an injured worker while he is undergoing a program of "training and education" are to be calculated in the same manner as temporary total disability benefits paid under §440.15(2) and that such benefits are to be paid in addition to the 104-week limit on temporary compensation benefits imposed by §440.15(2).

The bill would also leave undisturbed the result reached by the Florida Supreme Court in Murray v. Mariner Health because it does not amend §440.34(3)'s requirement that attorney's fees be "reasonable."

 

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When an injured worker is unable to obtain "suitable gainful employment" because of injuries sustained on the job, the Department of Education, Div. of Vocational Rehabilitation, offers "training and education" to the worker to assist him in doing so.  And §440.491(6)(b), Fla. Stat., says that a worker who (1) has attained maximum medical improvement, (2) is unable to earn at least 80% of his compensation rate, and (3) requires "training and education" in order to return to "suitable gainful employment," is entitled to receive temporary total disability benefits - so called "rehab TTD" benefits -  from the employer/carrier for up to 52 weeks while he undergoes the retraining.

 

But in Rooms to Go/Broadspire v. Loveall (Fla. Div. Admin. Hrgs. January 13, 2009), the Division of Administrative Hearings ("DOAH") recommended that the worker be denied such disability benefits.  The hearing officer found (1) that the claimant there actually had no physical limitations caused by his on-the-job accident, and (2) that he was discharged from his post-accident employment for "good cause" unrelated to his accident or any resutling physical limitations.

 

Note that even though this case involves the payment of workers' compensation disability benefits, DOAH, not the Office of the Judge of Compensation Claims, has jurisdiction over these cases.

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One of the many changes wrought to the Florida Workers' Compensation Law in 2003 was the enactment of §440.093(3), Fla. Stat., which provides:

 

(3) Subject to the payment of permanent benefits under s.440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee's physical injury or injuries. . . .

 

This subsection was at issue in W.G. Roe & Sons v. Razo-Guevara, decided by the First District Court of Appeal on 12/31/2008.  Although there are precious few facts set forth in the court's short opinion, it would appear that the claimant had both physical and psychological injuries resulting from his compensable accident, but the JCC had limited his entitlement to temporary compensation resulting from the psychological injuries to a period of only six months.

 

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Section 440.15(2)(a) limits temporary compensation benefits to a maximum of 104 weeks. So what if there are two on-the-job accidents which concurrently produce periods of temporary disability?  Is the claimant limited to a maximum of 104 weeks in compensation for both accidents?  No, said the First District Court of Appeal in Auman v. Leverock's Seafood House, decided on 12/16/2008.

 

The claimant injured her knee on 10/17/2004 and her right arm and elbow ten days later on 10/27/2004.  Accident #2 was found to be disabling, and accordingly the E/C paid temporary total disability benefits from 10/28/2004 through 10/27/2006, a total of 104 weeks.  But on 1/12/2005, the claimant had seen a doctor for her knee injury (accident #1) who opined that the claimant needed surgery and that she should not return to work until the surgery was performed.

 

In his December 2007 order, the JCC ordered the E/SA to authorize the surgery, but he awarded temporary total disability benefits for that condition only for the period from 10/26/2006 (the date benefits were exhausted for accident #2) through 1/11/2007 (the date marking the end of the 104-week period commencing on 1/12/2005) for a total of 11 weeks.  The JCC reasoned that because the claimant had already been compensated for accident #2 for the period from 1/12/2005 through 10/26/2006 (a period of 93 weeks), she had only 11 weeks (104 - 93) of entitlement to temporary compensation remaining.

 

The First DCA reversed, reasoning that §440.02(13) defines disability as "incapacity because of the injury" to earn wages.  Therefore, the claimant has a "bank" of 104 weeks of temporary disability benefits for her first accident.

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Facts:  Claimant injures knee in 1995.  Retires voluntarily in 1998.  Never works or even looks for work since then.  Total knee replacement in Augst 2005.  MMI on 11/14/2005.  Claimant files claim for permanent total disability ("PTD") benefits from 11/14/2005 to present and continuing.     

 

Issue:  Is the 2005 claim for PTD benefits barred by the claimant's voluntary retirement in 1998? 

 

Holding:  Nope.  So said the First DCA in Houck v. Lee County School Board, decided on 11/26/2008, reversing the decision of the JCC who said that it was.

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Section 440.15(1)(f)2.b, Fla. Stat., provides in part that an employer/carrier is not required to make any payment of permanent total disability benefits to an injured worker "if the employee refuses to apply for or cooperate with the employer or carrier in applying for social security disability benefits."  Now comes word from this article in the 10/23/2008 edition of the New York Times that a similar provision in a disability policy has landed a major disability insurer in hot water.  According to the article, a federal jury sitting in Boston has found Unum, the nation's largest disability insurer, guilty of committing fraud in some cases by requiring disability recipients to apply for social security disability benefits knowing that they were not eligible for those benefits.  The suit was brought by a whistleblower under the federal False Claims Act, 31 U.S.C. §§3729, et seq.  You can view the amended complaint here.

 

Could this type of lawsuit become a problem for Florida's workers' compensation insurers if they insist on requiring a permanent total disability recipient to apply for Social Security disability benefits?  Possibly, but I really don't think so.  As the article correctly notes, the Social Security Administration defines "disability" more strictly than Unum's policy does. [Unum's policy pays disability benefits in cases where the recipient is unable to perform his "own occupation," while the Social Security Administration requires a recipient to be unable to perform any occupation].  From 1994 through 2003, the Florida Workers' Compensation Law expressly tied the standards for an award of permanent total disability to the standards for an award of Social Security disability benefits.  And after 2003, at least by legislative design, the standards for an award of permanent total disability benefits in Florida have become even stricter.

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In Temples v. WDW Hospitality & Recreation Corp., decided on 8/29/2008, the First District reiterated that an unsuccessful claim for permanent total disability ("PTD") benefits does not necessarily bar a subsequent claim for PTD.   See also Myers v. Hillsborough Co. School Bd., a case which I discussed here.

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Although the "voluntary limitation of income" defense to the payment of temporary partial disability ("TPD") benefits was repealed by the legislature in 1994, see Ch. 93-415, §20, p. 2397, Laws of Fla., the courts continue to use the phrase.  Perhaps this is explained by the fact that the First District has concluded that despite the repeal, under §440.15(4)(a), Fla. Stat., an injured workers' TPD benefits must still be computed on the basis of what the employee is "able to earn."  See, e.g., Fardella v. Genesis Health, Inc., 917 So.2d 276 (Fla. 1st DCA 2005).

 

In Whitaker v. North American Tank Lines, Inc., decided on 8/15/2008, the First District concluded that the claimant did not voluntarily limit his post-accident income by quitting his job with North American Tank Lines because the job required him to work outside his medical limitations.  Therefore, the court reversed the JCC's denial of TPD benefits.

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Res judicata (literally, "a thing decided") is an equitable doctrine which bars the re-litigation of claims and issues that have already been determined in an earlier judicial proceeding.  Does that doctrine bar a claim for permanent total disability benefits where the JCC has previously considered and denied such a claim?  Not necessarily, said the First DCA in Myers v. Hillsborough County School Board, decided on 4/23/2008.

 

Myers had filed a claim for an award of PTD benefits commencing in April 2000 which the JCC denied in April 2004.  In September 2006, he filed a second claim for PTD benefits, this time commencing in September 2005.  Because the second PTD claim covered a different time period, and because the April 2004 denial "did not go to the entire merits of future disability claims," the First DCA said the second PTD claim was not barred by res judicata.

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I wrote here about Wal-Mart Stores, Inc. v. Thompson, where the First DCA strongly implied that the pre-1994 standards governing the quality of proof needed to support an award of permanent total disability benefits apply to post-10/1/2003 claims.

 

In Ferrell Gas v. Childers, decided on 4/7/2008, the court was more direct. Upholding the JCC's award of PTD benefits in which he considered the claimant's vocational abilities as well as his physical limitations, the court specifically compared the pre-1994 statute with the 2003 amendment governing awards of permanent total disability benefits, noting that "the pertinent language in the current version of §440.15(1)(b) is similar to the language under which this court has recognized that it is appropriate to consider both physical and vocational factors."

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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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Another of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was one changing the standards for awards of permanent total disability benefits. The impetus for this particular change apparently was the finding by FCCI in 2003 that permanent total disability claims in Florida were five (5) times the national average. See Staff Analysis SB50-A, page 7. Under the legislative reforms which had been enacted in 1993 and which were in effect up until 10/1/2003, permanent total disability benefits were awardable in cases of "catastrophic injury," which was defined to incorporate the standards for awarding disability benefits used by the Social Security Administration. See §440.02(38)(f), Fla. Stat. (Supp. 2002). 

 

In order to remedy the perceived problem of too many permanent total disability claims, the 2003 Florida Legislature amended the statute to delete "catastrophic injury" – and specifically the Social Security disability standards - as a condition for an award of permanent total disability benefits. 

 

Instead, the Legislature set out certain severe medical conditions such as paralysis, amputation, and blindness, where permanent total disability would be presumed. See §440.15(1)(a), Fla. Stat. (2003). In all other cases, however, the Legislature imposed the following test:

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A firefighter who was diagnosed with peripheral vascular disease was entitled to the presumption afforded by §112.18(1) that the disease was caused by his employment.  And because his condition met or equaled a "Listing," i.e. an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he was presumed to be permanently totally disabled.  Note that this was a pre-10/1/2003 case so that the firefighter was entitled to an award of permanent total disability benefits if he met the test for disability used by the Social Security Administration.  Butler v. City of Jacksonville.

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In 2003, the Florida Legislature amended §440.15(1)(f), the statute providing for so-called "supplemental benefits" in cases where the injured worker has been rendered permanently totally disabled as a result of his on-the-job accident.  Initially enacted in 1974, that statute provided for an annual 5% increase in the amount of the workers' weekly permanent total disability benefits.  Under a 1990 amendment, entitlement to these benefits terminated when the worker reached age 62 "if the employee is eligible for social security benefits under 42 U.S.C. ss. 402 and 423" (Emphasis added).

 

Under the 2003 amendment to the statute (Ch. 2003-412, s.18, Laws of Fla.), annual increases are now limited to 3%, and entitlement to those benefits now terminates at age 62 "regardless of whether the employee has applied for or is eligible to apply for" either social security disability or retirement benefits (Emphasis added).

 

In Wood v. Winter Garden Citrus Growers, the claimant was 66 years old when she was injured on 12/16/2003.  She was accepted as permanently totally disabled by the employer/carrier when she was 67 years old.  Under the First DCA's interpretation of the pre-2003 statute, she would have been eligible for PTD supplemental benefits.  See Burger King v. Moreno, 689 So.2d 288 (Fla. 1st DCA 1997).  Under the 2003 version of the statute, however, she was completely ineligible for PTD supplemental benefits, and she contended that the statutory amendment unconstitutionally denied her the equal protection of the law because it discriminated against her solely on the basis of her age.

 

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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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