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

JCC Castiello in Miami has ruled once again that notwithstanding the express language of §440.13(2)(b)1, Fla. Stat., non-professional attendant care should be compensated using the Florida minimum wage, not the federal minimum wage.  See Devito v. The Martin Bower Co., decided on September 18.  Judge Castiello previously reached the same conclusion in Tapia v. Prestressed Systems, Inc.

 

By the way, the Florida minimum wage is scheduled to increase to $7.21 per hour on January 1, 2009. 

 

Tip of the hat to Randy Porcher for alerting me to this order.  Randy tells me that although an appeal was taken from the order, the case subsequently settled, so there'll be no First DCA review of this issue yet.

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The JCC did not err in ordering the E/C to provide continuing medical care to the claimant through a physician which the claimant had previously designated as his "independent medical examiner."  That was the First DCA's holding in Protocol Communications, Inc. v. Andrews, decided on 9/26/2008.

 

Section 440.13(5)(a), Fla. Stat., provides in part that "[t]he independent medical examiner may not provide followup care if such recommendation for care is found to be medically necessary."  In Andrews, the employer had initially accepted the compensability of the claimant's accident but later reversed its position and denied further benefits.  Thereafter, the claimant obtained medical treatment on his own, and he designated that physician as his "independent medical examiner" in his subsequent claim against the E/C.  Andrews ultimately prevailed in his claim, and the JCC ordered the E/C to provide ongoing medical care through his independent medical examiner/treating physician. 

 

Affirming the JCC, the First DCA pointed to other language in the statute which states that "[i]f the parties agree, the [independent medical] examiner may be a health care provider treating or providing other care to the employee."  Although the parties did not agree, the court noted that neither did the E/C object to the designation of the doctor as an independent medical examiner.  The court also noted that because the carrier had failed to furnish necessary medical treatment, the claimant was entitled to obtain appropriate treatment on his own.  "The subsequent designation of that doctor as the claimant's independent medical examiner," said the court, "whereby his testimony could be presented at the hearing, does not negate his status as the treating doctor."

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Section 440.13(2)(f), Fla. Stat., entitles the claimant to a "one-time-change-of-physician" upon his written request "during the course of treatment" for an on-the-job accident.  Does such a written request come "during the course of treatment" when it is made after the initial treating physician has discharged the claimant from his care and opined that "[n]o further treatment is indicated for this patient"?  Yes, said the First District Court of Appeal in Providence Property and Casualty v. Wilson, decided on 9/23/2008.

 

Consistent with its opinion in Dawson v. Clerk of the Circuit Court - Hillsborough County, decided by another panel of the court on the same day, the court also held that upon proper request the E/C must authorize the requested change — even in cases where the E/C contend that the industrial accident is not the "major contributing cause" of the need for treatment.  "[I]f, after authorization of the one-time change," said the court, "the E/C are still of the opinion that the treatment recommended or provided is unnecessary, or is unrelated to the industrial accident, the E/C can deny authorization for such treatment pending resolution of the issue by the JCC."  

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When the claimant's treating physician opines that the claimant's industrial accident is no longer the "major contributing cause" of her ongoing medical problems, is the claimant entitled to a "one-time-change-of-physician" in order to obtain a contrary medical opinion?  Yes, said the First DCA in Dawson v. Clerk of the Circuit Court - Hillsborough County, reversing the JCC who had concluded that in such circumstances the claimant's only recourse is to request an "independent medical examination."

 

In the same case, at the E/C's request the JCC had appointed an "expert medical advisor" to resolve a conflict between two physicians on the issue of whether the claimant's industrial accident was the "major contributing cause" of her shoulder injuries. [Section 440.13(9) authorizes the appointment of an expert medical advisor ("EMA") when there is conflict in the medical testimony].  The EMA had concluded that the claimant's shoulder injuries were not caused by her accident, and accordingly the JCC denied any treatment for those problems.  But the First DCA reversed, holding that an EMA should never have been appointed in the first place because in fact there was never any "conflict" in the medical testimony.  The court noted that the physician who gave the allegedly conflicting opinion on the issue of causation (1) had not been authorized by the carrier to treat the shoulder, (2) never examined the claimant's shoulder, and (3) did not review any diagnostic studies or or medical records pertaining to the claimant's shoulder.  Under these circumstances, there was insufficient evidence of a "conflict" on the issue of causation.

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One of the changes wrought by the 2003 amendments to the Florida Workers' Compensation Law concerned the employee's burden of proving that his on-the-job accident is the "major contributing cause" of a given medical condition and the need for treatment of that condition.  Under those amendments, "[m]ajor contributing cause must be demonstrated by medical evidence only" (emphasis added).  See §440.09(1), Fla. Stat.

 

In Gallagher Bassett Services-Orlando v. Mathis, decided on 9/22/2008, the First DCA reversed the JCC's finding that the claimant's 2006 on-the-job accident was the "major contributing cause" of her cervical injuries.  The claimant's IME physician, upon whom the JCC had relied in making her finding, was unable to determine from his examination and the claimant's medical records whether her pre-existing cervical injuries were exacerbated by the 2006 accident.  Significantly, the court also noted that in making her findings on the "major contributing cause" issue the JCC could not rely upon the lay testimony of Mathis and her husband that her pain level increased significantly after the 2006 accident.

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Over the weekend, the St. Pete Times ran this heartrending story about James Dolan, a 34-year-old Radio Shack employee who was shot in the head by a gun-wielding assailant while on the job in 2004.  The attack not only left him totally blind, but suffering from post-traumatic stress syndrome as well.  His story was featured on the ABC television show Extreme Makeover Home Edition in 2005 after show's crew made his home handicapped-accessible.  You can see a clip from the show here.

 

But the story doesn't have a happy ending.  Mr. Dolan's wife had to quit her job in order to provide care for him.  The effect of that lost family income was compounded by the fact that the Dolans' property taxes and utility bills have increased because of the repairs to the home.

 

The Dolans requested Radio Shack's workers' compensation carrier, Liberty Mutual, to provide 12 hours per day in attendant care benefits to compensate Mrs. Dolan for the care that she has had to provide to her husband, but the carrier refused.  Instead, they hired vocational rehabilitation consultants who said not only that Mr. Dolan did not require any attendant care, but that he could actually return to work.  The JCC did award the requested benefits in this 2/13/2008 order, but Liberty Mutual appealed.  Fortunately for the Dolans, Liberty's attorney didn't file the notice of appeal within 30 days of the JCC's order, and the First DCA therefore dismissed the appeal. 

 

Exasperated with Liberty Mutual's handling of the claim, the Dolans have now sued them for intentional infliction of emotional distress.  Such causes of action against workers' compensation carriers were authorized by the Florida Supreme Court in Aguilera v. Inservices, Inc.  More on this deplorable situation later.

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My very first post on this blog concerned a footnote in Coca-Cola Bottling Co. v. Perdue, decided by the First District on 4/9/2007, in which the court speculated whether the Florida Supreme Court's 45-year-old decision in Victor Wine & Liquor, Inc., v. Beasley, 141 So.2d 581 (Fla. 1962), continued to be viable in light of the legislature's 2003 amendment to §440.09(1) which requires the claimant to prove that his industrial accident caused more than 50% of the injury and need for treatment.  Now, in Speed v. Securitas USA, decided on 8/27/2008, without saying so expressly, the court has cast further doubt not only upon Victor Wine, but on other Florida Supreme Court decisions holding that, in most circumstances, the heart attack must result from an unusual physical exertion in order to be compensable.

 

• HEART ATTACKS AND OTHER INTERNAL FAILURES UNDER VICTOR WINE, MOSCA, AND ZUNDELL 

Victor Wine held that a heart attack is not compensable under the Florida Workers' Compensation Law unless it results from "an unusual strain or over-exertion not routine to the type of work [the claimant] was accustomed to performing."  Id. at 587.  Later, extending the Victor Wine rule, the Florida Supreme Court also concluded that the "unusual strain or over-exertion" must be a physical one.  "Emotional strain is too elusive a factor to be utilized, independent of any physical activity, in determining whether there is a causal connection between a heart attack or other internal failure of the cardiovascular system and the claimant's employment."  Richard E. Mosca & Co., Inc. v. Mosca, 362 So.2d 1340, 1342 (Fla. 1978). 

 

In Zundell v. Dade Co. School Bd., 636 So.2d 8 (Fla. 1994), however, the supreme court held that the Victor Wine rule does not apply where there is no evidence of a pre-existing condition which contributes to the injury.  Because there was no such evidence in Zundell, the claimant's cerebral hemorrhage was compensable even though it resulted from a mere verbal altercation with a student, i.e., from emotional strain alone with no accompanying "unusual strain or over-exertion."

Continue Reading...

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Section 440.13(14)(c) says that an injured worker must make a $10.00 co-payment for most medical treatment rendered after he reaches maximum medical improvement.  So who gets the co-payment? The doctor? The employer/carrier?

 

Under proposed Fla. Admin. Code R. 69L-7.020, which would adopt the 2008 Edition of the Florida Workers' Compensation Health Care Provider Reimbursement Manual (aka the "fee schedule"), the employer/carrier is the beneficiary.  The new fee schedule specifies that "while health care providers are entitled to collect a $10.00 co-payment from injured workers who have reached maximum medical improvement, such co-payments are not in addition to any maximum reimbursement allowance or fee agreement, and that the amount of reimbursement otherwise payable by the insurer shall be reduced by the amount of the co-payment." 

 

 A hearing on the proposed rule is scheduled for September 9.

 

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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 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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Another judge of compensation claims has weighed in on whether non-professional attendant care must be compensated at the federal minimum wage (currently $5.85/hr.) or at the Florida minimum wage (currently $6.79/hr., effective 1/1/2008).  As I wrote here, JCC Castiello and JCC Medina-Shore have concluded that the Florida minimum wage applies to such care notwithstanding the express requirement in §440.13(2)(b)1 that such care be compensated at "the federal minimum hourly wage" (emphasis added).  See Tapia v. Prestressed Systems and Valdes v. Galco Construction.

 

JCC Lewis in Ft. Lauderdale disagrees.  In Gilstrap v. Broward Correctional Institute, decided on 4/24/2008, he concludes that because the care-giver is not an employee of the employer/carrier, the "clear and unambiguous language of the statute" controls and that the care must be recompensed at the federal minimum wage. [Note:  the federal minimum wage is set to increase to $6.55/hr. on 7/24/2008 and to $7.25/hr. on 7/24/2009.  Florida's minimum wage increases each year on January 1, as determined by the Agency for Workforce Innovation].

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In AMS Staff Leasing, Inc., v. Arreola, the employee, an undocumented alien who had entered illegally into the United States from Mexico, was injured in an on-the-job accident while working in Florida. After undergoing twelve post-accident surgical procedures, his physician recommended that he undergo yet another procedure.  By that time, however, he had moved back to his native Mexico and was unable to return to the United States legally in order to receive the recommended treatment. 

 

The JCC ordered the Employer/Carrier to authorize medical treatment for the claimant in Mexico, and the First District affirmed.  The E/C had argued that because the physician in Mexico was not subject to the more rigorous educational and professional standards required of physicians in the United States, he was not a "physician" within the meaning of §440.13(1)(q), and therefore they were not required to authorize treatment by him.

 

The Court specifically refused to comment on whether the employee might have committed "fraud" by presenting false evidence of his identity in the form of a fake social security number as discussed in this post.  See footnote 3 of the opinion.

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"In any dispute concerning overutilization, medical benefits, compensability, or disability benefits under this chapter, the carrier or the employee may select an independent medical examiner."  So begins §440.13(5), Fla. Stat.  Nelis Pena, an injured worker, filed a petition for benefits claiming entitlement to various disability benefits under the Florida Workers' Compensation Law and subsequently filed this Motion to Compel the Employer/Carrier to provide a psychiatric independent medical examination ("IME").  The JCC denied the motion, and Pena therefore filed this petition for writ of certiorari with the First District Court of Appeal.  According to the argument contained in the petition, the Employer/Carrier had argued that the Claimant was not entitled to an IME because there was no "dispute" concerning either "overutilization, medical benefits, compensability, or disability."  In any event, the Employer/Carrier confessed before the First District Court of Appeal that the JCC had committed error, and the Court therefore granted the petition in a short opinion dated 1/23/2008.  Pena v. Tampa Maid Foods, Inc.

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The federal minimum wage increases today from $5.15 per hour to $5.85 per hour.  That means that compensation for non-professional attendant care also increases because it is tied to the federal minimum wage by s.440.13(2)(b)1, Fla. Stat.  Or, as I wrote about here, if you believe that s.440.13(2)(b)1 has been superseded by the 2005 amendment to the Florida Constitution (Article X, s.24) which mandates a higher minimum wage in Florida, then the compensation rate for non-professional attendant care currently stands at $6.67 per hour.

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On 6/29/2007, the Florida Supreme Court denied review in the Butler v. Bay Center case which I wrote about here.  Therefore the decision of the First DCA, which held that the one-time-change-of-physician provision is to be applied retroactively, stands.

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The one-time-change-of physician provision [s.440.13(2)(f)] applies to all accidents, whether they occurred before the effective date of the statute or not.  That's what the First DCA said in its 2-1 decision in Butler v. Bay Center.  I'll discuss the specifics of this important case below.  But first, a little background.

• THE PRE-1994 LAW

Before 1994, a claimant's right to change physicians was governed by s.440.13(3), Fla. Stat., which provided that "[i]f an injured employee objects to the medical attendance furnished by the employer. . . it shall be the duty of the employer to select another physician. . . ."   Construing that version of the statute, the First District had held that although the Florida Workers' Compensation Act gives the initial right of selection of a treating physician to the employer/carrier, "[i]t. . . reserves to claimant the right to reject such selection, require another authorization, or to seek authorization by the deputy for a physician of claimant's choice."  Teimer v. Pixie Playmates, 532 So.2d 37, 40 (Fla. 1st DCA 1988).  Tiemer further held that under the pre-1994 version of the statute the claimant "has the right to veto the employer and carrier's selection and compel the employer and carrier to authorize another selection."

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Does the new minimum wage amendment to the Florida Constitution supersede the statutory requirement of the Florida Workers' Compensation Act that non-professional attendant care be compensated at the federal minimum wage rate?  Yes, say at least two judges of compensation claims.  

 

Section 440.13(2)(b)1, Fla. Stat. (2006), clearly says that non-professional attendant care provided by an injured worker's family members shall be compensated at the federal minimum wage rate, assuming that the family member is either (1) unemployed or (2) providing the attendant care during his non-working hours.   Currently, the federal minimum wage stands at $5.15 per hour.

 

Effective 5/2/2005, however, the citizens of Florida adopted an amendment to the state constitution, Article X, Section 24, which requires the minimum wage for all Florida employees to be $6.15 per hour.  The question, then, is whether family members providing non-professional attendant care are to be paid at the Florida or federal minimum wage.   

 

Continue Reading...

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For over 40 years, heart attacks and other "internal failures of the cardiovascular system" occurring on the job have generally not been compensable under the Florida Workers' Compensation Act.  Known as the "Victor Wine" rule (taken from the name of the case which decided the issue), it required the employee to demonstrate that his heart attack resulted from an "unusual strain or overexertion" not routine to the type of employment he was accustomed to performing - the purpose being to separate those heart attacks that were truly work-related from those that weren't.

 

In a footnote to this rececent decision, however, one panel of the First District Court of Appeal called into question whether the "Victor Wine" test remains good law.  The Court noted that under this 2003 amendment to the law, an employee must now prove that his on-the-job accident caused more than 50% of his injury and resulting need for treatment.  Requiring him to comply with the "Victor Wine" test as well, said the Court, "seems unduly burdensome and inappropriate."

 

Resolution of the issue will have to await another day, however.  Because the claimant's accident in that case occurred before 10/1/2003, the effective date of the statutory amendments, the Court concluded that it need not address the question.

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