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

Senator Evelyn Lynn (R-Daytona Beach) has introduced SB 1878 in the Florida Senate.  This bill would:

• Require "public employers" - the state, county and municipal governments, and school districts - to comply with OSHA general industry and construction standards by June 30, 2012. (Federal law currently does not include states or their political subdivisions within the definition of "employer" for purposes of OSHA.  See 29 U.S.C. §652(5). 
• Require public employers to collect and retain data concerning workplace injuries using OSHA Form 300, Log of Work-Related Injuries and Illnesses.
• Require the Department of Financial Services to include "a comprehensive analysis and summary of public employers' work-related illnesses, injuries, fatalities, and compensation claims and costs within the annual report required by §440.59, Fla. Stat.

 

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In order to claim "in-line-of-duty" disability benefits from the Florida Retirement System, participants must prove that they cannot render "useful and efficient service as an officer or employee" because of their injuries.  But under HB 697, filed on 2/3/2009, law enforcement officers, correctional officers, emergency medical technicians, paramedics, or community-based correctional probation officers would only need to prove that they are prevented by their injuries from performing "useful and efficient service in the position held" in order to claim entitlement to these benefits.  In other words, if they cannot perform their duties as a law enforcement officer, etc., they are considered "disabled" for purposes of entitlement to "in-line-of-duty" disability benefits even if they are otherwise employable.

 

In addition, the bill would permit any such "in-line-of-duty" disability recipient to become re-employed after 1 calendar month "without limiting or restricting in any way the retirement benefits payable to that person under this chapter" so long as he was not rehired in any Special Risk Class job.

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A paramedic is not a "firefighter" for purposes of §112.18(1), Fla. Stat., the "Heart-Lung" bill.  So said the First District Court of Appeal over twenty years ago in Lansford v. Broward Co. Bd. of Co. Comm., 485 So.2d 845 (Fla. 1st DCA 1986).

 

But now the Eleventh Circuit Court of Appeals in Atlanta has held that paramedics are firefighters for another purpose -- the exemption (29 U.S.C.§203(y) and 207(k)) from the requirement of overtime pay provided by the Fair Labor Standards Act.  See Gonzalez v. City of Deerfield Beach, Florida, decided on 11/24/2008.

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Section 440.105(4)(b), Fla. Stat., makes it unlawful for any person knowingly to make any false, incomplete, or misleading statement in support or denial of any benefit under the Florida Workers' Compensation Law.  And as a recent case from Montana illustrates, if the U.S. Mail or wire services are used to facilitate the making of those false statements, they may violate federal law as well.

 

Bonnie Schreiber, an employee of the U.S Postal Service, injured her back on the job and also developed carpal tunnel syndrome as a result of her employment. Since 1986 she had received disability benefits under the Federal Employees' Compensation Act because of those injuries, and since that time she had periodically submitted OWCP Form 1032, which  requires a recipient to report to the U.S. Department of Labor any work or earnings within the previous 15 months and to report any improvement in her condition.  She always reported that she had been unemployed and that she was incapable of employment.

 

Surveillance evidence, however, showed otherwise.  Schreiber was videotaped engaging in a variety of activities, including bending, twisting, loading and unloading firewood, moving logs and garbage cans, carrying 32-lb. cinder blocks, driving a tractor, and operating a chain saw.  Based on this evidence, she was charged with stealing money from the U.S. government.  In addition, however, because she had used the U.S. Mail to send in her Form 1032, she was indicted for mail fraud (18 U.S.C. §1341) and because her monthly disability benefits were deposited electronically into her bank account, she was indicted for wire fraud (18 U.S.C. §1343).  You can read the indictment here.  On October 1, she was convicted on all four counts of the indictment.  Sentencing is scheduled for January 8.  Press coverage is available here.

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Participants in the Florida Retirement System (most state, county, and municipal employees) are entitled to a disability retirement benefit known as "in-line-of-duty" disability benefits if, because of a disability suffered in the line of duty, they are "prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee."  See §121.091(4)(b), Fla. Stat.  "Disability in line of duty" is defined as "an injury or illness arising out of and in the actual performance of duty required by a member's employment. . . ."  See §121.021(13), Fla. Stat.  Although the criteria for an award of these benefits are similar to those for an award of permanent total disability benefits under the Florida Workers' Compensation Law, there are important differences.  Jernigan v. State, Dept. of Management Services, decided by the First DCA on 10/23/2008, illustrates this point.

 

Mr. Jernigan was employed by the Escambia County Sheriff's Department first as a corrections officer and later as a deputy sheriff.  Two years before his retirement, the department accused him of misconduct in connection with his duties and terminated his employment.  Although he was later rehired, he was assigned to court security instead of returning to his old job, a position which he found humiliating.  Thereafter, his mental condition deteriorated to the point that it forced him to leave his employment.

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I wrote here about Brown, et al. v. Cassens Transport, Inc., a decision from the Sixth Circuit Court of Appeals which was originally issued on 7/10/2007.  Brown and his co-plaintiffs had brought a claim against Cassens Transport, Inc. (the self-insured employer), Crawford & Co. (its workers' compensation servicing agent), and Dr. Saul Margules (the plaintiffs' authorized treating physician) in which they alleged that the defendants had engaged in a pattern of racketeering that denied their workers' compensation claims in violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"). 

 

Specifically, the plaintiffs alleged that Cassens and Crawford deliberately selected and paid unqualified doctors, including Margules, to give fraudulent medical opinions that would support the denial of workers' compensation benefits and that defendants ignored other medical evidence in denying them benefits.  The plaintiffs also claimed that the defendants made fraudulent communications among themselves and to the plaintiffs via mail and wire in violation of the mail and wire fraud statutes, serving as the "predicate acts" for their RICO claims.  You can view the full complaint here.

 

The federal district court for the Eastern District of Michigan dismissed the complaint, however, concluding (1) that the plaintiffs failed to allege that they had relied to their detriment upon the defendants' allegedly fraudulent communications and (2) that the complaint was "reverse preempted" by the McCarran-Ferguson Act, 15 U.S.C. §1012.  (McCarran-Ferguson generally prohibits Congress from legislating in the area of insurance law).  You can view the district court's order dismissing the complaint here.  In its original opinion, the Sixth Circuit agreed with the district court on the detrimental reliance issue and therefore affirmed the dismissal.  Because it affirmed the district court on this ground, it did not address the McCarran-Ferguson reverse preemption issue.

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President Bush signed into law the ADA Amendments Act of 2008 (S. 3406) on 9/25/2008.  The amendments will go into effect on January 1, 2009.  You can read the White House press release here and coverage from the Washington Post here.

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By voice vote on 9/17/2008, the U.S. House of Representatives passed the ADA Amendments Act of 2008 (S. 3406).  The bill now goes to the President, who is expected to sign.

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The U.S. Senate passed the ADA Amendments Act of 2008 (S. 3406) by unanimous consent on 9/11/2008.  The bill now goes to the House for consideration. 

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On 7/31/2008, Senator Tom Harkin (D-Iowa), joined by Senators Obama, McCain and Clinton, among others, introduced S. 3406, which is again designated the "ADA Amendments Act of 2008."  The bill is quite similar to H.R. 3195 on which the Senate conducted a hearing last month. One of the concerns raised at that hearing was H.R.3195's definition of the term "substantially limits" to mean "materially restricts."

 

Under the new bill, the term "materially restricts" has been deleted.  In its place, the bill says simply that "[t]he term 'substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008."  In Section 2, "Findings and Purposes," the bill criticizes several U.S. Supreme Court decisions and sets forth Congress's intent that the definition of "disability" be interpreted broadly.

 

With both major presidential candidates signing on to the bill, I'd guess that we're likely to see it pass.

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The ADA Amendments Act of 2008 (H.R. 3195), which passed the U.S. House of Representatives on June 27, is now being considered by the U.S. Senate.  The Senate Committee on Health, Education, Labor, and Pensions conducted a hearing on the bill on July 15.  You can watch the proceedings and read the testimony of the various witnesses here.

 

Much of the testimony was supportive of the legislation.  But Andrew Grossman of the Heritage Foundation expressed concern in his testimony over what he believes is an ill-advised amendment to the definition of "disability" under the Act.  Although the bill still defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities," the term "substantially limits" has now been defined as "materially restricts" - supposedly a less restrictive definition than the Supreme Court of the United States has given that term in previous court decisions.  See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).  But Mr. Grossman points out that the term "materially restricts" is itself not defined in the statute and thus is susceptible to varying interpretations.  The White House has expressed similar concerns in this June 24 Statement of Administration Policy.

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The Charlotte Observer continued its coverage of the underreporting of workplace injuries on 7/3/2008 with this story.  According to the report, the U.S. Senate has appropriated additional money to fund a recordkeeping enforcement unit within OSHA.  The unit would examine company injury logs and compare them to other available information to determine whether the employer has violated OSHA by failing to record workplace injuries.

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The U.S. House of Representatives Committee on Education and Labor is investigating that question.  And in a majority staff report entitled Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses, the committee answered the question in the affirmative.  Why are they being underreported?  Because, according to the report:

• Certain categories of workers, accounting for a significant portion of the workforce,are excluded from the survey.
• Occupational illnesses are particularly difficult to identify as work-related.
• Immigrants are less likely to report workplace injuries and illnesses.
• Workers are often reluctant to apply for workers’ compensation.
• The musculoskeletal disorder column has been taken off of the OSHA 300 Log.
• Some workers and employers do not understand the reporting system.
• Employers have an incentive to underreport.

What incentives do employers have to underreport?

• Low injury and illness rates decrease the chance of being inspected by OSHA
• Low numbers of injuries and illnesses decrease workers' compensation expenses.
• Low injury and illness rates can earn businesses bonuses and incentives
• Low injury and illness numbers look good to the public and to customers

What methods do employers use to discourage reporting?

• Direct intimidation of workers.
• Bringing seriously injured workers right back to work.
• Discouraging appropriate medical attention.
• Discouraging physicians from reporting injuries or diagnosing illnesses.
• "No fault" absentee policies.
• Safety incentive programs and games.
• Manager incentives and bonuses
• Drug testing after every accident or injury.
• Contractors and contracting out dangerous work
• Missclassification of workers.

These hearings were apparently prompted by The Charlotte Observer's six-part series entitled "The Cruelest Cuts," an indictment of North Carolina's poultry industry.  The PBS program Expose also covered the story in a report entitled "20,000 Cuts a Day." 

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The ADA Amendments Act of 2008 which I wrote about two days ago passed the U.S. House of Representatives on 6/25/2008 by a vote of 402-17, with 15 members not voting.  The Senate will now take up the legislation.

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One question I get from clients fairly often is whether an employer is required to continue offering employment to an injured worker following his on-the-job accident.  As far as the Florida Workers' Compensation Law is concerned, the answer is no.  Although §440.15(6), Fla. Stat. (Supp. 1994), formerly imposed a fine on an employer with more than 50 or more employees which failed to offer appropriate employment within 30 days after the employee reached maximum medical improvement, that section was repealed in 2003. (Of course, §440.205 prohibits an employer from retaliating against an employee for pursuing a workers' compensation claim, but that's another story).

 

And although the Americans with Disabilities Act does prohibit discrimination by a covered employer (i.e., one with 15 or more employees) against an individual with a disability with regard to the hiring or discharge of its employees, because of several decisions from the U.S. Supreme Court which defined "disability" fairly restrictively, many individuals have found it difficult to obtain relief under the Act.  The "ADA Amendments Act of 2008," however, now pending before Congress with apparently large bipartisan support, is designed to overrule those decisions.  You can read a report about the proposed legislation here.  More later on how  the legislation might affect an employer's obligations to rehire or retain its workers disabled because of an on-the-job accident.

 

 

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Howser v. ABB, Inc., a 3/27/2008 decision from the federal Eighth Circuit Court of Appeals involving the Fair Labor Standards Act ("FLSA"), illustrates again how workers' compensation issues sometimes become intertwined with other employment laws.  (The FLSA requires covered employers to pay a minimum hourly wage and overtime pay in certain circumstances to covered employees). 

 

Cynthia Howser was injured in an on-the-job accident while working for ABB, Inc., in Missouri.  ABB, through its workers' compensation claims administrator, Gallagher Bassett, accepted the compensability of the accident under Missouri law.  Howser required extensive medical care but was able to continue working following her accident.  Eventually, Gallagher Bassett  scheduled a medical appointment for Howser, but the appointment was scheduled to occur during her working hours, forcing her to miss time from work.  The purpose of the appointment, according to Gallagher Bassett, was to re-evaluate her work-related injuries. 

 

ABB offered to compensate Howser for the time she missed from work to attend the appointment but told her that it would deduct the hours missed from her accrued paid leave benefits.  Howser declined the offer and opted instead to take an unpaid excused absence so she would not lose any of her accrued leave benefits.  Because she did so, she was never compensated for the 3.8 hours of time she missed to attend the appointment. 

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As I wrote here, when an injured worker agrees to a "washout" of his rights to past and future benefits for an on-the-job accident pursuant to§440.20(11), Fla. Stat., employers and carriers in Florida also routinely require the execution of a "general release" in which the injured worker waives his right to any other employment-related claims as well.  Are such "general releases" really effective to waive all such claims?  In Taylor v Progress Energy Inc., the Fourth Circuit Court of Appeals held that a release in which the employee purported to waive his FMLA rights as part of a severance agreement was ineffective because it was obtained without either court approval or the approval of the Department of Labor.

 

Progress Energy has now filed this petition for writ of certiorari in the Supreme Court of the United States seeking review of the Fourth Circuit's decision.  The petition alleges that the Fourth Circuit's decision is in conflict with the Fifth Circuit Court of Appeals' decision in Faris v. Williams WPC-I, Inc.  For more on the petition and this issue, see this post at SCOTUSblog.

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Although this isn't a workers' compensation case, I think it illustrates how an employer's decision to terminate a disabled worker's employment for violation of  one of its policies can have unintended consequences.

 

This Florida employer had adopted what it called a "no-fault" policy for absences and tardiness.  Under its policy, an employee's absence from or tardiness to work was neither "excused" nor "unexcused."  No doctor's excuse was required.  However, each employee was allotted a certain number of "occurrences" before disciplinary action was taken, and each tardy - no matter what the reason - counted as one-half of an "occurrence."  The employee in this case was a paraplegic who despite his condition had been performing his job satisfactorily for 17 years.  Nevertheless, his medical problems routinely made him late for work.  Because of his disability-related tardiness, he eventually earned a sufficient number of "occurrences" under the employer's new policy to warrant his dismissal.

 

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When settling a claimant's right to future benefits arising under the Florida Workers' Compensation Act, it has become standard practice for the employer/carrier also to require the claimant to execute a "general release" of any other employment-related claims which he might have as well.  The effectiveness of this practice has been called into question, however, in a recent case from the Fourth Circuit Court of Appeals.

 

The Family and Medical Leave Act of 1993 (FMLA) allows an employee to take up to 12 weeks of unpaid leave during any 12-month period for, among other things, a "serious health condition."  As the FMLA Blog points out in this post, a federal regulation, 29 C.F.R. s.825.220(d), provdes that "[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA."  In Taylor v. Progress Energy, Inc., decided on 7/3/2007, the Fourth Circuit Court of Appeals held that this regulation means exactly what it says - it prohibits an employee from waiving his FMLA rights without approval by a court or by the Department of Labor.

 

The Eleventh Circuit Court of Appeals (which covers Florida) has not addressed this question.  But if the Fourth Circuit's reasoning is adopted, then post-accident agreements which purport to release an employee's rights under the FMLA without prior approval will be ineffective.

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Here's an interesting case from the Sixth Circuit U.S. Court of Appeals, decided on 7/10/2007.  The plaintiffs there were injured workers who alleged that, in order to deprive them of benefits under the Michigan Workers' Disability Compensation Act,  their self-insured employer, its workers' compensation servicing agent, and the authorized treating physician had sent fraudulent communications among themselves and to the plaintiffs by mail and by wire in violation of federal law, and that these violations constituted the  "predicate acts" necessary to state a civil cause of action against them for violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO").

 

In a 2-1 decision, the Sixth Circuit affimed the federal district court's dismissal of the complaint for failure to state a cause of action - but not because the plaintiffs' allegations of mail and wire fraud were insufficient.  Under the law prevailing in the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee), a plaintiff alleging a RICO violation must allege and prove that he relied upon the defendants' alleged fraudulent acts.  [RICO provides a private right of action and treble damages for "any person injured in his business or property by reason of a violation" of the act].  Because allegations of detrimental reliance were absent from the plaintiffs' complaint, the appellate court agreed that the complaint failed to state a cause of action.  Nevertheless, two of the three judges argued that the issue should be considered by the entire Court sitting en banc. 

 

Thanks to How Appealing for the heads up on this case.

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In Escambia Co. Sheriff's Dept. v. Grice, the Florida Supreme Court held that the three-way combination of an injured worker's permanent total disability benefits, social security disability benefits, and in-line-of-duty disability benefits [see s.121.091(4)] may not exceed 100% of the worker's average weekly wage.  To the extent that they do, workers' compensation benefits must be reduced.  The policy underlying the decision was to prevent the injured worker from collecting more in disability benefits than he did in wages while working.

 

Just exactly what benefits get thrown in to the "Grice" calculation, however, has been the subject of extensive litigation since the decision was rendered in 1997.  Social security retirement benefits are not.  See Dixon v. Pasadena Yacht & Country Club, 731 So.2d 141 (Fla. 1st DCA 1999).  Neither is the health insurance subsidy received by workers entitled to in-line-of-duty disability benefits.  See State v. Herny, 781 So.2d 1067 (Fla. 2001).

 

But in State of Florida Marine Patrol v. Clifton, decided on 7/6/2007, the First District reversed the order of the JCC and held that Social Security disability benefits which are received by the claimant's dependents are included in the offset calculations.  The Court noted that unlike the benefits at issue in Dixon and Herny, the benefits payable to the claimant's children in this case were payable solely because of the claimant's disability.

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