ADA Amendments Pass in House
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.
Functions Transferred to Department of Financial Services
HB 5045 has now been signed by Governor Crist and takes effect on July 1, 2008. See Ch. 2008-133, Laws of Fla. The measure transfers various duties such as resolving overutilizaion disputes and certifying expert medical advisors from the Agency for Health Care Administration to the Department of Financial Services.
Legislative Roundup
Sorry for the lack of posting for the last few weeks. I'll try to catch up over the next few days. To begin, let's look at the legislative session which ended on 5/2/2008. What happened? Almost nothing.
SB 2548, the bill which contained a number or changes to the law which I summarized here, was never even taken up by committee.
SB 454 and HB 239, bills which would have affected the employee-leasing industry and which I discussed here, also died.
And SB 2314, a bill which would have made cancer a presumptively compensable for condition for firefighters (see this post), met the same fate.
HB 5045, on the other hand, did pass both chambers. This bill transfers various duties previously assigned to the Agency for Health Care Administration (AHCA) to the Department of Financial Services. It awaits the governor's signature and will be effective on 7/1/2008.
Employee Leasing Company Not Liable for Injuries to Employee of its Client
Crum Services v. Lopez, decided on 3/6/2008, illustrates a situation that arises all too often in the context of employee leasing companies. Crum Services is an employee leasing company (also known as a "professional employer organization" or "PEO") who entered into a contract with P&G Roofing to provide leased employees to P&G. The contract between Crum and P&G provided that Crum would provide workers' compensation coverage to all of P&G's leased employees. In order to be a "leased employee," however, the contract specifically provided that the employee must first complete an employment application, a W-4 withholding form, and a Form I-9, all of which had to be delivered to Crum "before the employee commences employment."
Mr. Del Sol, an employee of P&G, hired Lopez to work for P&G at the rate of $80.00 per day. Lopez did not, however, complete any paperwork for Crum. He was injured on the third day of his employment with P&G, causing him to miss work for about four months. Mr. Del Sol took Lopez to the doctor after the accident and promised to pay him $200.00 per week while he was out of work (about four months), but he never did.
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Cancer Bill for Firefighters and Paramedics Re-Introduced
As he apparently promised he would (see this post), Senator Jeff Atwater, a Republican representing parts of Palm Beach and Broward Counties, has re-introduced a bill identical to last year's bills (see SB 1440 and HB 301 from the 2007 legislative session) which would provide cancer coverage for firefighters and paramedics. See SB 2314.
Specifically, as §112.18(1) currently does for coronary problems and §112.181 does for hepatitis, SB 2314 would create a rebuttable presumption that "any condition or impairment of the health of a firefighter or paramedic". . . which is caused by cancer and results in total or partial disability or death is presumed to have been accidental and suffered in the line of duty unless the contrary is shown by competent evidence." In order to take advantage of the presumption, the firefighter or paramedic must have passed a physical examination before commencing employment which failed to reveal any evidence of such condition.
Employee-Friendly WC Bill Introduced in Florida Senate
On 2/29/2008, Senator Steven R. Wise, a Republican from Northeast Florida, introduced SB 2548 in the Florida Senate. If passed at the upcoming legislative session set to begin on March 4, this bill would provide significant increases in the workers' compensation benefits payable to injured workers. Specifically, the bill:
Continue Reading...Proposed Legislation Would Affect Employee Leasing Companies
Though Florida's annual legislative session is set to begin on March 4, so far only two bills have been filed which would meaningfully affect the area of workers' compensation. Those identical bills, SB 454 and HB 239, concern employee leasing companies. Under these proposed bills:
Continue Reading...(1) the contract between the leasing company and the client company must provide that the leasing company will give notice to all leased employees as to whether their workers’ compensation coverage is being provided by the leasing company or by the client company;
(2) when the leasing company terminates its contractual relationship with the client company, the leasing company must give written notice of that fact, including the date of contract termination, to each leased employee at the employee's last known address;
Supreme Court Denies Review of One-Time-Change-Of-Physician Retroactivity Case
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.
Flareups of Same Disease Result in Multiple Accident Dates
Suppose an employee contracts an occupational disease which has naturally occurring periods of exacerbation and remission. In Orange County Fire Rescue v. Jones, the First DCA held 2-1 that each of those periods of exacerbation can constitute a new and separate "accident."
Why is this important? Well, for one reason, the parties' substantive rights in a workers' compensation case are governed by the law in effect on the date of the "accident." In this case Mr. Jones, a firefighter, had initially contracted Hepatits C in 1992 when the Florida Workers' Compensation Act provided for the payment of "wage loss" benefits upon attaining maximum medical improvement (MMI). But those benefits were only payable where the employee had some actual loss of earnings resulting from his accident or disease. In this case, Mr. Jones returned to work full time as a firefighter after attaining MMI so he didn't qualify for any wage loss benefits. His disease thereafter went into a period of remission.
By the time his disease flared up in 1997, the law had changed. In 1994, the legislature repealed the previous "wage loss" provisions and provided instead for the payment of "permanent impairment" (PI) benefits upon attaining MMI. Unlike wage loss benefits, PI benefits are payable without regard to economic loss. And following the 1997 flareup, Mr. Jones once again returned to work as a firefighter full time. Therefore, under the Court's ruling, Mr. Jones' 20% impairment rating following his 1997 flareup resulted in an extra 60 weeks' worth of PI benefits that he wouldn't have gotten had his rights been governed by the 1992 law.
What is an Intentional Tort?
As in most other states, a Florida employer enjoys immunity from tort liability to its employees for almost all workplace injuries. Instead, the benefits provided by the Florida Workers' Compensation Act provide the "exclusive remedy" for such injuries. One exception to that rule of exclusivity, however, applies when the employer has intentionally harmed its employee. In such cases, the employee is entitled to recover from the employer not just a percentage of his lost wages and his medical bills, but also non-economic damages such as "pain and suffering," "mental anguish," "loss of consortium," and the like. But what kind of proof is necessary to demonstrate such employer intent? That issue was the subject of the Florida Supreme Court's 6/21/2007 decision in Bakerman v. The Bombay Company, Inc.
The Court had previously held that where the employer engaged in conduct which was "substantially certain" to cause harm to the employee, then the employer is subject to tort liability for the employee's resulting injuries. In Bakerman, the Court held 4-3 that in establishing "substantial certainty," the employee need not prove that the employer deliberately concealed a known danger to the employee.
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One-Time-Change-of-Physician Provision Applies to All Accidents
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."
Continue Reading...Effective Date and Retroactive Application of New "First Responders" Bill
The new firefighters and other "first responders" bill which I wrote about here was signed by Governor Crist on June 8 and has now become Ch. 2007-87, Laws of Fla. It will be codified as s.112.1815, Fla. Stat.
- EFFECTIVE DATE
The bill does not provide for a specific effective date, only that it will take effect "upon becoming a law." Because the Governor approved this legislation on 6/8/2007, I believe that it became effective on that date. See Negron v. State (holding that when an act provides that it shall become effective "on becoming a law," it becomes effective immediately upon the Governor's approval).
Continue Reading...2007 Legislative changes
Speaking of first responders, they were the subject of one of the few legislative changes regarding workers' compensation made by the Florida Legislature in its 2007 regular session. Specifically, the legislature enacted CS/SB 746, which creates a new statutory provision, §112.1815, Fla. Stat. This bill:
- Lowers the standard of proof from “clear and convincing evidence” to “a preponderance of the evidence” for first responders in establishing the compensability of occupational diseases or from injuries or diseases resulting from exposure to toxic substances;
- Eliminates for first responders the requirement of proving a physical injury in order to establish the compensability of a mental or nervous injury, although only medical benefits, not compensation benefits, are payable where there is no physical injury;
- Eliminates for first responders the 6-month limit on temporary total disability benefits for mental or nervous injuries payable after maximum medical improvement from the responder’s physical injuries imposed by §440.093(3), Fla. Stat.;
- Eliminates for first responders the 1% limitation on psychiatric impairments imposed by §440.15(3)(c), Fla. Stat.;
- Provides for the continuation of permanent total supplemental disability benefits after age 62 if the first responder’s employer does not participate in the Social Security program;
- Provides for the compensability of any adverse result or complication caused by a smallpox vaccination.
The bill is now before Governor Crist awaiting his signature.
