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.
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 In 1994, the legislature repealed the previous "wage loss" provisions and provided instead for the payment of "permanent impairment" (PI) benefits upon attaining MMI.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.
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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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.
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...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.
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...David A. McCranie has been licensed to practice law in the State of Florida since 1982. He has been aMore...
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