Florida law offers a mechanism for making non-compensable workers’ compensation injuries compensable. A key element to the equation is the date when the Employer/Carrier (E/C) knew or should have known that the injury may not be compensable. See Travelers Ins. Co. v. Collins, 825 So. 2d 451 (Fla. 1st DCA 2002).

Unless an accident is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought, the injury is not compensable. Section 440.09(1), Florida Statutes (2017). This principle allows the E/C to avoid furnishing workers’ compensation benefits when the combination of preexisting conditions exceed the need for care and treatment caused by the workplace accident. It is known as the major contributing cause (MCC) defense.

The E/C can waive this defense, either intentionally or inadvertently. The consequence of both is the same: the questionable injury becomes compensable.

An intentional waiver occurs when the E/C affirmatively decides that it will accept rather than contest compensability. The decision is always based on a cost analysis.

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scales-of-justice-300x203Workers’ compensation claimants have the burden of showing that the workplace accident is the major contributing cause of an injury. Section 440.09(1), Florida Statutes (2017). Major contributing cause, or MCC, means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. Sec. 440.09(1).

This is not an issue in every case. Many injuries are accepted by the Employer/Carrier (E/C) without dispute. Doing so prevents the E/C from later denying compensability of the accepted injuries. However, if the E/C is uncertain of its obligation to provide benefits, it may choose to provide benefits under a reservation of rights pursuant to section 440.20(4), Florida Statutes (2017).

Unlike the unconditional acceptance, this section affords E/C the option of denying compensability within 120 days after the initial provision of compensation or benefits. If, however, the E/C fails to deny compensability of an injury within 120 days after the initial provision of benefits for an injury, it waives the right to deny compensability of this injury “unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.” § 440.20(4), Fla. Stat. (2017). See, e.g., McIntosh v. CVS Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014); Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA 2000); see also § 440.192(8), Fla. Stat. (2017) (“A carrier that does not deny compensability in accordance with s. 440.20(4) is deemed to have accepted the employee’s injuries as compensable, unless it can establish material facts relevant to the issue of compensability that could not have been discovered . . .”)

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accident-1307665-162x300Florida law grants workers’ compensation insurance companies the exclusive authority to control the selection of the injured worker’s treating medical providers. Section 440.13(2), Florida Statutes (2017). This leads to carriers repeatedly selecting providers with a track record of siding with them.

Thankfully, the authority is not unbridled. One of the main restrictions concerns the proximity of the medical provider to the claimant’s community of residence. In Wright v. Golf Drive Residence, Inc., 412 So. 2d 884 (Fla. 1st DCA 1982), the JCC‘s decision requiring the claimant to travel from her home in Naples to Fort Myers for further treatment was reversed on appeal. The court reasoned that it was unreasonable for the deputy to require her to travel outside her home community in Naples where adequate treatment is available.* A similar result was reached in Hall’s Camp, Inc. v. Decker, 394 So. 2d 1041 (Fla. 1st DCA 1981), where the trial court was affirmed for ordering the carrier to pay for medical care provided by the only specialist in the claimant’s area. The appellate court held that it would be unreasonable for the carrier to have required the claimant to travel outside of her local Arkansas community for treatment by another orthopedic surgeon.

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handshake-268x300Various Florida statutes require court approval of wrongful death settlements and settlements involving minors (if the amounts received in the aggregate exceed $15,000; See Section 744.301(2), Florida Statutes (2017)). Does this mean that settlements in these situations cannot be negotiated to resolution by the parties without first obtaining court approval? The answer is that the parties can come to a binding agreement before presenting the deal to the court, with the understanding, however, that if the court rejects deal, the parties are unbound.

Berges v. Infinity Insurance Company, 896 So.2d 665 (Fla, 2004) is the leading case on the subject. It involved the wrongful death of a wife/mother and serious personal injuries to her minor child. After the surviving spouse/natural father of the minor child rejected the carrier’s late tender of its $10,000/$20,000 policy limits, the case proceeded to trial on the wrongful death claim and the personal injury claim. The jury returned a $911,400 verdict in favor of the estate on the wrongful death claim and a $500,000 verdict on the personal injury claim involving the minor. As a result of these combined verdicts, on the theory of bad faith the insured sought to make Infinity pay the full judgments. The jury found that Infinity acted in bad faith.

Infinity appealed the trial court’s judgment and the Florida Second District Court of Appeal reversed. According to the district court, “because Taylor [the surviving spouse/natural father of the minor] had neither been appointed personal representative of his wife’s estate nor been given court approval for the proposed settlement of his minor daughter’s claim, he was without authority to make a valid settlement offer to Infinity.” See Infinity Insurance Co. v. Berges, 806 So.2d 504, 508 (Fla. 2d DCA 2001). The Second District reasoned that the spouse/father’s offer to settle “was merely an expression of his intent to settle once he became authorized to make an offer.”

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pinoccioFlorida’s experience with crafting workers’ compensation legislation is a case study in the danger of accepting without challenge the statements of insurance industry lobbyists. One after the other during Florida’s last legislative session (March – May, 2017), insurance industry lobbyists stood before committees of elected officials and made baseless comments for the simple purpose of  increasing insurance company profits, without regard for the health and welfare of hard working men and women and their families. None testified under oath so they were free to pull crap from their asses to feed to legislators, which they did in abundance. Had they been required to take an oath, not a one of them would have said a word.

The following article debunks the comments of every insurance industry shill who tried to influence legislation.

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Workers’ Comp Drops Off The Legislative Map

Oct 6, 2017

Just a year after dire predictions that the state’s economy was in peril due to rising insurance costs, Florida businesses could see an average 9.3 percent reduction in workers’ compensation premiums in the coming year under a rate filing Insurance Commissioner David Altmaier will consider later this month.

While it may be good news for those who pay the premiums, the proposed reduction filed by the National Council on Compensation Insurance presents a hurdle for business lobbyists and special interests who have warned lawmakers for more than a year that a pair of 2016 Florida Supreme Court rulings would drive workers’ compensation rates so high that employers would be forced to slash jobs.

Bill Herrle, executive director of the National Federation of Independent Business in Florida, acknowledged that after traveling the state in the summer of 2016 discussing the issue and spending the majority of the 2017 session unsuccessfully pushing a workers’ compensation bill, it’s not a priority this year.

Enthusiasm to tackle the complicated issue has waned since the proposed 9.3 percent reduction was filed in August, he said.

“We still believe the rates are going to go up, but when rates are going down, we don’t have wind in our sails,” Herrle said.

House Commerce Chairman Jim Boyd, R-Bradenton, worries about attorney involvement in the workers’ compensation insurance system and has asked members of his committee to receive an update during a meeting next week in Tallahassee.

Nevertheless, Boyd, an insurance agent, acknowledged that there isn’t a need for legislative action if Altmaier approves lower workers’ compensation rates for the coming year.

“I’m not sure doing anything this year would be appropriate or prudent,” Boyd said.

Workers’ compensation is a no-fault system meant to protect workers and employers. It is supposed to provide workers who are injured on the job access to medical benefits they need to be made whole. Those who are injured for at least eight days also are entitled to indemnity benefits, or lost wages. In exchange for providing those benefits, employers generally cannot be sued in court for causing injuries.

While the system is supposed to be self-executing, injured workers hire attorneys when there are disputes over the amounts of benefits they should receive.

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red-umbrella-mingling-with-grey-umbrellas-be-different-concept-300x205Making a first party insurance claim is not always the only or even the best option available to a person or corporation whose property has been damaged by wind or rain. (A first party claim is made by a policy holder to his or her own insurance company. These claims are contractual; meaning that they arise out of a contract (the insurance policy) between the insurance company and the policy holder.)

Most first party property damage insurance policies have a deductible. (Deductibles are the amount an insured must pay before the insurance company becomes responsible for making payments under the policy. The deductible amounts can range from $250 to thousands of dollars.)

Making a first party claim may also result in a premium increase. (An insurance premium is the amount of money that an individual or business must pay for an insurance policy.)

Whether the property owner has an alternative to the first party claim depends on the cause of the damage. For example, a manufacturing defect or improper installation may account for a roof leak. In these instances, the better option may be to seek compensation from the responsible third party. The downside to this avenue of recourse is the time, delay, and expense of having to prove fault and damages against a party that is likely to be more hostile than the first party carrier.

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chronic-pain-spots-painful-joints-in-the-body-300x203Wikipedia defines a functional capacity evaluation (FCE) as “a set of tests, practices and observations that are combined to determine the ability of the evaluated person to function in a variety of circumstances, most often employment, in an objective manner. Physicians change diagnoses based on FCEs.”

I, for one, consider FCEs junk science. At the very least, they must be handled with care. Most FCE administrators are not sufficiently grounded in science, case law and forensic issues. Examples may include misquoting standard journal articles and texts, making false statements, providing “junk science” opinions, including predicted functional capacity over prolonged periods projected into the future based on flimsy short-term testing, and interpretation, and deliberately omitting important facts and knowledge. Nevertheless, FCEs are a fairly common component within Florida’s workers’ compensation system.

Chapter 440 is the section of the Florida Statutes containing the workers’ compensation system’s statutory laws. Surprisingly, Chapter 440 contains no reference to FCEs. This means that a judge of compensation claims does not have authority to compel a claimant’s attendance at an FCE. Caution is counseled here: While a claimant cannot be compelled to attend, under some circumstances the refusal to attend may result in the loss of benefits.

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hand-drawing-a-house-on-blackboard-real-estate-and-housing-con-300x209Every property damage insurance policy issued in Florida requires the insured to provide the insurance company (or, in some instances, the procuring policy agent) with timely notice of a loss. The notice requirement enables the insurer to conduct a timely and adequate investigation of all circumstances surrounding an accident. Bankers Insurance Company v. Macias, 475 So.2d 1216 (Fla. 1985). Many a claim has been denied for failing to meet the notice requirement.

Unless the terms of a policy run afoul of statutory or case law, they will govern the relationship between the insured and the insurer. This includes responsibilities with regard to loss reporting.

The reporting requirements can vary from policy to policy. This makes it advisable to read the insurance contract upon purchase and after a loss. The words “immediate” and “prompt” are commonly used to establish the reporting parameters.

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home-insuranceMost homeowner and commercial residential insurance policies obligate policyholders to participate in a potentially expensive and time-consuming adversarial appraisal procedure before litigation. Here’s an example, from Allstate Insurance Company v. Suarez, 833 So. 2d 762 (Fla. 2002), of a typical contractual appraisal provision:

Appraisal. If you and we fail to agree on the amount of loss, either party may make written demand for an appraisal. Upon such demand each party must select a competent and impartial appraiser and notify the other of the appraiser’s identity within 20 days after the demand is received. The appraisers will select a competent and impartial umpire. If the appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge or a court of record in the state where the resident premises is located to select an umpire. The appraisers shall then determine the amount of loss, stating separately the actual cash value and the amount of loss to each item. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of loss. If they cannot agree, they will submit their differences to the umpire. A written award by any two will determine the amount of loss.

Cognizant of this daunting burden, the Florida Legislature enacted statute 627.7015, which provides an alternative procedure for resolving disputed property insurance claims. The essential elements of the statute are:

Senator-Rob-BradleyFrom: Jeff Gale [mailto:jeffgalelaw@bellsouth.net]
Sent: Wednesday, April 19, 2017 9:15 PM
To: ‘bradley.rob@flsenate.gov’
Subject: Senate Bill 1582 (Workers’ Compensation)

Dear Senator Bradley:

I have been representing injured workers since 1990. As Florida’s 1st DCA wisely noted in 1985, in language adopted by the Florida Supreme Court in Castellanos v. Next Door Company, et al., a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” Davis v. Keeto, Inc., 463 So. 2d 368, 371 (Fla. 1st DCA 1985).

I have followed all of the Senate Committee hearings on your bill. I take issue with those who testified that the Castellanos fee was an aberration. It was not. While $1.53/hr. falls at the low end of the spectrum, there is little practical difference between $1.53/hr and $15.00/hr or $20.00/hr for a lawyer trying to keep his or her law office lights on. Between 2003 and Castellanos, I handled hundreds of WC cases. My average hourly rate on those cases ranged from $15 to $20 per hour. Unsustainable. I continued to accept workers’ compensation cases because they are the most gratifying of the various types of cases I handle, but it was personal injury cases that allowed me to stay in business. Many workers’ compensation attorneys dropped out.

My experience with low hourly rates is not unique. As FN 2 in Castellanos indicates, on the date the Supreme Court rendered its decision it had pending before it (on certiorari jurisdiction from the 1st DCA) 18 other cases on the very same issue. I say this as a caution against believing those who downplay the devastating impact of the law challenged in Castellanos.

The reasonable carrier-paid attorney’s fee serves two tremendously important purposes. First, it affords injured workers the opportunity to retain competent counsel. Second, and just as important, it compels carriers to provide needed benefits timely. The problem pre-Castellanos is that carriers faced little consequence for poor and bad faith claims handling.

I greatly appreciate your steadfastness and decency in seeking to fashion a fair and measured workers’ compensation bill in the face of powerful opposition forces. The current version of SB 1582 is that bill. The House bill is not. The hourly rate for carrier-paid fees must be high enough to serve the important goals of affording injured workers adequate legal representation and of prodding carriers into doing the right thing. The House bill, with its $150/hr. cap and onerous hurdles to securing fees – period — eviscerates these goals.

Most respectfully,

Jeff Gale

From: Jeff Gale [mailto:jeffgalelaw@bellsouth.net]
Sent: Thursday, April 20, 2017 12:57 PM
To: ‘bradley.rob@flsenate.gov’
Subject: RE: Senate Bill 1582 (Workers’ Compensation)

Dear Senator Bradley,

The total fee received by the Claimant’s attorney in the Castellanos case was $164.54. This was for 107.2 hours of work determined by the Judge of Compensation Claims (JCC) to be “reasonable and necessary.” Under the law ruled unconstitutional, this means that the value of the benefits secured totaled $822.70. More likely than not, had the current attorney’s fee provisions been in place when Mr. Castellanos was seeking these benefits, the carrier would have provided them without a fight. Instead, the E/C forced Claimant’s attorney to the mat figuring early capitulation or, worst case, having to pay the attorney a measly fee in the event of a loss at the trial level.

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