doctorThe resolution of disputes in Florida workers’ compensation cases often boils down to medical opinions. On this matter, the deck is stacked against injured workers (a/k/a “claimants”).

Section 440.13(2)(a), Florida Statutes lays out the obligations of employers and their insurance carriers, commonly referred to as “E/C,” to furnish medical care to injured workers. Unless an E/C fails to furnish care timely, it controls who is authorized to provide care at every stage of the case. 440.13(2)(a),(c)&(f). In other words, E/C get to pick claimants’ medical providers.

We typically see the same handful of medical providers selected by E/C in every case. The obvious reason why is because the providers make a steady and reliable income from workers’ compensation cases and know better than to bite the hand that feeds them. Especially when a call can go either way, they are skilled at expressing opinions favorable to E/C. They’re also adept at managing care so they make money, for example, with ongoing visits and physical therapy, while depriving claimants of the opportunity to recover lost wage payments. In this regard, “No functional limitations” is a favorite conclusion. See Section 21 of DWC-25. (This form is supposed to be completed by authorized doctors after every appointment.)

Making matters worse is that judges of workers’ compensation claims (“JCC) are not allowed to consider the opinions of any medical providers other than those authorized by E/C, typically the hand-selected usual suspects, each party’s IME, and an EMA doctor. Section 440.13(5)(e) provides as follows:

No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

An IME doctor is not a treater. He or she gets to examine the claimant one time and review medical records. See 440.13(1)(h)&(i) and (5). The EMA doctor is appointed by the Judge of Compensation Claims (JCC) to resolve differences of opinion among authorized and IME doctors. Section 440.13(9), Florida Statutes.

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crushed-vehicleIn 1958, Florida joined a handful of other states in adopting the evidentiary rule that a presumption of negligence arises against the trailing vehicle in motor vehicle crashes. See McNulty v. Cusack, 104 So.2d 785 (Fla. 2d DCA 1958) (Other jurisdictions limited the rear-end aspect of the collision to creating an inference of negligence.). Shortly thereafter, the rule was approved by the Florida Supreme Court in Bellere v. Madsen, 114 So.2d 619 (Fla. 1959). The usefulness of the rule was explained in Jefferies v. Amery Leasing, 698 So.2d 368 (Fla. 5th DCA 1997):

A plaintiff ordinarily bears the burden of proof of all four elements of negligence—duty of care, breach of that duty, causation and damages. See Turlington v. Tampa Elec. Co., 62 Fla. 398, 56 So. 696 (1911); Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 49 So. 556 (1909). Yet, obtaining proof of two of those elements, breach and causation, is difficult when a plaintiff driver who has been rear-ended knows that the defendant driver rear-ended him but usually does not know why. Beginning with McNulty, therefore, the law presumed that the driver of the rear vehicle was negligent unless that driver provided a substantial and reasonable explanation as to why he was not negligent, in which case the presumption would vanish and the case could go to the jury on its merits. Gulle v. Boggs, 174 So.2d 26, 28-29 (Fla.1965)Brethauer v. Brassell, 347 So.2d 656, 657 (Fla. 4th DCA 1977). At the time when this rear-end collision rule was developed, Florida was still a contributory negligence state. Thus, if the presumption were not overcome, the following driver’s claim would be barred. Under contributory negligence, a negligent plaintiff could not recover against a negligent defendant. See Shayne v. Saunders, 129 Fla. 355, 362, 176 So. 495, 498 (1937). Stephens v. Dichtenmueller, 207 So.2d 718 (Fla. 4th DCA), quashed on other grounds, 216 So.2d 448 (Fla.1968).

As the court explained in Birge v. Charron, 107 So.3d 350, 361 (Fla. 2012), “the rear-end presumption has never been recognized as anything more than an evidentiary tool that facilitates a particular type of negligence case by filling an evidentiary void where the evidence is such that there is no relevant jury question on the issue of liability and causation.”

Litigants seek probative evidence to prove their cases through procedural discovery methods. In personal injury cases, incident reports describing the circumstances of the accident typically contain valuable information.

Defendants usually oppose turning over incident reports to plaintiffs. The argument is that the incident report was prepared in anticipation of litigation and, therefore, is protected by the work-product privilege. See Marshalls of M.A., Inc. v. Witter, 186 So. 3d 570, 573 (Fla. 3d DCA 2016) (“Incident reports, internal investigative reports, and information gathered by employees to be used to defend against potential litigation are generally protected by the work-product privilege.”).

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caduceus-1219484-m-212x300The Oxford Dictionary defines peer review as “a judgment on a piece of scientific or other professional work by others working in the same area.” It is a commonly used procedure with a variety of scientific and medical matters.

Florida’s workers’ compensation statutes are located in Chapter 440. Peer review is referenced at section 440.13(1)(o) as follows:

“Peer review” means an evaluation by two or more physicians licensed under the same authority and with the same or similar specialty as the physician under review, of the appropriateness, quality, and cost of health care and health services provided to a patient, based on medically accepted standards.

There is little other jurisprudential instruction to explain the pertinence of peer review in workers’ compensation cases.

Last week I received a “Peer Review” report from a doctor hired by the workers’ compensation insurance company in one of our cases. In the doctor’s opinion, a shoulder surgery recommended by our client’s authorized doctor “does not meet established treatment standards of medical necessity.” The peer review report was generated in response to a Petition for Benefits we had filed seeking authorization of the surgery. A few days later the workers’ compensation carrier filed a formal response to the Petition for Benefits in which it agreed to authorize the surgery. This is not the first time I’ve experienced a similar about-face involving peer review.

I don’t know why the carrier went to the trouble and expense of this so-called peer review. First, the statute requires the review to be done by “two or more physicians.” This review was done by one physician. Next, while 440.13(r) and (s) express an interest in “Utilization control” and “Utilization review,” neither the statute nor case law instruct how or even whether peer review functions to address utilization concerns or disputed medical benefits.

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scales-of-justice-300x203The 7th Amendment to the United States Constitution, ratified in 1791, codifies the importance of jury trials in civil cases to the framework in the American Way. Here is the amendment’s simple language:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Jury trials allow everyday citizens, guided by the law and the facts, to pass judgment on civil matters between contesting parties. The concept is that the collective wisdom of juries consisting of our peers, devoid of bias and preference, will render just decisions. The system, which, in my view, is the greatest system devised by any society for handling such matters, has worked remarkably well.

law-booksDuring every initial workers’ compensation client interview, I spend time explaining that Florida’s workers’ compensation system does not pay benefits for non-economic damages such as pain and suffering. Most people don’t know this. I reiterate the point during various stages of the case, especially as we approach settlement discussions. Nothing prevents fair and reasonable settlements more than expectations based on misapprehensions of the law.

The statutory authority for this limit on non-economic damages in workers’ compensation cases is found in Florida Statute 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

The “at law” provision encompasses non-economic damages, and the limitation is commonly referred to as “workers’ compensation immunity.” Injured workers bound by this provision are limited to receiving medical and indemnity benefits through the workers’ compensation system contained in Chapter 440 of Florida’s statutes.

“[A]t law” non-economic damages are available in personal injury cases. A key element of every personal injury case is that the harm resulted from, at a minimum, another person’s or entity’s negligence. 440.11 bars personal injury claims against co-workers and employers for mere negligence. This is “workers’ compensation immunity.”

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dollarsThe competition to advance money to those injured in accidents is fierce. The reason for the fierce competition is the potentially high rate of return on the investment.

Numerous companies, some large with a national presence, engage in the competition. Because their only security is the injury case itself (workers’ compensation and personal injury), which gives rise to the term “non-recourse funding advance“, the companies are not bound by Florida’s usury laws limiting interest rate charges. The rate can be multiple times over the 18% limit allowed in Florida. In fact, the interest rates are so high that the repayment amount can quickly double and triple the principal.

Advance companies are barred from foreclosing on real property or seeking repayment through wage garnishment. Their sole recourse for repayment is the case itself. If the case fails altogether or the recovery is not enough to repay the advance in full, it’s tough luck for the company. Given the precarious nature of accident cases, this is a real risk. Cases can “Go South,” so to speak, for a variety of reasons.

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worker2Florida’s workers’ compensation system, located in Chapter 440 of the Florida Statutes, follows its own unique set of rules and procedures. One of the more unusual and challenging is the limitation set forth in section 440.13(5)(e) regarding who may provide expert medical opinions:

No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

Following an industrial accident, “the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….” Section 440.13(2)(a), Fla. Stat. (2022).

For a variety of reasons, employers sometimes fail or refuse to meet this responsibility. When they do, 440.13(2)(c) allows employees to “obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter.” This medical care is commonly referred to as “self-help.”

Medical testimony is required to resolve most workers’ compensation disputes. Who may testify is controlled by section 440.13(5)(e), Florida Statues. In Hidden v Day & Zimmerman, 202 So.3d 441 (Fla. 1st DCA 2016), the Court said that “the employee could designate the self-help doctor as his or her IME, thereby making the doctor’s opinion admissible under section 440.13(5)(e)….” Id. at 443.

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doctorFlorida employers and their workers’ compensation insurance carriers, often referred to in combination as the “E/C,” are obligated under Florida Statute 440.13(2)(a) to “furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….” Many a battle is fought over medical necessity.

It is common in workers’ compensation cases for authorized medical providers to make referrals for various types of medical care. Under 440.13, once E/C has received the referral request, it has a prescribed period of time to respond or the requested care will be deemed medically necessary. The request must be made in writing to the carrier, while the carrier’s response may be by telephone or in writing. Sec. 440.13(3)(d).

How long E/C has to respond depends on the nature and expense of the requested service. 440.13(3)(d) limits the response time to three (3) days, while 440.13(3)(i) allows ten (10) days. 440.13(3)(i) provides in pertinent part as follows:

Notwithstanding paragraph (d), a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services that the department identifies by rule is not valid and reimbursable unless the services have been expressly authorized by the carrier….

In practice, this exception applies to most referrals. For example, in the typical workers’ compensation case, the carrier will authorize a clinic to provide the initial evaluation and treat to the extent of its expertise. Almost invariably, the clinic will prescribe onsite physical therapy. This prescription falls under (3)(i). When the employee’s complaints persist, the clinic doctor will prescribe an MRI. This, too, falls under (3)(i). And if the MRI shows a medical condition outside the expertise of the clinic doctor, a referral will be made to a specialist, another (3)(i) situation.

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L1001863-300x200Florida’s workers’ compensation system has its own unique set of laws. One of these concerns the burden claimants bear in establishing the compensability of injuries. Per section 440.09(1), Florida Statutes, the injury “must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries.”

The statute defines objective relevant medical findings as “those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.” The instructions accompanying form DWC-25, which is typically completed by workers’ compensation doctors after each appointment, say this about objective relevant medical findings:

Objective Relevant Medical Findings: Pursuant to Section 440.09(1), F.S., pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. Further, pursuant to Section 440.13(16)(a), F.S., abnormal anatomical findings alone, in the absence of objective relevant medical findings, shall not be an indicator of an injury or illness, a justification for the provision of remedial medical care, the assignment of restrictions, or a foundation for limitations. Objective relevant medical findings are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by the physical examination findings or diagnostic testing.

Compensability is but one of many issues in Florida workers’ compensation cases. Even after compensability is resolved, disputes may arise over other issues such as the transfer of medical care and the payment of indemnity (money) benefits.  Interestingly, even though medical evidence is needed to resolve almost every workers’ compensation dispute, compensability is the only one in which “objective relevant medical findings” is a mandatory element.

This point has been and remains an area of confusion for lawyers, adjusters, and workers’ compensation judges.

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