Articles Posted in Workers’ Compensation

The following editorial was published on January 16, 2018, in the Tampa Bay Times newspaper. It is fair and balanced.

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Editorial: Balancing the playing field for workers’ compensation

For the longest time, injured workers in Florida were basically at the mercy of the whims of employers to treat them fairly. A 2003 law aimed at reducing the cost of workers’ compensation coverage for businesses had the desired impact, but it also discouraged attorneys from getting involved in workers’ comp cases and resulted in a drop in the number of claims. Then the Florida Supreme Court ruled in two 2016 cases on behalf of workers’ rights, causing the pendulum to swing back in the direction of employees and resulting in significant rate increases for employers. The Florida Legislature is again proposing reforms, but it needs a more prudent and equitable approach.

Clearly, this is an area that needs to be monitored closely. Between spurious claims and the potential for excessive attorney fees, a poorly run workers’ compensation system could have an adverse impact on the state’s economy. For example, after the state Supreme Court rulings, the premiums for businesses seeking workers’ compensation insurance jumped 14.5 percent in 2016-17.

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Section 440.15(4)(e) of the Florida Statutes provides as follows: “If the employee is terminated from postinjury employment based on the employee’s misconduct, temporary partial disability benefits are not payable as provided for in this section.”

Simple enough, right? Not necessarily.

For starters, 440.15(4)(e) is qualified by section 440.02(18), which provides in pertinent part as follows:

‘“Misconduct”’ includes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

This heightens the standard for authorizing the denial of temporary partial disability benefits (TPD) above innocent acts of misconduct. If Mr. Jones is fired for showing up late to work one day because of a flat tire, it is unlikely that TPD benefits will be denied on the basis of 440.15(4)(e). Now, if Mr. Jones makes a habit of showing up late on a regular basis without a darn good excuse — and even then — the story may likely have a different ending.

In the Mr. Jones example, the distinction is between termination for cause and termination for misconduct. See Thorkelson v. NY Pizza & Pasta Inc., 956 So. 2d 542 (Fla. 1st DCA 2007) (“Clearly a claimant is not disqualified from workers’ compensation benefits just because she ‘”was terminated . . . for cause.”‘)

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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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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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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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Department-Brochure-WC-1-242x300Florida’s workers’ compensation statute of limitations is outlined in section 440.19, Florida Statues (2017). The statute is particular with regard to the requirements workers’ compensation insurance carriers must satisfy to prevail on the SOL defense. This blog points out an approach not addressed in the statute which is used by carriers to bar claims through the SOL defense.

Section 440.19 appears to condition its application on compliance with section 440.185, Florida Statutes. Section 440.185 subsection (3) provides as follows:

Within 3 days after the employer or the employee informs the carrier of an injury the carrier shall mail to the injured worker an informational brochure (italics added) approved by the department which sets forth in clear and understandable language an explanation of the rights, benefits, procedures for obtaining benefits and assistance, criminal penalties, and obligations of injured workers and their employers under the Florida Workers’ Compensation Law.

One could conclude from reading sections 440.19 and 440.185, that a carrier’s failure to mail the informational brochure would absolutely prevent the SOL defense. Such is not the case. (Here is a link to the approved brochure: Florida Department of Insurance. Page one addresses the workers’ compensation statute of limitations.)

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scales-of-justice-300x203There is great strength in numbers. You realize that as an advocate for injured workers and a strong defender of civil justice in our state. This is the primary reason why the Florida Workers’ Advocates and the Florida Justice Association have joined forces to stand up for working people at the State Capitol and throughout Florida in a unified manner.

Whether the focus is on the manner in which rates are established or the denial of medical treatment and related benefits for injured workers, the overwhelming theme is that the workers’ compensation system has been skewed in favor of big business and the insurance industry for far too long. We have all represented individuals who have been harmed by this fractured system.

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Notes-300x215The parties to a Florida workers’ compensation case have the unique right to conduct discovery depositions even in the absence of a pending claim, which is brought by filing a Petition for Benefits.

The right is granted under Florida Statute 440.30 and is limited to cases where the Claimant is represented by an attorney. (This means that the Employer and Carrier, known collectively as “E/C”, cannot employ the device against an unrepresented Claimant.) Significantly, “[I]f no claim has been filed, then the carrier or employer taking the deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending said deposition.”

Because both parties may conference separately with authorized medical providers — Section 440.13(4)(c) Florida Statutes grants E/C the right — it is rare for a medical provider to be deposed in the absence of a pending Petition for Benefits. From E/C’s perspective, it can learn what it needs by talking to the doctor privately without having to pay the Claimant’s attorney to attend a deposition.

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scales of justiceFollowing the Florida Supreme Court’s April, 2016 decision in Castellanos v. Next Door Company, Florida’s workers’ compensation insurance industry quickly mobilized in an effort to obtain approval of a rate increase from the Florida Office of Insurance Regulation. It claimed that a substantial premium rate hike was needed to handle the expected increase in claim costs — in particular, fees paid to claimants’ attorneys — resulting from the decision.

Insurance industry representatives hired National Council on Compensation Insurance (NCCI), a private company authorized to request rate changes, to present its case to the Florida Office of Insurance Regulation (OIR), the regulatory agency responsible for setting insurance rates. OIR ultimately approved a 14.5% rate hike. Problem is, opponents were prevented from fully engaging  in the regulatory process.

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