Workers' Compensation

November 18, 2018

Jeffrey P. Gale, P.A. // Carrier’s Obligation to Pay Medical Expenses Despite Drug/Alcohol Impairment Defense

Under Florida law, if a workplace injury was occasioned primarily by the influence of alcohol or drugs, workers’ compensation benefits can be denied. Section 440.09(3), Florida Statutes (2018) (Interestingly, while this section provides that “Compensation is not payable,” with section 440.02(7) defining “Compensation” as “the money allowance payable to an employee or to his or her dependents,” the law is used to deny all workers’ compensation benefits, including medical benefits.) It is a popular defense.

Typically, some level of medical care is provided before the workers’ compensation insurance carrier becomes aware of the drug and alcohol test results. For example, our firm is handling a roofing accident resulting in paraplegia for which nearly $200,000 in authorized medical care was provided before a positive test result became known.

We believe that the carrier is responsible for the medical expenses. Our position is based on section 440.102(5)(p), Florida Statutes, which provides in pertinent part as follows:

“All authorized remedial treatment, care, and attendance provided by a health care provider to an injured employee before medical and indemnity benefits are denied under this section must be paid for by the carrier or self-insurer.”

November 5, 2018

Jeffrey P. Gale, P.A. // Workers’ Compensation Temporary Partial Disability Benefits Following Relocation

by Jeffrey P. Gale, P.A.

Per section 440.15(4), Florida Statues, Temporary Partial Disability (TPD) benefits are due “if the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work … or an employee returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage.” Does this provision allow an injured worker who has left a job to relocate to a different city or state, to receive TPD? The answer depends on the motivation of the worker for leaving the job.

In Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003), the Claimant left a modified duty job following an industrial accident and relocated to Pensacola because he and his wife were having marital problems and he thought he needed “to be with his family, be back home with [his] mom.” (His wife confirmed this testimony.) While in Pensacola he tried without success, due to his industrial injuries, to maintain a job. Two months later he returned to the job he had left. He also filed a claim for workers’ compensation TPD benefits for the period of time he was in Pensacola.

The workers’ compensation carrier denied the claim for TPD, contending that Claimant voluntarily limited his income. The Judge of Compensation Claims (JCC) agreed, finding that Claimant’s loss of earnings after his employment with the city of Pensacola and before returning to work was “not the result of an injury related disability, but rather the result of his voluntary hiatus from the job he ultimately returned to.” Claimant appealed the JCC’s decision.

November 1, 2018

Jeffrey P. Gale, P.A. // Entitlement to Florida Workers’ Compensation Lost Wages Following Job Termination

by Jeffrey P. Gale, P.A.

It is not uncommon for injured workers to be terminated from their jobs post-accident. There was a time when Florida law required employers to make every effort within reason to reemploy their injured workers. While that admirable public policy was scrapped some 15 years ago, section 440.205, Florida Statutes does prohibit employers from terminating employees hurt on the job for claiming workers’ compensation benefits. However, as a firm that handles wrongful termination cases, we know that proving one from the other can be difficult. Compounding the difficulty is the element of good-cause firings, i.e., justified firings based on conduct, such as excessive absences.

Per section 440.15(4) Florida Statutes (2018), temporary partial disability (TPD) wage loss benefits are due “if the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work … or an employee returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage.” This language has allowed some employees terminated for cause to be entitled to TPD benefits. (Caveat: Not all good-cause terminations are treated alike. Read this blog: Jeffrey P. Gale, P.A. // Florida Workers’ Compensation 440.15(4)(e) Termination for Misconduct Law Not Well Understood.)

One of the leading cases on the subject is Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003). The Claimant injured his back on the job in a compensable accident — meaning, an accident accepted by the Employer/Carrier. He returned to work for the Employer, in a modified-duty status to conform to the authorized doctor’s recommendations, for approximately three weeks after the accident until the Employer terminated him for excessive absenteeism (most of which occurred before the accident). For nine of the next eleven months he looked for work but remained unemployed. He also continued under the care of workers’ compensation doctors, who imposed work restrictions.

October 11, 2018

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation SOL Tolling, Impairment Rating & Guides

by Jeffrey P. Gale, P.A.

Our firm recently settled a hard fought workers’ compensation case arising from a 1995 industrial accident. We received the initial call from the Claimant in March of this year (2018). He explained that he had not received medical care for his injuries, tibia and fibula fractures, since three months post surgery in 1995, but had for the past ten years been experiencing progressively worsening pain for which he now wished to be examined by a doctor. He claimed to be unaware of the Florida workers’ compensation system’s two year statute of limitations (SOL).

We accepted the case and proceeded to undertake discovery on four critical issues, the answers to which would decide whether or not the carrier would be estopped from relying on the statute of limitations defense.

Did the workers’ compensation carrier send the claimant the section 440.185(4), Florida Statutes informational brochure which sets forth an explanation of his rights, benefits, and procedures for obtaining benefits and assistance under the Florida Workers’ Compensation Law?
If not, did the claimant otherwise gain knowledge of these rights, say, for example, from a lawyer or even a friend?
Did the carrier obtain a date of MMI or a permanent impairment rating from the medical provider it authorized and pay the impairment benefits?
If not, was the claimant otherwise aware of his entitlement to impairment benefits?

In 1995, as today, carriers were instructed by section 440.185(4) to inform claimants of their rights under the workers’ compensation law. While a failure to do this could toll the SOL — i.e., keep it from running — it is not an absolute. The workers’ compensation judge (JCC) is charged with determining “whether the claimant lacked actual knowledge of his rights under the workers’ compensation law, and, if so, whether the absence of such knowledge was the cause of the claimant’s failure to obtain the requested care within the limitation period.” Fontanills v. Hillsborough County School Board, 913 So.2d 28, 30 (Fla. 1st DCA 2005).

August 16, 2018

Jeffrey P. Gale, P.A. // Issues Related to Positive Alcohol and Drug Test Results in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Employees testing positive for alcohol or drugs in their system at the time of injury face an uphill battle to recover workers’ compensation benefits. Under subsection 440.09(3), Florida Statutes (2018), compensation is not payable if the injury was occasioned primarily by the intoxication of the employee. If the employer has reason to suspect that the injury was occasioned primarily by the intoxication of the employee or by the use of any drug, urine and/or blood testing is authorized. A positive test result may create the presumption “that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.” Section 440.09(7)(b), Florida Statutes (2018). Unless the employee can overcome the presumption, benefits will be denied. Section 440.09(3).

There are two standards for overcoming the presumption. Which one applies depends on whether or not the employer has instituted a drug-free workplace in accordance with Florida Statute 440.102.

“If the employer has implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury.” Section 440.09(7)(b), Florida Statutes (2018).
“In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury.” Section 440.09(7)(b), Florida Statutes (2018).

Standard number 1 is more difficult for claimants to overcome than number 2. Sometimes, neither applies. In Wright v. DSK Group, 821 So.2d 455 (Fla. 1st DCA 2002), testimony was adduced from witnesses that claimant had ‘”smoked marijuana on the day of his injury.”‘ Relying on this testimony alone, the judge of compensation claims (JCC) applied the presumption and required the claimant to meet standard number 2. The JCC was reversed on appeal, with the court holding that the presumption did not apply and the employer failed to meet its burden that the work-related injury ‘”was occasioned primarily by the … influence of any drugs … not prescribed by a physician.”‘ Section 440.09(3), Fla. Stat. (1999). See generally Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000) (affirming a ruling that the presumption authorized by section 440.09(7)(b) does not arise when confirmation testing did not conform with applicable rules and that, as a result, the employer was required to establish that the injury was caused primarily by the influence of drugs), review denied, 786 So.2d 1189 (Fla.2001). “When the presumption in section 440.09(7)(b) does not apply, employer/carriers must `establish, by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.'” See Thomas v. Bircheat, 16 So. 3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group, 821 So. 2d 455, 456 (Fla. 1st DCA 2002); see also Sterling v. Mike Brown, Inc., 580 So. 2d 832, 835 (Fla. 1st DCA 1991) (affirming JCC’s order finding employee’s injury was primarily caused by his intoxication even without presumption).

August 3, 2018

Jeffrey P. Gale, P.A. // Clarifying Meaning of “Authorized Treating Provider” Under Florida Statute 440.13(5)(e)

by Jeffrey P. Gale, P.A.

Florida statute section 440.13(5)(e) limits who may give medical opinions in workers’ compensation trials to “a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider.”

Our office recently accepted a 23 year old workers’ compensation case where the employee has not received any workers’ compensation benefits for 22 years. The workers’ compensation insurance carrier has raised two defenses to the claim: (1) Statute of Limitations and (2) causal relationship between the current complaints (back and leg pain) and the injury suffered in 1995 (a tibial fracture requiring medullary rodding) — see, 440.02(36).

To carry our burden of establishing the necessary causal connection (to defeat defense #2), medical testimony must be presented. The original surgeon, who was then authorized by the workers’ compensation carrier, is still practicing medicine in Miami-Dade County. Our plan is to have him evaluate the claimant to give his opinion on the issue.

The employer/carrier (E/C) claims that the doctor is no longer “an authorized treating provider,” precluding him from being qualified to give the key opinion testimony. We believe that E/C is wrong.

August 1, 2018

Jeffrey P. Gale, P.A. // ADA vis-a-vis Workers’ Compensation Martin v. Carpenter Defense

by Jeffrey P. Gale, P.A.

In 1961, the Florida Supreme Court denied benefits to a workers’ compensation claimant who claimed to hurt her back on the job, for misrepresenting a past medical condition in a job application. See, Martin v. Carpenter, 132 So.2d 400 (Fla. 1961).

For a number of years prior to completing her job application, the claimant had experienced pains in her back. She had on several occasions during those years sought medical treatment for her back condition. When claimant sought employment by the employer she was required to complete a document named “Physical Examination Record” as a condition precedent to employment. The first question on the form asked if the applicant had ever been subject to various diseases and infirmities including “Back injury or Backache.” To this question claimant answered “No.”

The employer/carrier advanced two defenses to the claim for benefits, the second contention being that claimant, because of falsification of the pre-employment questionnaire as to her physical condition, is not entitled to compensation.

July 4, 2018

Jeffrey P. Gale, P.A. // Neglecting Duty Prevents Application of Florida Workers’ Compensation Statute of Limitations

by Jeffrey P. Gale, P.A.

Every type of legal matter has a time bar to when legal proceedings can be maintained to address a dispute. The time bar is known as the statute of limitations. The Florida workers’ compensation statute of limitations is contained in section 440.19, Florida Statutes.

Especially in the area of workers’ compensation, the courts have formulated ways of overcoming the SOL defense. One avenue is by demonstrating — it is the claimant’s burden — that the employer/carrier (E/C) have neglected or shirked their responsibilities and obligations to notify claimant[s] of possible benefits under the Workers’ Compensation Act. Gauthier v. Florida International University, 38 So.3d 221 (Fla. 1st DCA 2010). The result of making the proper proof is that the E/C will be estopped from relying on a statute of limitations defense.

In Gauthier, the claimant sustained a serious eye injury. Despite its knowledge of claimant’s severe ocular injury, E/C never pursued a date of maximum medical improvement (MMI) — section 440.02(10), Florida Statutes — or a permanent impairment rating (PIR) — 440.02(22) — thus avoiding the payment of permanent impairment benefits — 440.15(3) — which, if paid, would have tolled the statute of limitations.

June 27, 2018

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Responsibility Without Compensability

by Jeffrey P. Gale, P.A.

For the most part, workers’ compensation insurance companies limit their payment of medical expenses to conditions caused by work-related accidents. In some instances, however, carriers may be required to cover expenses for unrelated conditions. The primary instances are when (1) diagnostic testing is required to determine the compensability of an injury, (2) an unrelated condition presents a hindrance to the recovery of a compensable medical condition, and (3) controlling an unrelated condition, like high blood pressure, is necessary to allow the claimant to undergo a related procedure, like surgery.

Both principles are grounded on section 440.13(1)(k), Florida Statutes, which provides:

“Medically necessary” or “medical necessity” means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature.

Treatment to determine whether an injury is compensable

Laxner v. Target Corporation, 41 So.3d 396 (Fla. 1st DCA 2010). To establish entitlement to medical treatment, care, and modalities that have an investigatory or diagnostic purpose, workers’ compensation law does not require claimant to prove the major contributing cause of the need for treatment or diagnostic testing is her workplace accident or injury; rather, the award of such medical care is dependent on a finding that the evaluation is reasonably required to determine the cause and extent of claimant’s injuries.

May 28, 2018

Jeffrey P. Gale, P.A. // “On-call” Attendant Care in Florida’s worker’s compensation system

by Jeffrey P. Gale, P.A.

The current definition of “attendant care,” which is not significantly different than in past versions of the statute, is as follows:

Florida Statute 440.13(1)(b). “Attendant care” means care rendered by trained professional attendants which is beyond the scope of household duties. Family members may provide nonprofessional attendant care, but may not be compensated under this chapter for care that falls within the scope of household duties and other services normally and gratuitously provided by family members.

At the outset, it should be noted that the Claimant has the burden of proving the quantity, quality, and duration of the attendant care. See Adams Bldg. Materials, Inc., v. Brooks, 892 So.2d 527, 530 (Fla. 1st DCA 2004) (citing Orange Cnty. Sheriff’s Dep’t v. Perez, 541 So.2d 652, 654 (Fla. 1st DCA 1989) (holding claimant has burden to prove “the quantity, quality and duration of attendant services claimed”)).