Monday, May 2, 2016

Florida Supreme Court Workers' Comp Fee Ruling Signals Unease With Law

Noreen Marcus, Daily Business Review
May 2, 2016

The Florida Supreme Court ruled for workers in an opinion that ensures they can hire lawyers when they battle their employers over injury benefits. In a 5-2 ruling Thursday, the court decided a statute that standardizes fees for claimant lawyers in workers' compensation cases fails the due process test. The majority opinion in Castellanos v. Next Door rejects an hourly fee of $1.53. Writing for the majority, Justice Barbara Pariente took aim at how the law bars judges from even addressing whether some fees are unacceptably low. It decrees that all fees based on the formula are fair.

"The statute prevents every injured worker from challenging the reasonableness of the fee award in his or her individual case — an issue of serious constitutional concern given the critical importance, as a key feature of the workers' compensation statutory scheme, of a reasonable attorney's fee for the successful claimant," she wrote.

Business interests were apoplectic.

"Without immediate legislative action, this decision will result in a devastating rise in workers' compensation insurance rates that will adversely affect our economy, job growth and small businesses," Bill Herrle, executive director of the National Federation of Independent Business/Florida, said in a statement.

Joel Perwin found the decision significant for an entirely different reason. "It gets rid of a statutory prohibition that was draconian and ridiculous," said the veteran Miami appellate lawyer, who is not involved in the Castellanos case.

"Now at least the playing field has been leveled. Balance and fairness have been restored," said Tampa lawyer Michael Winer, co-counsel for Castellanos.

"It's a great day for the plaintiffs bar, but more importantly it's a great day for injured workers," he said. "Now they have the ability to have their rights vindicated."

The interests that Herrle represents dodged a much more dangerous bullet. The court released a two-paragraph unanimous decision Thursday that discharged jurisdiction in Stahl v. Hialeah Hospital.

That case disparaged the entire 75-year-old workers' comp system on the basis that legislative tinkering has left it nearly ineffectual for employees. The First District Court of Appeal upheld the law's constitutionality, providing high court entree for workers' comp lawyer Mark Zientz.

The outcome announced Thursday in the hospital case was signaled during Supreme Court arguments April 6. Several justices wondered how the sparse record in the Stahl litigation could support a sweeping constitutional ruling.

And Justice Fred Lewis referred to the question of the court's jurisdiction to hear the case as "the elephant in the room." Now the elephant has trumpeted defeat for Stahl.

Still, the Castellanos opinion suggests the majority processed Zientz's message. Footnote 3 lists "just a few of the ways in which the workers' compensation system has become increasingly complex and difficult, if not impossible, for an injured worker to successfully navigate without the assistance of an attorney."

The footnote describes seven legislative changes to Florida Statutes Chapter 440 including the addition of "an extensive fraud and penalty provision" and "the elimination of the provision that the workers' compensation law be liberally construed in favor of the injured worker."

Both Winer and Perwin pointed to Footnote 3 as indicating a majority of justices agree with Zientz that workers have given away too many rights in exchange for too few benefits.

"The court is acutely aware of the fact that the Legislature has been cutting away at benefits for quite some time now," Winer said.

Perwin added, "I see Footnote 3 as at least recognition that it may not be just this provision that is undermining the original purpose and benefits of the workers' comp law."

Read full article, click here.

Thursday, April 28, 2016

Court calls $1.53 an hour lawyer fee unconstitutional, 'absurd' - Comments from Michael Winer

In its ruling, the court said the fee limits are unconstitutional because they resulted in a system where people can't find lawyers to represent them at unreasonably low rates. The law based lawyer fees on a percentage of the amount of money won in a claim, so if an injured worker had a $5,000 claim, lawyers knew that they could receive no more than $1,000.

So while the $5,000 could be important to someone earning $10 an hour and trying to pay bills, lawyers don't want to take cases where their fee is driving down to the equivalent of $10 an hour or less, said Michael Winer, who chairs the Workers Compensation Section of The Florida Bar.

"People who were injured on the job and stuck in the workers' comp system lost the ability to pay lawyers," he said. "I have had very difficult discussions with a lot of injured workers who had valid claims, and said, `Look, the juice here, unfortunately, just isn't worth the squeeze. I might have to spend 50 to 70 hours on your case."'

It also led to insurance companies denying legitimate claims knowing that injured workers wouldn't be able to fight the decision, Winer said.

The Florida Supreme Court struck down a law limiting lawyer fees in workers' compensation cases on Thursday, saying the $1.53 hourly rate a lawyer was paid to help an injured worker was "absurdly low."

The 5-2 decision is expected to help injured workers who have struggled to get lawyers to help them because the fee system created by then-Gov. Jeb Bush in 2003 makes their cases not worth representing. The case involved a man who successfully sued a Miami door manufacturer over an on-the-job injury. His lawyer was paid $164.54 for more than 100 hours of work.

But the ruling is a blow to business groups that have long argued legal fees drive up the costs of workers-compensation insurance. The fee issue will bounce back to the Legislature, where it could spark a fierce debate.

"They deny the claim, and if the claimant can't get a lawyer, he goes away and he makes it somebody else's problem. That problem might be Medicaid's problem, that problem might be a county hospital that never gets reimbursed," Winer said. "It's the grand passing of the buck."

Justice Barbara Pariente, writing for the court's majority, said the 2009 law is a violation of due-process rights under the Florida Constitution and the U.S. Constitution because it prevents challenges to the "reasonableness" of attorney's fees awarded in workers-compensation cases. "This case, and many others like it, demonstrate that despite the stated goal, oftentimes the worker experiences delay and resistance either by the employer or the [insurance] carrier,'' wrote Pariente. "Without the likelihood of an adequate attorney's fee award, there is little disincentive for a carrier to deny benefits or to raise multiple defenses, as was done here." Read the full article, click here.

Friday, April 22, 2016

Court rejects legal restriction in workers' comp cases

Today was one of proudest moments as a lawyer. After years of fighting to overturn one of the most unfair laws on the books, we finally succeeded.

Today, in Martha Miles v. City of Edgewater, the 1st District Court of Appeal declared that section 440.34 is unconstitutional. This monumental decision paves the way for so many Floridians who are injured on the job, like Mrs. Miles, an injured police officer, to be able to secure legal representation to assist them in their Worker's Compensation claims.

The court held that, "We conclude that the statutory restrictions are unconstitutional, and that the proper remedy is to allow an injured worker and an attorney to enter into a fee agreement approved by the JCC, notwithstanding the statutory restrictions." A great day for fairness and justice. Thanks to our team: Geoff Bichler, Paolo Longo, the Fraternal Order of Police, Florida Workers Advocates, and so many others.

Read Artcle:

Tuesday, October 6, 2015

Workers' Compenstion Case Law Summaries- 6/15-9/15

By Michael J. Winer, Esq.

The workers’ compensation community continues to await the Florida Supreme Court’s decision in Castellanos1 (and related attorney fee challenge cases) and in Westphal (infra). In the interim, a minor setback of sorts was suffered when the Third DCA reversed an order of a circuit judge in Miami which found the exclusive remedy provision in Fla. Stat. section 440.11 to be unconstitutional. In State of Florida v. Florida Workers' Advocates et al,. (Fla. 3d DCA 6/24/2015), the court reversed the judge, not on the constitutional merits itself, but instead on the procedural issues of mootness and standing. The Court wrote, "[t]he initial claims and parties in this case at its inception in 2011 were transformed by the present appellants and their counsel into a completely different set of claims and parties over the three years which followed. In the process, the case lost (1) the essential elements of a justiciable "case or controversy," (2) an identifiable and properly-joined defendant, and (3) a procedurally proper vehicle for the trial court's assessment of the constitutionality of section 440.11."

The DCA laid out the convoluted three year history leading up to the judge's ruling, discussing qualifying concepts of Florida Constitutional Law which might allow parties to address the constitutionality of a statute. They noted that the lack of the threshold issues of ripeness and mootness precluded them from addressing the underlying alleged constitutional arguments of FWA, WILG and Padgett, and the impermissible "piggy backing" of new plaintiffs onto a predecessor case could not create standing where the first plaintiff dismissed his claim. The court concluded that the trial court lacked a justiciable case or controversy within which to determine, and the intervenor/appellees lacked standing to assert, that the challenged provisions of the Florida Workers' Compensation Law are unconstitutional. The case is pending discretionary review with the Florida Supreme Court and the hope is that the court will consider this case along with the remainder of the constitutional issues in the above cases.

In School Board of Lee County/Johns Eastern Co. v. Huben, (Fla. 1st DCA 6/22/2015), the court addressed the issue of the right to temporary indemnity following MMI from a physical injury. Section 440.093(3) provides that, "[s]ubject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee's physical injury or injuries." The DCA found that the JCC erred in awarding psychiatric benefits in excess of the 6 month limitation period in F.S. s. 440.093(3). The JCC awarded the claimant TTD benefits for her psychiatric injury subject to 440.093(3), but found that the six months was a cumulative period, rather than a calendar period from the date of physical MMI. The DCA rejected this interpretation, indicating that, "we read section 440.093(3) to set a strict deadline after which no TTD benefits are payable on psychiatric injuries." The court said that if the legislature intended anything other than a strict calendar calculation, they would have indicated that, or they may address it in future legislative sessions.

The facts of this case revealed that the Claimant's compensable physical injury to her arm reached maximum medical improvement on January 9, 2014. It was not until July 3, 2014, that Claimant obtained an admissible medical opinion that the compensable injury was the major contributing cause of her PTSD that the PTSD renders her temporarily totally disabled. Therefore, since the Claimant reached physical MMI 5 months and three weeks earlier, the claimant gets a whopping 6 days of TTD based on the court’s interpretation. This decision exemplifies a poor interpretation of the statute by the 1st DCA that leads to absurd results. First, when confronted with previous calculations of time as to whether the 104 week period of temporary benefits is cumulative, the DCA held it was. See Auman v. Leverock's Seafood House, 997 So. 2d 476, 478 (Fla 1st DCA 2008) (reaffirming that 104-week cap on temporary disability benefits, found in section 440.15, Florida Statutes, creates "bank" from which benefits are drawn and calculated cumulatively). The court distinguished Auman because, in their words, it appeared significant that the statute used the "word ‘months’ in contradistinction to the use of the word ‘weeks’ in other statutes." So by the court’s rationale, if the legislature would have written section 440.093(3) to provide that, ".... in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 26 weeks after the date physical MMI," then the result should be different and the Claimant should have a cumulative "bank of 26 weeks from which to draw. Is that an interpretation that makes sense? No, it does not. Months and weeks are simply units to measure time. The word "months" does not necessarily refer to a cumulative period of time just as the word "weeks" does not necessarily connote a cumulative bank of time; yet, this is exactly how the court interpreted those words.

The court’s interpretation makes even less sense when one considers that section 440.015 specifically states that the "Legislative intent" of the law is "to assure the quick and efficient delivery of disability and medical benefits to an injured worker." In fact, in Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management, 122 So. 3d 440 (Fla. 1st DCA 2013) (en banc) (the aforementioned decision currently under review in the supreme court), the court said that, "[t]he conclusion that disability benefits are available throughout the course of a worker's disability is not only supported by the text of the applicable statutes, it is also consistent with the intent of the Legislature as expressed in the Workers' Compensation Law. Section 440.015, Florida Statutes (2009)." The Court went on to state that this statement of legislative intent means that "the Legislature meant to require the continuous payment of disability benefits for an injured worker who continues to be disabled and that the 104-week limit on temporary disability benefits does not effectively terminate the injured worker's right to just compensation." Anyone reading these cases could likely conclude that this strong language in Westphal as to legislative intent and how the workers’ compensation law should be interpreted (to require "continuous payment of disability benefits for an injured worker who continues to be disabled") would at least be persuasive on the decision in Huben, such as to at least require comment by the panel. No such luck.

Wesphal is a curious case in which the court basically reversed its own prior precedent, receding from its previous en banc opinion in Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011). The decision drew vitriolic dissenting opinions. In spite of that, the en banc decision remains good law until the Supreme Court rules otherwise. Two of the three judge who dissented in Wesphal (Judges Roberts and Wetherell)2 were the panel judges in Huben. The panel in Huben refused to apply the guidance of Wesphal (that "disability benefits are available throughout the course of a worker's disability") to the facts of the case. It all makes for interesting theater for the outside observer, but it is a disaster for the injured worker who is totally disabled as a result of a compensable work related injury and receives nothing beyond 6 days of benefits under the Huben decision. The message is that you can be totally disabled due to a work injury yet receive nothing in terms of disability benefits. Without any income, these workers become wards of the state and society as a whole must care for them instead of the industry who created the harm to begin with. This interpretation by the court leads to an outcome that runs completely foul of the very purpose and intent of the workers’ compensation system. See Port Everglades Terminal Co. v. Canty, 120 So. 2d 596, 602 (Fla. 1960)("... the workmen's compensation law was intended to provide a direct, informal and inexpensive method of relieving society of the burden of caring for injured workmen and to place the responsibility on the industry served.")

In Gonzalez v. Quinco Electrical, Inc./Zenith Ins. Co., (Fla. 1st DCA 7/15/2015), the court considered a request for a change of doctors. To understand this case requires an understanding that in Worker's Compensation, the employer carrier picks the doctors who will treat the claimant. You need not have a degree in rocket science to understand that insurance carriers, with obligations to their shareholders, pick doctors who are conservative, with a documented track record for always saying that conditions are not related to the accident or that no treatment is required. The only scenario in which the claimant gets to pick his own doctor is when he asks for a change of doctors, and the carrier does not respond within five days.

For injured worker who is stuck in the Worker's Compensation system with little if any input as to medical decisions and who provides treatment, it is no wonder why so much litigation has developed over the issue of the change doctors. Simply put, when the claimant gets to pick his own doctor, it can be a game changer for him. Because of this, many claimant attorneys are tempted to toe the line of ethical behavior in the manner in which they ask for a change doctors.

Such was the case here.... the claimant attorney filed a PFB, and then three weeks later, filed a Notice of Appearance. On the second page of that Notice, the claimant attorney inserted a request for a one time change. He admitted to the JCC this was done to "take advantage of" his belief that adjusters do not always fully read every document they receive. The E/C authorized their choice of a one time change doctor on the sixth day, which the claimant attorney alleged resulted in a waiver of their ability to select the physician. The JCC found under the circumstances the E/C timely responded to the claimant's request for a one time change. The DCA affirmed the JCC's ruling, finding it within his discretion to consider whether an E/C's failure to respond within five days was because of the form or context of the request. The DCA pulled no punches in finding the claimant attorney's tactic "had the effect of delaying the delivery of benefits and increasing litigation and expense, directly contrary to the self-executing system intended for workers' compensation claims." They continued that "(t)his dispute was not the result of inadvertence or ignorance, but rather was the result of an attorney's intentional act that we consider inappropriate sharp practice and gamesmanship." Quoting the Oath of Admission to the Bar and the Bar's Creed of Professionalism, they noted that "(l)awyers' adherence to these pledges and duties would eliminate the improper "gotcha" tactics that generate disputes such as this that unfairly and needlessly consume public and private resources while delaying the workers' compensation process and making it more expensive." One time changes must be requested in a "readily apparent, unobscured and unambiguous" manner to place the E/C on notice of the request.

Lastly, we have Perry v. City of St. Petersburg, (Fla. 1st DCA 8/7/2015), which reminds us all of the applicability of Daubert at every stage of proceedings. The court held that the JCC erred in determining he was not required to address Claimant's challenge, based on section 90.702, Florida Statutes, as amended July 1, 2013, regarding the admissibility of the expert opinion of the Employer's independent medical examiner, Dr. Maniscalco. The court agreed that the JCC erred in not applying such a Daubert analysis to the E/C’s IME expert opinion for the purposes of determining whether a conflict existed to justify the appointment of an EMA.

Wednesday, August 19, 2015


Suarez v. Steward Enterprises/Travelers, (Fla. 1st DCA 5/12/15)
Applicability of Witness Fee Cap to EMAs
Expert medical Advisors (EMAs) are being seen with increasing frequency in the workers’ compensation arena. The legislature has limited the fees the EMA can charge for their evaluation and also has limited how much expert witnesses can charge for depositions. However, some EMAs seek to charge beyond those amount for a deposition. Here, the DCA granted the claimant’s Petition for Certiorari and quashed the JCC’s Order denying the claimant’s request to limit the EMA’s deposition fee to $200 per hour. The EMA demanded a deposition fee of $750 per hour and required a deposit of $750 prior to providing testimony. The JCC declined to determine the fee, concluding that giving a deposition is not a service contemplated by either the statute or the rule governing EMAs. Further, the JCC concluded that because "the EMA is not a mere health care provider, but an expert," the fee limitation in section 440.13(10) did not apply. On appeal, the court that the irreparable harm element of certiorari was met in this situation because if the claimant foregoes the deposition because of the impermissible cost, the claimant will be without means to either contest the EMA’s report below, or demonstrate harmful error on appeal. Turning to the question of whether the JCC departed from the essential requirements of law, the court noted that a JCC has jurisdiction to resolve issues regarding discovery, along with disputes regarding statutorily-regulated litigation charges pertaining thereto. The court further noted that section 440.13(10), provides that "[a]ny health care provider who gives a deposition shall be allowed a witness fee. The amount charged by the witness may not exceed $200 per hour." When read as a whole, the statutory limits apply to EMAs as they are health care providers as defined in Chapter 440. This decision furthers the overall intent of Chapter 440 that an efficient and self-executing system be created which is not an economic or administrative burden. Saddling either parties with exorbitant fees for depositions not only creates an economic burden, but it also would create a chilling effect on the ability of claimants with limited means to pay for the right of taking the EMA deposition.
Broadspire/Crawford & Tampa and Stone Container Corp. v. Jones, (Fla. 1st DCA 5/8/2015)
Effective Date of Causation Standard
Claimant sustained injuries in a workplace explosion in 1981 and received authorized medical care for orthopedic injuries and psychological care for PTSD since that time. In October of 2013, the claimant sought payment of attendant care to his wife, which the E/C denied.

The first issue was whether the JCC’s decision to apply the causation standard in effect at the time of Mr. Jones’s 1981 workplace injury, rather than the standard in section 440.09, Florida Statutes (2013), was error. It was not. The JCC rejected the E/C’s argument that a selected portion of current version of section 440.09, relating to the "burden of proof" for causation, applies as a procedural change. Not all changes in the burden of proof are retroactive. See, e.g., S. Bakeries v. Cooper, 659 So. 2d 339, 340 (Fla. 1st DCA 1995) (holding statutory amendment restricting admissible medical evidence has no retroactive application because it depends on statutory processes relating to expert medical advisors, authorized treating providers, and independent medical examiners which altered parties’ substantive rights). The substantive rights of the parties are fixed at the time of the accident and injury. Here, court concluded that the amendment to section 440.09 in 1994 affected Mr. Jones’s substantive rights by changing an element of his claim with the additional requirement that he prove that his compensable injury is the "major contributing cause" of any other resulting injury; thus, under the current standard, if applied to his 1981 accident, Mr. Jones would be potentially precluded from establishing causation for what was previously a compensable condition under the law in effect at the time of his workplace injury. The JCC, therefore, properly declined to apply the current version of section 440.09 as to the causation of Mr. Jones’s injuries.

Babahmetovic v. Scan Design Florida Inc. / Zenith Insurance, (Fla. 1st DCA 5/1/2015)
(Mike Winer's case)
120 day Rule/One Time Change in Physician
The DCA reversed the JCC’s denial of a one time change based upon the E/C’s 120 day defense. The claimant lifted a heavy box at work on October 9, 2013 and injured his low back. The E/C sent him to Fast Track Urgent Care who indicated that the "injury/illness for which treatment is sought" was "work-related." Fast Track next referred Claimant to Dr. Delgado, who first saw Claimant on November 15, 2013. Dr. Delgado concluded Claimant had both a resolving lumbar muscle sprain and, as a condition preexisting the date of the work accident, degenerative disk disease. Dr. Delgado checked the same "work-related" boxes on his DWC-25. However, later the same day, the doctor sent a letter to the E/C indicating the cause "regarding the lumbar spine" was 60% the preexisting condition, and only 40% the "workplace injury." Twelve days later, the E/C issued a denial of compensability asserting the accident was not the MCC of the need for treatment. The claimant then requested a one time change which the E/C denied.

On appeal, the court held that while there must first be a compensable accident and injury before an employee is entitled to any benefit allowed in Chapter 440, the JCC erred in not recognizing the existence of a compensable injury in this case. Causation, in workers' compensation, is established by MCC, and MCC is a concept that can potentially apply at two different stages of a determination of entitlement to benefits. First, the work performed must be the MCC of a compensable injury. Second, where there is a preexisting condition, the compensable injury must be the MCC of the need for treatment. Only the first of these MCC analyses factors into a determination of compensability of the original injury. Here, the JCC's conflated the existence and cause of the injury — compensability — with the existence and cause of the need for treatment. On the facts in this case, it was not disputed that the sprain otherwise met the requirements of compensability (it occurred by accident, it resulted in injury (the sprain), it arose out of and in the course and the scope of employment). Given these facts, the JCC should not have applied an MCC analysis to determine the existence of a compensable injury, because there is no evidence (nor allegation) that the sprain was caused by degenerative disk disease or anything other than work. Because the claimant suffered a compensable injury and received treatment therefor, he is entitled to a one-time change in treating physician as "an absolute right" because he made a written request for such during the course of treatment.

The E/C also denied compensability in reliance on the 120-day rule, but did not provide written notice to Claimant of its intention to rely on that rule as § 440.20(4), Fla. Stat. (2013) requires. ("Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days.") An employer/carrier must "elect" to rely on the rule, as both the rule itself and case law indicate. See §440.192(8), Fla. Stat. (2013) ("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. . . ."); Bynum Transp. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA 2000) ("When an E/C becomes aware that a claimant had medical needs, it should either pay for them, pay and investigate under section 440.20(4), or deny compensability."). The court held that an E/C who pays yet does not provide written notice "[u]pon commencement of payment" cannot avail itself of the 120-day rule to deny compensability, because it has elected to "pay" rather than to "pay and investigate."

This decision makes perfect sense. To hold otherwise would result in treating this notice requirement as optional, so that E/Cs are in the same exact position if they provide notice as if they fail to do so. This renders the requirement of "notice to the employee" as a meaningless surplusage, sending a message to carriers across the state that they have no obligation at all to "provide notice to the employee that it have elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days the letter." If possible, every word and provision of a statute should be given effect, and none should be treated as mere surplusage. See State v. Goode, 830 So.2d 817 (Fla. 2002)(A basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.")

Furthermore, there is precedent for the court imposing a similar penalty in similar situations in cases where the E/C fails in its duties to notify the claimant. The penalty of the E/C being precluded from raising a 120 day denial for failure to send an information letter to the claimant is akin to the penalty imposed on an E/C for failing send the claimant the notice provisions of section 440.185, Fla. Stat. See Southern Bell v. MacDonald, 671 So.2d 207 (Fla. 1st DCA 1996)(holding that the statute of limitations did not bar claim for benefits where E/C failed to advise claimant of her rights under section 440.185(2)(e), Florida Statutes (1985)). Thus, the holding of the court is a mere extension of sound legal principles to which the court has long adhered. **The E/C filed a Motion for Rehearing and Rehearing en banc which remains pending as of the time of this article.

Cuenca v. Nova Southeastern Univ./York Risk, (Fla. 1st DCA 4/9/14)
Attorney Fees/Medical Only Fees
It is the complaint of many a claimant attorney that when he enters the courtroom dealing with a fee issue, there are two opponents: counsel for the E/C and the JCC himself. Many JCCs have made it their mission to ignore the stipulations of the parties and go beyond to investigate the propriety of agreed fees rather than allowing the parties to resolve the fee issues through an agreement and put an end to the dispute. Such was the scenario in this case where the JCC refused to enter an order approving a stipulated $1500 medical only fee. The claimant filed a PFB on 12/5/13 against Nova and PMA seeking medical benefits. The E/SA never sought to dismiss this PFB. A second PFB filed on 2/14/14 named York and PMA as carrier and sought the same benefits. The parties later attended mediation and agreed to settle the claim for a lump sum and the E/SA separately agreed to pay an additional $1500 medical only fee and $275 in costs. JCC Lazarra approved the fee on the settlement, but denied the side fee and costs. The JCC conducted his own review of the DOAH docket and to his review, the stipulation showed "presumably" that the failure to respond to the first PFB was because of the wrong SA being listed, and thus, despite the stipulation of the parties to the contrary, the JCC concluded that the second response was timely.

The claimant sought rehearing and listed the specifics to support entitlement to the medical only fee. That too was denied. The DCA reversed the JCC finding the record did not support the his presumptions and held that entitlement to the fee and costs existed. Additionally, the court noted that for the JCC to properly take judicial notice of the records on the docket, he "should provide advance notice of the intention to do so and a reasonable opportunity to object." Where else but in the bizarre world of workers’ compensation does a judge refuse to accept the stipulations of the parties that a fee is owed and conduct his own investigation into the matter and to make matters worse, fail to even advise the parties that he is going to do so?

Tuesday, August 18, 2015

Trend's Florida Legal Elite 2015

Voting for this year’s Legal Elite attorneys began in October 2014 when Florida Trend invited all in-state members of the Florida Bar to participate. Multiple announcements publicized the ballot deadline and voting guidelines.

Lawyers were asked to name attorneys whom they hold in the highest regard or would recommend to others. Voters were also asked to name three “up and coming” attorneys, and in a separate category, outstanding attorneys working in the government and non-profit sectors.

For the 4th year in a row, Michael Winer has received the distinction and honor of being selected to Florida Trend's Florida Legal Elite 2015. The resulting lists represent fewer than 2% of the active Florida Bar members who practice in Florida.

See the following links:

Law Office of Michael J. Winer, P.A.
110 North 11th Street, 2nd Floor
Tampa, Florida 33602-4202
phone: (813) 224-0000
telefax: (813) 224-0088
Chairman, Workers' Compensation Section of the Florida Bar
Board Certified in Workers' Compensation
AV Rated by Martindale-Hubbell

Friday, April 24, 2015


There has been a flurry of significant activity in the world of workers’ compensation over the past four months. In November in Castellanos v. Next Door, SC13-2082, the Florida Supreme Court heard oral argument on the issue of the constitutionality of the attorney fee provisions contained in section 440.34. Since the briefing was completed in the Castellanos case, the First DCA has certified the same questions in no less than six other cases. Further, the court lifted stay orders in three other cases (Richardson v. Aramark, Louis Pfeffer, et al. v. Labor Ready and Diaz v. Palmetto General Hospital) involving the same certified questions and allowed the parties to submit briefs on those issues. 

 This has obviously shown the court that the problems associated with the draconian fee limitations of section 440.34 are not mere isolated events, but rather a pervasive and systemic problem that undermines the very purpose of the workers’ compensation act, resulting in a system in which Claimants are unable to secure counsel necessary to pursue their benefits and vindicate their rights. In addition, on March 29,2015, the 3d DCA held oral argument in Padgett v. State of Florida, 3d DCA No. 14-2062 on the issue of workers’ compensation as the exclusive remedy under section 440.11 following the Order of the Trial Court that the exclusive remedy provision of the workers’ compensation act was unconstitutional. Practitioners also await the outcome of the constitutional challenges on the duration of temporary indemnity benefits as raised in the case of Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management and State of Florida, SC13-1930. A written decision in favor of employees in any one of these decisions could send shock waves through the workers’ compensation system and radically alter the benefits available to injured workers. In the meantime, here are your latest case summaries:
In circuit court, even the most zealous carrier understands that it is axiomatic that it has to bear the cost charged by its own doctor to videotape the IME exam. In the workers’ compensation arena, carriers fight that charge, seeking to saddle claimants with paying the charges levied by their IME doctor to video the exam. In Hancock v. Suwannee County School Board/Fla. Sch. Brd. Ins., (Fla. 1st DCA 10/31/2014), the JCC ruled that he did not have jurisdiction to determine the reasonableness of the E/C IME’s $1500 charge for a videographer’s presence at the IME appointment. The basic facts were not disputed. The E/C properly noticed their IME and the doctor required a $1500 fee to record the exam. The issue of who would pay this fee remained unresolved on the morning of the IME, and when the claimant appeared with a videographer, she was turned away. The E/C sought a $600 "no show" fee from the claimant, which the JCC ultimately ordered per F.S. s 440.13(5)(d). However, the JCC stated he had no jurisdiction to determine the reasonableness of the $1,500 fee but nonetheless ordered that the Claimant "shall be responsible for any additional physician fees" assessed by the E/C’s examiner because of the videographer. In other words, the Claimant would have to pay the $1500 fee and there would be no due process for her as to the legality or reasonableness of that fee.

On appeal, the DCA limited the ruling to this jurisdictional question and reversed, holding that the JCC does have jurisdiction "to determine whether the doctor’s requirement of a $1500 advance payment for the presence of a videographer at the IME was reasonable or appropriate under the law." The court noted that there is no question that Claimant is entitled have a videographer at the IME, and there is no dispute that Claimant is responsible for paying the charges assessed by her videographer. The dispute in this case is who is responsible for paying the additional $1500 charge assessed by the doctor simply because Claimant will have a videographer present during the IME. Because the case was decided solely on jurisdictional grounds, the DCA stopped short of determining whether or not the charge was reasonable or even allowed to be assessed against the Claimant. The language of the decision at least suggested that future requests where the Claimant is saddled with the charges to videotape might not be viewed favorably. The court noted that, "A physician undertaking the role as an IME is not at liberty to demand that payment be made on his or her terms, but is instead regulated by statutorily mandated reimbursement standards. See § 440.13(12)(d), Fla. Stat. (2012); see also Florida Workers’ Compensation Health Care Provider Reimbursement Manual, 2008 Edition, § VII F.2. & I.2., at 20-22." This, combined with the requirement in section 440.13(5) that "each party requesting and selecting the independent medical examination shall be responsible for all expenses associated with said examination, including, but not limited to, medically necessary diagnostic testing performed and physician or medical care provider fees for the evaluation" should erase all doubt that carriers must pay this charge.

As a practical matter, the reasons some doctors offer to justify the recording of an examination are simply ludicrous. Some doctors maintain that they have to use a bigger room in their own office. Others maintain that the examination takes longer..... this begs the questions, does the doctor perform a more comprehensive examination on camera compared to off? The real motive is evident- profiteering. Conservative doctors know there is demand for their services and carriers would prefer to pay $1,500 extra to video tape the IME, no matter how baseless the charge, and secure a denial of benefits rather than leave the matter to risk.

Over 50 years ago, in Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla. 1960), the Florida supreme Court held that the workers' compensation law is intended to provide a direct, informal, and inexpensive method. Because of this, many have questioned whether the rigorous standard for scientific evidence in Daubert is intended to apply in workers’ compensation cases. The DCA answered this with a yes in Giaimo v. Florida Autosport/Summit Claims/Fla Retail Federation, (Fla. 1st DCA 11/26/14). There, the Claimant sustained neck and back injuries resulting in a fusion surgery at C5-6. At trial, the E/C asserted apportionment based on medical testimony that 49% was due to pre-existing injuries and 51% for the work injury. The JCC accepted this testimony over the Claimant’s Daubert objection. When asked in deposition how he arrived at the 51/49 percentage, Dr. Lee testified "when I was asked and thought about it that is the answer I came up with."

On appeal, the DCA stated that Daubert does indeed apply to workers’ compensation cases as well as "to all expert testimony, including that in the form of pure opinion." The DCA held that Dr. Lee’s opinion was inadmissible under F.S. 90.702 which sought to prohibit "pure opinion testimony" and require that admissible opinions be (1) based on sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the product of the witness applying the principles and methods reliably to the facts of the case. Although the DCA agreed Dr. Lee’s opinions were sufficient for the first element, they found they were insufficient under the second and third, as they lacked any evidence of reliable principles and methods or their application. The DCA noted that the JCC’s justification for admissibility of his opinions was precisely the "pure opinion" testimony the amendment seeks to prohibit. This decision is significant as it pertains to the defense of apportionment, which requires physicians to give percentages as to what exact percentage is related to the accident vs. what is pre-existing. No credible doctor can give an opinion that 27% of the need for treatment is pre-existing and have that opinion be the product of reliable principles and methods and the product of applying the principles and methods reliably to the facts of the case. Practically, Daubert should in most instances signal the death of the apportionment defense.

Advances serve a critical purpose in the workers’ compensation system. Carriers decide which doctors that claimants will see and then decide whether to provide benefits. Because no meaningful penalty or deterrent exists when carriers refuse to provide benefits, carriers often deny claims based on tenuous grounds and claimants then often go without. Advances provide an important stopgap relief. Unfortunately, all too often, carriers fight advances, requiring a showing of complete destitution as a predicate. In Bonner v. Miami/Dade Public Schools/Gallagher Bassett, (Fla. 1st DCA 10/7/2014), the DCA clarified that such a showing of extreme poverty is unnecessary. There, the DCA reversed the JCC’s denial of a $2,000 advance, finding his ruling exceeded the claimant’s burden to show entitlement to an advance. At the hearing on the $2,000 advance, the claimant testified without contradiction that she had been out of work for 18 months on sick leave, and returned with a reduction in wages. She further testified that an advance would "get her up to date" as well as put food in her refrigerator, gas in her car and help her pay bills. The JCC found that her bills appeared to be for luxury expenses and that there was an insufficient nexus to the accident to award the advance. The DCA noted that although an advance does require a nexus to the accident, whether the claimant was spending money on luxury items is not a consideration of F.S.§ 440.20(12). The court found that the uncontroverted evidence showed that the financial difficulties requiring the advance were due to the reduction in wages following the industrial accident and that claimants are not required to achieve "pauper status" to qualify for an advance.

Though not a workers’ compensation case, the issues relating to undocumented workers frequently arise in workers’ compensation cases. Claimants are often asked in deposition to admit to things that could expose them to criminal liability (i.e., is your SSN legal? Did you use an invalid SSN to obtain employment?) The answers would clearly result in the admission of a crime. In Appel v. Bard, (Fla. 4th DCA 1/21/15), the Plaintiffs obtained an order requiring Defendant to answer deposition questions and interrogatories asking whether he had filed federal income tax returns. Defendant filed a Petition for Certiorari, seeking to quash the order compelling him to answer, arguing that his answers could "evoke a response forming a link in the chain of evidence which might lead to criminal prosecution. The DCA granted Defendant/Petitioner’s Petition and held that where a party requests information and the opposing party asserts a 5th Amendment Privilege, the court "must exercise its discretion and determine whether it is reasonably possible that answers to either interrogatories or deposition questions could evoke a response "forming a link in the chain of evidence which might lead to criminal prosecution." The privilege is inapplicable only "if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness." The DCA found that compelling Appel to answer yes-or-no in response to whether he filed tax returns would force him to admit or deny the very thing the government would be trying to prove in a federal tax prosecution—an essential element of the crime, presumably "aiding" the prosecution by lowering the government’s burden.

In Echevarria v. Luxor Investments LLC, AIF Ins. Co. (Fla. 1st DCA 3/18/15), Claimant suffered a compensable injury that resulted in a permanent impairment rating. In need of follow up treatment, he sought an evaluation with his authorized neurologist. The JCC denied the evaluation based on a finding that "no further neurological treatment is medically necessary…" The DCA affirmed and wrote separately to refute claimant’s arguments that a claimant assigned a permanent impairment rating is entitled to ongoing palliative treatment as a matter of law, in the absence of medical testimony establishing the need for such treatment.

At first blush, this decisions seems entirely reasonable, but when you peel the layers of the onion back, what is left at the core is inedible. A claimant who suffers a compensable injury that requires treatment should, at a bare minimum, be entitled to a follow up appointment to determine if he does in fact need further care. To hold otherwise would allow carriers to deny follow up visits to claimants and require them to pay out of their own pocket to get an IME to justify the need for continued care. This is contrary to the very legislative intent as expressed in section 440.015 that "the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker ..... at a reasonable cost to the employer." What deterrent does a carrier have to denying legitimately injured claimants the right to follow up medical appointments to at least determine whether ongoing care is necessary? Unfortunately, there is none.

In Perez v. Southeastern Freight Lines, Inc./Gallagher Bassett Svcs, Inc., (Fla. 1st DCA 3/20/15), the court again clarified the standards for compensability. The DCA noted that after the claimant carries his burden to establish initial compensability of an injury, for example by a prior ruling or a stipulation, the E/C may not challenge the causal connection between the work accident and injury, but only the causal connection between the injury and the connected benefit. Further the E/C must demonstrate a "…break in the causation chain... such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the compensable injury". Thus, a Claimant, after a stipulation on compensability, is absolved of the need to reestablish objective relevant medical findings, and if there is no evidence of a break in causation, claimant meets the burden to prove causal relationship between the injury and the benefit.

The case law has always been clear that in the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found per se based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal. However, the 1st DCA previously seemed to carve out an exception to that rule for Expert Medical Advisor (EMA) cases. See Taylor v. TGI Friday's, Inc., 16 So. 3d 312 (Fla. 1st DCA 2009)(Petitioner fails to demonstrate that the JCC's order requiring him to attend an examination with an EMA will cause a harm which is not remediable on appeal). In Gonzalez v. AMC/CCMSI, (Fla. 1st DCA 3/12/2015), the DCA seemed to provide some clarification that an improperly granted EMA meets the irreparable harm criteria. The DCA stated that the "physical examination by the EMA, were it to take place, would constitute harm not remediable on appeal because claimant objected to being physically examined." The court nonetheless affirmed because the JCC did not depart from the essential requirements of law. At least now, there is clarity that where the Claimant objects to the examination by the EMA, such exam would constitute harm not remediable on appeal.