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.

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