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.
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