What happened in Miami this week?

"The purpose of a workers' compensation act is not for it to be used as weapon in an economic civil war.  Its purpose is to provide adequate compensation for on the job injuries in place of the tort remedy so as to relieve society from the costs of industrial injuries"  Padgett v. State of Florida, No. 11-13661 CA 25 (Fla. 11th Cir. Ct. Aug. 13,  2014).

Those of us who practice in Miami are accustomed to such fiery rhetoric from the bench in south Florida and on August 13, 2014 Judge Cueto of the 11th Circuit Court in Miami joined the increasing groundswell of apparent judicial frustration concluding that successive legislative sessions have so diminished medical care and wage-loss benefits that the Florida Worker's Compensation Act no longer provides a reasonable alternative to suit in civil court and violates employees' fundamental rights.  In the twenty-two page opinion, Judge Cueto reviewed the evolution of the Act originally passed in 1935 in a time when there were few state or federal sponsored social aid programs making the Act a reasonable alternative to tort litigation which allowed employees to "opt out" of coverage of the Act until the 1970 legislative session repealed that right making the Act the exclusive remedy.  Cueto stated "[t]he trade off was the Act was designed to provide fast, sure and adequate payment in exchange for the tort remedy that was cumbersome, slow, costly and which it had been legally difficult for injured workers to prevail."

The original "trade off" started to change In 1973 when the Florida Supreme Court shifted away from a pure contributory negligence doctrine where a plaintiff may be denied compensation if found negligent to any degree to comparative negligence allowing the plaintiff to recover according the defendant's degree of fault.  See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973) Because the value of  the "trade off" was now considerably more given higher expectations in plaintiff tort recovery, Cueto reasoned that the benefits under the Act should have increased substantially but instead were reduced dramatically through various legislative changes through October 1, 2003.  

Cueto concludes that because the benefits presently defined in the Act are no longer significant, the exclusive remedy violates the 14th amendment to the U.S. Constitution Due Process Clause citing specifically to the elimination of permanent partial disability benefits on October 1, 2003 without providing a reasonable replacements to these and other benefits leaving the injured worker without a reasonable alternate remedy to the tort remedy therefore making the 440.11 exclusive remedy provision constitutionally infirm and invalid. 

WHAT DOES PADGETT MEAN TO EMPLOYERS IN FLORIDA?

Clearly we are early on in the understanding of the ultimate meaning of Padgett.  This case will likely join Westphal and Castellanos which challenge similar limitations on benefits and reasonable attorney's fees.  Nevertheless, we expect the initial impact of Padgett will be venue specific to Miami until the parties exhaust the anticipated state appellate process.  The case would be appealed to the Florida 3rd District Court of Appeals which may pass the matter to the Florida Supreme Court given the existing challenges before the Court via Westphal and Castellanos. While the process may not conclude for several years, Padgett will stand as the law of that venue likely birthing similar challenges in other receptive jurisdictions.  Florida's Attorney General has 30 days to intervene and appeal.   Those employers with significant labor assets in this venue should begin preparation for a higher volume of liability claims following what would otherwise be a workers compensation claim.  That being said, the ultimate value of the Act to the injured worker is the swift provision of medical care and partial reimbursement for lost wages.   Injured workers may initially seek treatment under Medicaid as we anticipate they would demonstrate the requisite financial criteria.  Liability plaintiff's may use letters of protection to secure needed medical attention.  On a national level, some believe all eyes now turn to Florida as several other state legislatures are experiencing similar judicial attacks to current workers' compensation systems.  

Miami attorney Michael A. Hernandez now Board Certified in Workers Compensation

Miami, Fl - Effective August 1, 2014, Miami attorney Michael A. Hernandez became Board Certified in Worker's Compensation law.  He is the only Board Certified Worker's Compensation defense attorney in Miami, Fl.  

Board certified lawyers’ experience and competency have been rigorously evaluated, and they are the only Florida lawyers allowed to refer to themselves as specialists or experts or to use the letters B.C.S. to indicate Board Certified Specialist when referring to their legal credentials. Board certification is The Florida Bar’s “Legal Expert” status.

Mr. Hernandez takes great pride in this accomplishment as it marks a significant milestone in his career as a defense attorney.  This achievement is especially significant as it was one made possible as a direct result of the knowledge gained through myriad defense claims and issues he has assisted Employers, Insurance Carriers, TPA's, PEO's, and others with throughout his career. Mr. Hernandez looks forward to continuing to represent the interests of Employers, Insurance Carriers and TPA's throughout South Florida. 

“Board certification is one of the highest recognitions a lawyer in Florida can receive. The very difficult testing and extensive background peer review to confirm professional conduct is such a high standard that just seven percent of our eligible membership has achieved this level of recognition.”

— — Florida Bar President Gregory Coleman

Respond within 3 or 10 days or waive right to deny...

F.S.440.13(3) contains a wealth of different timeframe based triggers by which a Carrier must respond to a request for treatment from an authorized provider.  F.S.440.13(3)(d) gives the Carrier 3 business days to respond to such a request or the Carrier "consents to the medical necessity for such treatment."  

Notwithstanding, pursuant to F.S.440.13(3)(i), for claims seeking specialist consultations, surgical operations, physiotherapeutic or occupational procedures, x-rays or diagnostic tests over $1,000,00, the Carrier has 10 days to respond.  Now, here is where things get interesting. Unlike F.S.440.13(3)(d) which specifically notes that failure to respond results in a consent to medical necessity for such treatment, this section specifically lists a few exceptions where the Carrier does not have to provide such care even if not timely responded to, including where a JCC determines a consultation or procedure is not medically necessary.  

In Andino-Rivera v. Southeast Atlantic Beverage Company/Gallagher Bassett, a request was made for pain management evaluation, but following an IME, the authorized doctor rescinded the request, leaving no doctors requesting the evaluation or indicating it was medically necessary. Further, the Claimant counsel conceded that the request fit into the specialist consultation criteria of F.S.440.13(3)(i).  The JCC denied the request as not medically necessary due to no doctor requesting the evaluation any longer, but the First DCA found that the only inquiry was whether the Carrier responded timely or not.  As a result, they remanded for the JCC to answer this question and issue an updated ruling.

From a practical perspective, this reinforces for all adjusters that there is a premium on timely responding to medical requests.  This case makes it more difficult to escape waiver when a timely response is not provided.  The response need not be eloquent or verbose, merely a response of almost any kind.  Formulating standardized language which basically amounts to a maybe would be a good practice to insulate from any resulting exposure stemming from this statute and caselaw interpretation.  Additionally, arguing that other defenses such as major contributing cause still apply would also likely remain viable in the face of this recent decision.  

As always, if you face a challenging set of facts, or if you just need an opinion on how to proceed in a given claim, don't hesitate to contact one of our attorneys for assistance or guidance.  

Assert SOL for each and every Petition for Benefits or waive it!

If you're reading this blog, you almost certainly are aware that F.S. 440.19 provides for a two year period from the date of accident to file a PFB, and beyond that, a one year period for medical or indemnity benefits, and if either such period lapses, then the statute of limitations (SOL) potentially becomes a viable defense, subject to other conditions which have evolved through interpretation of the statute and caselaw.  A key provision of this same section of the statute is that "“the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits.” (Emphasis added.)

Well, for years many, most, if not all practitioners and adjusters operated under the premise that responding to the first PFB asserting the SOL defense would satisfy this statutory requirement.  Well, the First DCA in Childers v. Clay County Bd of County Commissioners/Scibal Associates made it clear today that you need to respond to each and every Petition for Benefits filed during a period when the statute of limitations is being asserted, by specifically noting that the claim is barred by the SOL.  This is a seemingly benign, small case which could have a big impact if you are caught being unfamiliar with this new twist on the law.  I expect any and all cases out there with a pending SOL defense to see a wave of PFB's being filed in hopes of obtaining this kind of waiver of the defense.  As always, if you have any questions about this case, or any area of the law, don't hesitate to contact one of our attorneys for assistance.

What Do the Attorney Fee Tea Leaves Reveal?

What Do the Attorney Fee Tea Leaves Reveal?  In Castellanos v. Next DoorCompany/Amerisure, the First DCA addressed a matter in which the Judge of Compensation Claims awarded Claimant's counsel an attorney's fee of only $164.54 for 107.2 hours of legal work, based upon the guidelines of F.S. 440.  The underlying fee was challenged, as so many similar fees with exorbitant hours and paltry fees have been, on the grounds the statute was unconstitutional.  The First DCA concluded that the statute was in fact constitutional, based on prior precedent...So, nothing to see here folks...

However, in a surprising final act, the First DCA nevertheless certified the following as a question of great public importance "WHETHER THE AWARD OF ATTORNEY'S FEES IN THIS CASE IS ADEQUATE, AND CONSISTENT WITH THE ACCESS TO COURTS, DUE PROCESS, EQUAL PROTECTION, AND OTHER REQUIREMENTS OF THE FLORIDA AND FEDERAL CONSTITUTIONS" (No emphasis added)

As a result, there is considerable uncertainty as to whether the Florida Supreme Court will simply affirm the attorney fee statute as is, declare it unconstitutional in whole or in part, or otherwise alter the statute.  Speculating on the outcome offers about as good a chance of being right as one would get playing blackjack, but suffice it to say, if you have an attorney fee matter outstanding in a matter which would currently be regulated by the statutory fee regimen, it is highly advisable to try and resolve it before the Florida Supreme Court potentially changes it to an hourly fee case for the Claimant's attorney.