I just got to thinking about the legal effect of trying to remove the word "reasonable" from the attorney fee section of chapter 440. Does lining out the word really have any meaning? I think not.
Statutes are interpreted every day to get a "reasonable" result. That is what the Supreme Court did in Murray v. Mariner Health. I postulate that the word "reasonable" must be read into every attorney fee statute, whether spelled out or not. It's called 'public policy'. The bar requires all fees to be reasoanble.
In a 1952 decision concerning attorney fees for actions to enforce rights under an insurance contract, the Florida Supreme Court wrote, " This statute (the Insurance Code) is part of the public policy of the State of Florida and its purpose is to discourage the contesting of policies in Florida Courts and to reimburse successful plaintiffs reasonably for their outlays for attorney's fees when a suit is brought against them, or they are compelled to sue, in Florida Courts to enforce their contracts". And, "The business of insurance is affected with a public interest and therefore is subject to reasonable regulation by the legislature", Feller v. Equitable Life Assurance Society, 57 So. 2d 581 (Fla 1952).
The concept of 'reasonableness' permeates Florida law. Presuit investigation in Medical Malpractice actions requires 'reasonable' investigation, and the award of 'reasonable' attorney fees, s.766.206 Fla. Stat. 2004.
The legislature has mandated the inclusion of the word 'reasonable' in contracts that leave the word out! s.672.309 (1) Fla. Stat., "The time for shipment or delivery or any other action under a contract if not provided in this chapter or agreed upon shall be a reasonable time" .
The Third DCA has said, "Where, as here, the fee based purely on the schedule of fees suggested by a local bar association, it violates the rule of Munroe v. Birdsey, 102 Fla. 544, 136 So. 886 (1931) which requires reasonable compensation based upon the services provided, and, A court is without power to measure an attorney's fee except on the basis of quantum meruit or a quid pro quo, and the amount of fees should pose an amount that public standards will approve for the work done, the time consumed, and the skill required. So much may be said of evidence based on schedules that is not shown to bear a proper relation to these elements as they effect the case at hand, Adler v. Schekter, 197 So. 2d 46 (Fla. 3 DCA 1967).
The Supreme Court, citing Lee Engineering v. Fellows said, "We must reverse the fixing of attorney fees on a contingency percentage and remand for further consideration on this issue alone". The factors that go into a fee cannot be eliminated from a fee award, even if stipulated to, Galarneau v. Caroly of Miami, 299 So. 2d 579 (Fla. 1974).
An agreement by a party to pay an attorney's fee of an unspecified amount is an agreement to pay a reasonable attorney's fee, Farnell v. Farquhar Mach Co., 114 So. 506, Fla. 1927), Boyette v. Reliable Finance Co, 184 So. 2d 200 (Fla 2 DCA 1966), Trustees of Cameron Brown v. Tavormina, 385 So. 2d 728 (Fla. 3 DCA 1980).
May the holder of a note which provides for an attorney's fee without specifying a percentage of the principal in event of enforcement be allowed a 10% fee without proof of the reasonableness of the amount of the fee? s. 687.06 Fla. Stat. 1977 authorized the assessment of an attorney's fee of 10% of the principal in every case where no more than 10% was requested by the successful plaintiff. It is often the case that where there is an agreement to pay a reasonable attorney's fee, it is shown that a fee of more than 10% is reasonable. Plaintiff would retain that right but deny to the defendant an opportunity to be heard when the defendant could show that a fee of less than 10% was reasonable. In our view such an interpretation of the statute would render it unconstitutional. The statute as written simply provides that where a party agrees to a fee of 10% or less, that fee need not be proved reasonable, Sepler v. Emanuel, 388 So. 2d 28 (Fla. 1980).
Even pre existing fee arrangements between a lawyer and his client may be disregarded if the result is an unreasonable fee, Pavlik v. Acousti Engineering Co, 448 So. 2d 638 (Fla. 4 DCA 1984). In a concurring opinion Judge Glickstein wrote, "Second, I am as concerned with mechanic's lien claimants' access to the courts as I am for a financially troubled spouse whose husband, the breadwinner, has taken a walk. A short-changed claimant and a financially desperate spouse are often in the same position because the party holding the purse strings removes the purse. It follows that in both situations, the ideal is for the client and the lawyer to draft an agreement that provides for a reasonable hourly rate, with the understanding that the Code of Professional Responsibility may justify collection of more from the adversary, Pavlik, infra.
Last, Davis v. Keeto, 463 So. 2d 368 (Fla 1 DCA 1985 is oft quoted for the proposition that a claimant, without the aid of comeptent counsel would be as helpless as a turtle on its back. The case has much more to offer. The amount of benefits obtained, though an important factor to be considered in setting fees, is not the only factor and does not set the maximum amount that can be awarded as a fee. Were it otherwise, the E/C could resist payment of smaller claims, and those claims would be virtually uncollectable, Davis, infra.
Remember too that Lee Engineering Co. v. Fellows, 209 So. 2d 454 (Fla. 1968) commented that there could be no set mandatory fee schedule in Florida because of the economic disparity from one end of the state to the other making the fee schedule reasonable in one area but unreasonable in others.
The word "reasonable" remains in s.440.34, you just can't see it.
Tuesday, June 30, 2009
Sunday, May 10, 2009
My Letter to the Herald: Gov. Crist, Veto Comp Bill
Dear Editor:
Some things are below our radar because they fall into the category: "It won't happen to me". We don't think about Tornadoes because they are so rare in Miami that : "It won't happen to me". Same with earth- quakes and Tsunami's. Even Global Warming and Drought fit into this category. We don't think much about the bridge we are traveling over collapsing, or a tree falling on our car. Personal disasters, shootings, serious accidents, all happen to the other guy, not me.
This is the reason the Insurance and Business Lobby can get away with pressuring the legislature and the governor to enact laws that reduce the ability of the ordinary citizen to recover for disasters and injuries. It happens all the time to the Insurance industry and to Business. They get hit with having to pay for those rare instances where one of us gets hurt. Or for the 100 year Hurricane, or the faulty construction of the bridge. It's big money to them, but it won't happen to me. So we don't speak up when our rights are threatened. It's going to happen to someone else. Not me.
Well it does happen to all of us. My clients consist of those who have been hurt on the job. The widows and orphans of those killed on the job. The victims of those freak accidents that would never happen in a million years. Getting hit in the eye by a football? Falling down while running to respond to a false fire alarm. Getting hit in the face by an exploding tire. Falling off a ladder. Quadripelgia, blindness, death. All happen at work. Even in the safest of jobs. Teachers get assaulted and raped. Secretaries fall off faulty chairs and break their necks.
This past week the legislature again bowed to the pressure of business and insurance and passed SB903. Just to show how brazen they can get, they removed the word "reasonable" from the workers' compensation law. That was this years "reform". Unless a miracle happens our wonderful, kindhearted, bipartisan, Senate seat seeking governor, Charlie Crist, will sign this bill to insure he gets big contributions to his statewide campaign from Big Business and the Insurance lobby. How can he resist? Why should any of us care? It won't happen to me? WIll it? Well it sure as heck will happen to some of you. You'll get killed and your wife and three kids will be denied the minimal death benefits provided by the workers' compensation act. Up to $7,500.00 for burial and a total of $150,000.00 payable to all dependents over aperiod of time. At this years maximum compensation rate, that period of time is less than 4 years. That's it. Nothing more. And you can't sue the employer even if the grossest of employer negligence caused the death. Death from on the job injuries happened to over 400 Florida families just last year. Yes, it can happen to you and me. And the worst part is the Insurance carriers deny payment of these workers' compensation claims more than ever according to a report just released by the Division of Workers' Compensation, part of the Department of Financial Services.
So what if it does happen to you and the carrier denies your claim for medical care? For weekly indemnity benefits while you recuperate? Or denies widows and orphans benefits? You get a lawyer to fight for your rights? Wrong. Not if Charlie Crist signs that bill removing the word 'reasonable' from the law.
The part of the law that contains the word 'reasonable' is the part that requires the insurance carriers to pay your lawyer's fee when your lawyer is successful in obtaining benefits for you that were denied. Up until this session of the legislature, that lawyer was entitled to a 'reasonable' fee, set by a Judge, depending upon the benefits obtained for the client or the amount of work involved in defeating the insurance carrier. Once the word 'reasonable' is removed, the only fee a lawyer for in injured worker or the heirs of a decesed worker can be paid is tied to a formula set by...the legislature! Here's how it works: You are a teacher. First year on the job. May 2010 rolls around and you are asked to unload boxes of books from a cart and carry them to a storage area. It's over 90 degrees. While doing so you collapse and die. The school board's insurance servicing company denies that your death is related to your job and refuses to pay your funeral expenses or death benefits to your wife and 3 kids. You seek out legal help. Since death benefits are 'capped' at $150,000.00 plus $7,500.00 for funeral expenses, the lawyer who takes your case knows that the bill Charlie Crist is about to sign will 'cap' your lawyers fee, payable by the school board if you win the case, at $16,500.00 pursuant to the fee schedule that must be used. The school board's lawyers can earn as big a fee as they can charge for the hours put in defending your claim. They can run legal circles around your lawyer and paper him to death. They can delay and delay and in the end make it so unprofitable to represent the interest of the widow and the children, that that lawyer won't even take your case to begin with. The liklihood that you can handle the claim yourself in nil. You get nothing.
But if Charlie Crist vetoes SB2703, all injured workers and their dependents whose benefits are unlawfully, unreasonably or just plain mistakenly denied, will be able to get legal representation. The parties will still not be on an even footing since the insurance industry has far more resources to fight claims than contingent workers' compensation lawyers have to prosecute those claims, but at least the worker's lawyer konws that if he gets into a big battle over a small amount of benefits, he will get a 'reasonable' fee for his efforts.
Repealing the word 'reasonable' does just what big business and insurance want it to do, make fees for injured workers lawyers 'unreasonably' low in the vast majority of the claims. If there is no one to fight for the rights of injured workers or their families, will workers' compensation benefits get better and easier to obtain? Will insurance carriers deny fewer claims? Will they become the beneficent payers of all legitimate claims? As Sarah Palin might say: "You betcha" (they won't).
The famous phrase, oft quoted from Shakespeare, "Let's kill all the lawyers" was meant to describe how it would be possible for those in power to take away the rights of those being opressed. Make sure they couldn't get lawyers. Modern Shakespeare has played out in Tallahassee these past 9 weeks. Take way the lawyers from those injured at work but allow the insurance companies to have all the lawyers they want and pay them whatever they want to defeat claims. Seems fair only if you are Big Business or Insurance.
Almost 100 years ago in this country, almost 75 years ago in Florida, the right to sue one's employer for negligence and have a jury render a judgment, was taken away using the police power of the State. The replacement of the constitutional right to access to the courts was the workers' compensation scheme. It was supposed to be a fast, sure and adequate benefit replacement. It is neither fast, nor sure, nor adequate. It hasn't been so since the Report of the National Commission on State Workers' Compensation Laws said so in unanimous agreement in 1972. That's right...1972. And that's right...Unanimous. The commisison was set up by the 1970 OSHA law pushed by then President Nixon. That's right...Nixon, a Republican.
So maybe it won't happen to you. Or maybe it will. Why take the chance? Get involved now before you have to try to get a lawyer to represent you. Tell Governor Crist to veto SB2703. Tell him to leave the word 'reasonable' in the workers' compensation law and not make the workers' compensaiton scheme any more unreasonable than it already is.
Mark Zientz
www.mzlaw.com
Some things are below our radar because they fall into the category: "It won't happen to me". We don't think about Tornadoes because they are so rare in Miami that : "It won't happen to me". Same with earth- quakes and Tsunami's. Even Global Warming and Drought fit into this category. We don't think much about the bridge we are traveling over collapsing, or a tree falling on our car. Personal disasters, shootings, serious accidents, all happen to the other guy, not me.
This is the reason the Insurance and Business Lobby can get away with pressuring the legislature and the governor to enact laws that reduce the ability of the ordinary citizen to recover for disasters and injuries. It happens all the time to the Insurance industry and to Business. They get hit with having to pay for those rare instances where one of us gets hurt. Or for the 100 year Hurricane, or the faulty construction of the bridge. It's big money to them, but it won't happen to me. So we don't speak up when our rights are threatened. It's going to happen to someone else. Not me.
Well it does happen to all of us. My clients consist of those who have been hurt on the job. The widows and orphans of those killed on the job. The victims of those freak accidents that would never happen in a million years. Getting hit in the eye by a football? Falling down while running to respond to a false fire alarm. Getting hit in the face by an exploding tire. Falling off a ladder. Quadripelgia, blindness, death. All happen at work. Even in the safest of jobs. Teachers get assaulted and raped. Secretaries fall off faulty chairs and break their necks.
This past week the legislature again bowed to the pressure of business and insurance and passed SB903. Just to show how brazen they can get, they removed the word "reasonable" from the workers' compensation law. That was this years "reform". Unless a miracle happens our wonderful, kindhearted, bipartisan, Senate seat seeking governor, Charlie Crist, will sign this bill to insure he gets big contributions to his statewide campaign from Big Business and the Insurance lobby. How can he resist? Why should any of us care? It won't happen to me? WIll it? Well it sure as heck will happen to some of you. You'll get killed and your wife and three kids will be denied the minimal death benefits provided by the workers' compensation act. Up to $7,500.00 for burial and a total of $150,000.00 payable to all dependents over aperiod of time. At this years maximum compensation rate, that period of time is less than 4 years. That's it. Nothing more. And you can't sue the employer even if the grossest of employer negligence caused the death. Death from on the job injuries happened to over 400 Florida families just last year. Yes, it can happen to you and me. And the worst part is the Insurance carriers deny payment of these workers' compensation claims more than ever according to a report just released by the Division of Workers' Compensation, part of the Department of Financial Services.
So what if it does happen to you and the carrier denies your claim for medical care? For weekly indemnity benefits while you recuperate? Or denies widows and orphans benefits? You get a lawyer to fight for your rights? Wrong. Not if Charlie Crist signs that bill removing the word 'reasonable' from the law.
The part of the law that contains the word 'reasonable' is the part that requires the insurance carriers to pay your lawyer's fee when your lawyer is successful in obtaining benefits for you that were denied. Up until this session of the legislature, that lawyer was entitled to a 'reasonable' fee, set by a Judge, depending upon the benefits obtained for the client or the amount of work involved in defeating the insurance carrier. Once the word 'reasonable' is removed, the only fee a lawyer for in injured worker or the heirs of a decesed worker can be paid is tied to a formula set by...the legislature! Here's how it works: You are a teacher. First year on the job. May 2010 rolls around and you are asked to unload boxes of books from a cart and carry them to a storage area. It's over 90 degrees. While doing so you collapse and die. The school board's insurance servicing company denies that your death is related to your job and refuses to pay your funeral expenses or death benefits to your wife and 3 kids. You seek out legal help. Since death benefits are 'capped' at $150,000.00 plus $7,500.00 for funeral expenses, the lawyer who takes your case knows that the bill Charlie Crist is about to sign will 'cap' your lawyers fee, payable by the school board if you win the case, at $16,500.00 pursuant to the fee schedule that must be used. The school board's lawyers can earn as big a fee as they can charge for the hours put in defending your claim. They can run legal circles around your lawyer and paper him to death. They can delay and delay and in the end make it so unprofitable to represent the interest of the widow and the children, that that lawyer won't even take your case to begin with. The liklihood that you can handle the claim yourself in nil. You get nothing.
But if Charlie Crist vetoes SB2703, all injured workers and their dependents whose benefits are unlawfully, unreasonably or just plain mistakenly denied, will be able to get legal representation. The parties will still not be on an even footing since the insurance industry has far more resources to fight claims than contingent workers' compensation lawyers have to prosecute those claims, but at least the worker's lawyer konws that if he gets into a big battle over a small amount of benefits, he will get a 'reasonable' fee for his efforts.
Repealing the word 'reasonable' does just what big business and insurance want it to do, make fees for injured workers lawyers 'unreasonably' low in the vast majority of the claims. If there is no one to fight for the rights of injured workers or their families, will workers' compensation benefits get better and easier to obtain? Will insurance carriers deny fewer claims? Will they become the beneficent payers of all legitimate claims? As Sarah Palin might say: "You betcha" (they won't).
The famous phrase, oft quoted from Shakespeare, "Let's kill all the lawyers" was meant to describe how it would be possible for those in power to take away the rights of those being opressed. Make sure they couldn't get lawyers. Modern Shakespeare has played out in Tallahassee these past 9 weeks. Take way the lawyers from those injured at work but allow the insurance companies to have all the lawyers they want and pay them whatever they want to defeat claims. Seems fair only if you are Big Business or Insurance.
Almost 100 years ago in this country, almost 75 years ago in Florida, the right to sue one's employer for negligence and have a jury render a judgment, was taken away using the police power of the State. The replacement of the constitutional right to access to the courts was the workers' compensation scheme. It was supposed to be a fast, sure and adequate benefit replacement. It is neither fast, nor sure, nor adequate. It hasn't been so since the Report of the National Commission on State Workers' Compensation Laws said so in unanimous agreement in 1972. That's right...1972. And that's right...Unanimous. The commisison was set up by the 1970 OSHA law pushed by then President Nixon. That's right...Nixon, a Republican.
So maybe it won't happen to you. Or maybe it will. Why take the chance? Get involved now before you have to try to get a lawyer to represent you. Tell Governor Crist to veto SB2703. Tell him to leave the word 'reasonable' in the workers' compensation law and not make the workers' compensaiton scheme any more unreasonable than it already is.
Mark Zientz
www.mzlaw.com
Monday, April 20, 2009
THE FLORIDA LEGISLATURE AT WORK
For roughly 2 months each Spring the Florida House and the Florida Senate meet in Tallahassee to take care of the business of the State. They must pass a balanced budget. It doesn't actually have to be balanced. If they don't get it right, they come back again and again to raise more money or cut more state spending so that at the end of the fiscal year, it comes out right.
This year was especially hard, what with the economy tanking and the governor's pact with the Seminole Vegas Indians thrown out by Florida Supreme Court. One part of the budget fix is cutting the pay of employees of the Division of Workers' Compensation, the Judges of Compensaiton Claims and their Mediators. These specific cuts do nothing to help the budget crisis because the money used to pay the costs of running the workers' compensation system comes from a trust fund that contains only money from employers and compensation carriers. There is no tax money in the Administrative Trust Fund. Are our Judges who are grossly underpaid for the amount of work they do supposed to suffer pay cuts in sympathy with other employees of the state? If so, that is no reason to give insurance carriers and large self insured employers a break on their contributions to the fund. Apparently none of the legislators understand this issue, or don't care if they cut costs for insurance carriers and big employers.
Another area that the legislature is making a top priority (according to the House Speaker) is removing the word "reasonable" as it describes claimant attorney fees in the workers' compensation law. By removing the word "reasonable" the legislature hopes to firmly install a fee schedule for the claimant's lawyers that was overturned by the Florida Supreme Court in 2008. By removing the word "reasonable" the law will require a fee be allowed for an injured worker's lawyer that cannot be reviewed by any judge. Not a JCC, not a circuit court judge and not an appellate or Supreme Court justice. The legislaure will have taken over the regulation of lawyers in this one field of practice. The fees allowed can be as unreasonable as the one that caused the court to strike down the first attempt by the legislature to mandate a mathematical fee which is not in any way calcualted using traditional methods of attorney fee determinations. It ignores the hours spent in the work and the skill and experience of the practitioner. It also ignores the amount spent to defend the claim and the number of hours and fee charged by opposing counsel, who lost the case. Claimant's attorneys only get paid when they win. Defense attorney's get paid for every case they handle, win or lose.
Apparently the Republican dominated legislature, with few exceptions, doesn't care if it passes and sends to the Governor another law that will be thrown out by the courts. The time it takes to get a court decision (five years for the last one) will allow insurance companies to make excessive profits for a few more years and prevent injured workers from getting legal representaiton for all but the biggest cases with the most benefits. If a workers' compesation claimant's lawyer obtains $100,000.00 in benefits (the rare case) after litigating successfully against the insurance carrier with unlimited funds for defense, the fee will be set at $10,750.00.
The defense attorney can be paid whatever the carrier agrees to pay. In the 2007/2008 calendar year defense attorney's made almost 100 million dollars more than claimant's lawyers!
More after the session ends.
This year was especially hard, what with the economy tanking and the governor's pact with the Seminole Vegas Indians thrown out by Florida Supreme Court. One part of the budget fix is cutting the pay of employees of the Division of Workers' Compensation, the Judges of Compensaiton Claims and their Mediators. These specific cuts do nothing to help the budget crisis because the money used to pay the costs of running the workers' compensation system comes from a trust fund that contains only money from employers and compensation carriers. There is no tax money in the Administrative Trust Fund. Are our Judges who are grossly underpaid for the amount of work they do supposed to suffer pay cuts in sympathy with other employees of the state? If so, that is no reason to give insurance carriers and large self insured employers a break on their contributions to the fund. Apparently none of the legislators understand this issue, or don't care if they cut costs for insurance carriers and big employers.
Another area that the legislature is making a top priority (according to the House Speaker) is removing the word "reasonable" as it describes claimant attorney fees in the workers' compensation law. By removing the word "reasonable" the legislature hopes to firmly install a fee schedule for the claimant's lawyers that was overturned by the Florida Supreme Court in 2008. By removing the word "reasonable" the law will require a fee be allowed for an injured worker's lawyer that cannot be reviewed by any judge. Not a JCC, not a circuit court judge and not an appellate or Supreme Court justice. The legislaure will have taken over the regulation of lawyers in this one field of practice. The fees allowed can be as unreasonable as the one that caused the court to strike down the first attempt by the legislature to mandate a mathematical fee which is not in any way calcualted using traditional methods of attorney fee determinations. It ignores the hours spent in the work and the skill and experience of the practitioner. It also ignores the amount spent to defend the claim and the number of hours and fee charged by opposing counsel, who lost the case. Claimant's attorneys only get paid when they win. Defense attorney's get paid for every case they handle, win or lose.
Apparently the Republican dominated legislature, with few exceptions, doesn't care if it passes and sends to the Governor another law that will be thrown out by the courts. The time it takes to get a court decision (five years for the last one) will allow insurance companies to make excessive profits for a few more years and prevent injured workers from getting legal representaiton for all but the biggest cases with the most benefits. If a workers' compesation claimant's lawyer obtains $100,000.00 in benefits (the rare case) after litigating successfully against the insurance carrier with unlimited funds for defense, the fee will be set at $10,750.00.
The defense attorney can be paid whatever the carrier agrees to pay. In the 2007/2008 calendar year defense attorney's made almost 100 million dollars more than claimant's lawyers!
More after the session ends.
Wednesday, March 4, 2009
Suitable Gainful Employment
Suitable gainful employment. Does an injured worker have to look for and/or accept unsuitable gainful employment? That question was almost answered in a recent decision of the First DCA in a workers' compensation appeal. I hope the court will clarify the opinion published (but not yet final as this Blog is published) in Advanced Masonry Systems v. Molina , 34 Fla. L. Weekly D405. Molina's appellate counsel has promised to ask for rehearing or clarification.
It seems Molina, a mason, fell and injured his back in 2001. He underwent 2 unsuccessful back surgeries, one to fuse his spine and implant metallic hardware and the second to remove the hardware. The second surgery worsened his conditon. He claimed Permanent Total Disability (PTD) benefits in 2006. He can no longer be a mason.
The Employer/Carrier (E/C) agreed Molina had a "catastrophic injury" but denied PTD based upon an allegation in defense of the claim that Molina retained a substantial earning capacity, voluntarily limited his income and "refused suitable employment". The JCC ruled in favor of Molina but the appellate court reversed. The main reason for reversal is contained in the last sentence of the opinion which reads, "Claimant is barred from receiving benefits until he accepts suitable employment or a JCC finds his refusal is justified. See s.440.15(7)Fla. Stat. (2001)".
The facts also revealed that Molina declined to work for less than $18.50 per hour and in fact turned down a position paying $8.00 per hour. Molina was making approx. $18.50 per hour when injured.
During the Wage Loss era in the 1980's the defense to a wage loss claim usually included an 'expert' witness who would testify to the availability of work for an injured worker that paid minimum wage flipping burgers. The injured worker was likely a schoolteacher, or a flight attendant, or a highly paid tradesman. Opinions written in those cases usually described those minimum wage jobs a 'demeaning' and not 'appropriate'. In fact, they were not suitable.
In the area of vocaitonal rehabilitation the Division of Vocational Rehabilitation (DVR) (now part of the Department of Education) is charged with the responsibility for retraining injured workers. The DVR is only allowed to use the funds available to train injured workers for positions which are suitable. s. 440.091 (1)(h) defines "Suitable Gainful Employment" as employment which is not only within the physical restrictions and limitations related to the industrial accident but which will as nearly as possible and as quickly as possible return the injured worker to the workers pre injury wages.
Molina's refusal of an $8.00 per hour job was justified as a matter of law, because the pay rate was so far below his pre injury wage that it could not satisfy the suitability requirement of the statute.
I always wonder why judges are not able to put themselves in the shoes of the victims. Yet they too are covered by the workers compensation act. How would they feel being disqualified from PTD benefits if they couldn't be judges due to the injury, and a job as a janitor was considered suitable post injury employment. The skilled mason is told he can't qualify for benefits which are calculated at 2/3 his average weekly wage (AWW) because he didn't accept a job paying less than 1/2 his AWW. Since the right to compensation for loss of wage earning capacity in 2001 only applied to injured workers with more than a 20% impairment (and after 10/1/2003 there is no compensation at all for permanent partial disability), why should injured workers be denied PTD for not accepting unsuitable jobs paying taxable wages less than even their untaxed copmensation rate? Maybe the court will elighten us in a revised opinion in Molina when it is brought to their attention on rehearing that they might have overlooked the definition of "Suitable Gainful Employment" in chapter 440.
It seems Molina, a mason, fell and injured his back in 2001. He underwent 2 unsuccessful back surgeries, one to fuse his spine and implant metallic hardware and the second to remove the hardware. The second surgery worsened his conditon. He claimed Permanent Total Disability (PTD) benefits in 2006. He can no longer be a mason.
The Employer/Carrier (E/C) agreed Molina had a "catastrophic injury" but denied PTD based upon an allegation in defense of the claim that Molina retained a substantial earning capacity, voluntarily limited his income and "refused suitable employment". The JCC ruled in favor of Molina but the appellate court reversed. The main reason for reversal is contained in the last sentence of the opinion which reads, "Claimant is barred from receiving benefits until he accepts suitable employment or a JCC finds his refusal is justified. See s.440.15(7)Fla. Stat. (2001)".
The facts also revealed that Molina declined to work for less than $18.50 per hour and in fact turned down a position paying $8.00 per hour. Molina was making approx. $18.50 per hour when injured.
During the Wage Loss era in the 1980's the defense to a wage loss claim usually included an 'expert' witness who would testify to the availability of work for an injured worker that paid minimum wage flipping burgers. The injured worker was likely a schoolteacher, or a flight attendant, or a highly paid tradesman. Opinions written in those cases usually described those minimum wage jobs a 'demeaning' and not 'appropriate'. In fact, they were not suitable.
In the area of vocaitonal rehabilitation the Division of Vocational Rehabilitation (DVR) (now part of the Department of Education) is charged with the responsibility for retraining injured workers. The DVR is only allowed to use the funds available to train injured workers for positions which are suitable. s. 440.091 (1)(h) defines "Suitable Gainful Employment" as employment which is not only within the physical restrictions and limitations related to the industrial accident but which will as nearly as possible and as quickly as possible return the injured worker to the workers pre injury wages.
Molina's refusal of an $8.00 per hour job was justified as a matter of law, because the pay rate was so far below his pre injury wage that it could not satisfy the suitability requirement of the statute.
I always wonder why judges are not able to put themselves in the shoes of the victims. Yet they too are covered by the workers compensation act. How would they feel being disqualified from PTD benefits if they couldn't be judges due to the injury, and a job as a janitor was considered suitable post injury employment. The skilled mason is told he can't qualify for benefits which are calculated at 2/3 his average weekly wage (AWW) because he didn't accept a job paying less than 1/2 his AWW. Since the right to compensation for loss of wage earning capacity in 2001 only applied to injured workers with more than a 20% impairment (and after 10/1/2003 there is no compensation at all for permanent partial disability), why should injured workers be denied PTD for not accepting unsuitable jobs paying taxable wages less than even their untaxed copmensation rate? Maybe the court will elighten us in a revised opinion in Molina when it is brought to their attention on rehearing that they might have overlooked the definition of "Suitable Gainful Employment" in chapter 440.
POST TRAUMATIC STRESS DISORDER
Post Traumatic Stress Disorder (PTSD) is epidemic among returning GI's from Afghanistan and Iraq. PTSD has been around since the Civil War. After WW I it was called "Shell Shocked". It was noted after WWII as "Battle Fatigue". The Korean War and The Vietnam War produced more victims. Even after Desert Storm soldiers were treated for it. Now the wars in Iraq and Afghanistan bring the subject of PTSD to the front pages of newspapers on a daily basis and the VA is having trouble treating PTSD and compensating our warriors for it.
But, no matter how horrific the mental trauma at work in Florida, without a real physical injury as a basis for PTSD, there is no compensation or medical care for it. Same in Minnesota. I tried as best I could a few years back to prove to a Judge of Compensation Claims (JCC) that PTSD was not only a mental injury but in fact, a true physical injury to the brain itself. Scientific proof exists that when a person is exposed to a life threatening event, even without physical injury, the body creates very strong chemicals which circulate in the brain. These chemicals are designed to trigger the "fight or flight" mechanism that helps protect us. In addition, the chemicals destroy brain cells in a specific portion of the brain which can show a decrese in size on sophisticated MRI scans.
I was unable to do for my client what Mark Rogers, Mike Garbo and Yuri Jekelov did for their client. They successfully proved that PTSD is a symptom of a physical injury to the brain.
Math Teacher Missy Dodds was present when a gunman entered her classroom at Red Lake High School in Bemidji, Minn. and killed several students and a teacher before aiming the gun at Missy. The gun was out of ammunition so it didn't fire. Later the gunman killed himself. Missy was left with PTSD but no real physical injury to her as the cause. The cause was evident. It took years of work, many thousands of dollars in attorney time and costs, but the Rogers law firm prevailed after a 6 day trial.
Workers' Compensation Judge Gary Mesna ruled the PTSD compensable without accompanying physical injury by finding the PTSD was in and of itself, a physical injury to the brain.
Kudos to the Rogers firm for taking the risk for Missy, and in a sense, for all work related PTSD claimants.
But, no matter how horrific the mental trauma at work in Florida, without a real physical injury as a basis for PTSD, there is no compensation or medical care for it. Same in Minnesota. I tried as best I could a few years back to prove to a Judge of Compensation Claims (JCC) that PTSD was not only a mental injury but in fact, a true physical injury to the brain itself. Scientific proof exists that when a person is exposed to a life threatening event, even without physical injury, the body creates very strong chemicals which circulate in the brain. These chemicals are designed to trigger the "fight or flight" mechanism that helps protect us. In addition, the chemicals destroy brain cells in a specific portion of the brain which can show a decrese in size on sophisticated MRI scans.
I was unable to do for my client what Mark Rogers, Mike Garbo and Yuri Jekelov did for their client. They successfully proved that PTSD is a symptom of a physical injury to the brain.
Math Teacher Missy Dodds was present when a gunman entered her classroom at Red Lake High School in Bemidji, Minn. and killed several students and a teacher before aiming the gun at Missy. The gun was out of ammunition so it didn't fire. Later the gunman killed himself. Missy was left with PTSD but no real physical injury to her as the cause. The cause was evident. It took years of work, many thousands of dollars in attorney time and costs, but the Rogers law firm prevailed after a 6 day trial.
Workers' Compensation Judge Gary Mesna ruled the PTSD compensable without accompanying physical injury by finding the PTSD was in and of itself, a physical injury to the brain.
Kudos to the Rogers firm for taking the risk for Missy, and in a sense, for all work related PTSD claimants.
Monday, March 2, 2009
WHERE ARE THE COPS, PART II
I have heard that some cops are lurking outside the offices of defense counsel while claimant depositions take place inside. They are there at the behest of the employer/carrier to effectuate an arrest of the claimant at the conclusion of the proceeding, for being in the country illegally. But maybe a recent decision will have the cops lurking outside defense counsels offices for another reason.
The first DCA, in a written opinion issued February 19, 2009 described a situation in which a claimant's lawyer tried to obtain a ruling from the JCC that required the JCC to approve the defense firms fees. The effort failed at the trial level and failed again on appeal. The DCA could have used the dreaded "PCA" and nothing more would have happened. The opinion in Altstatt v. Florida Department of Agriculture, instructs us that no fee paid in connection with a workers'compensation matter has to be approved by the JCC pursuant to 440.105(3)(c)(2008). Rather the section "merely makes it unlawful to receive a fee unless that fee has been approved".
I guess the court, by refusing to rule on whether the legislatures intent was to have attorneys representing the employers, carriers and servicing agents have their fees approved, have decided to leave that up to the criminal courts. So the next time you see the cops lurking outside a defense firms offices, it may not be to arrest the claimant.
The first DCA, in a written opinion issued February 19, 2009 described a situation in which a claimant's lawyer tried to obtain a ruling from the JCC that required the JCC to approve the defense firms fees. The effort failed at the trial level and failed again on appeal. The DCA could have used the dreaded "PCA" and nothing more would have happened. The opinion in Altstatt v. Florida Department of Agriculture, instructs us that no fee paid in connection with a workers'compensation matter has to be approved by the JCC pursuant to 440.105(3)(c)(2008). Rather the section "merely makes it unlawful to receive a fee unless that fee has been approved".
I guess the court, by refusing to rule on whether the legislatures intent was to have attorneys representing the employers, carriers and servicing agents have their fees approved, have decided to leave that up to the criminal courts. So the next time you see the cops lurking outside a defense firms offices, it may not be to arrest the claimant.
Saturday, February 28, 2009
MISSOURI OPENS THE DOOR TO PART II SUITS
The workers' compensation and employer liability policy (Parts I and II) is the name of the insurance contract sold to employers. Part I provides all the benefits required by the law of the state that has jurisdiction over the on the job injury. Part II of the policy covers liability lawsuits filed against the employer by the employee for an injury or disease the occurs in the course and scope of the employment but is not covered by part I of the policy and for which the esclusive remedy does not protect the employer from tort suits. Part I has no dollar limit on the benefits. Part II is sold with coverage limits.
In 1990 the Florida Supeme Court in Scanlan v. Martinez signaled the end of the exclusive remedy that is workers' compensation by opening the door a crack to tort suits against employers for on the job injuries. It seems that Florida's 1990amendments to the workers' compensation act making certain types of injuries 'non-compensable' were 'constitutional'. The court rejected a constitutional challenge by stating that if prior to the ammendments an accident or injury was compensable and by reason of the amendments was no longer so, there still remained the common law tort remedy.
More recently, in Smothers v. Gresham Transfer the Oregon Supreme Court held Oregon's 'Major Contributing Cause' defense to be constitutional but when raised by the Empoyer/Carrier, left the injured worker with the right to take his case to a court of general jurisdiction instead of through the workers' compensation morass. Later legislative changes in Oregon have diminished but not eliminated this election of remedy.
Now Missouri has joined the club. This week the Missouri Supreme Court ruled on a constitutional challenge brought by scores of labor unions against amendments to the workers' compensation act. The ruling, like that in Florida and Oregon, left the workers' compensation law in tact (although Missouri sidestepped the issue by holding the suit was premature, there being no injured worker victim in the group of plaintiffs). But the court was very clear to point out in the resolution of one count of the complaint, that injured workers whose accidents are no longer 'covered' by the act by reason of the amendments in 2005 may enforce their rights via the tort remedy. Welcome to the fold Missouri. The dissent is worth reading for examples of the types of claims that will now shift to the common law remedy and avoid the exclusive remedy of workers' compensation.Missouri's new "definition of accident" is a real trip. Kudos to the humble justices of the Missouri Supreme Court for the very public published apology for failing to rule in a timely fashion. To my knowledge, such an apology is not only unprecedented, but serves to overcome the perception that the Justices operate out of an ivory tower and are aloof to the real world need for justice to be not only fair but prompt.
I suspect that National Council of Compensation Insurers (NCCI of Boca Raton, Florida) will be keeping it's actuaries up late burning the midnight oil to come up with a statistical reason for insurers in Missouri to raise rates on Part II premiums (employer liability) while reducing Part I premiums to a lesser extent to leave a net increase instead of decrease. NCCI will likely blame the adverse affect on premiums than what was expected or predicted by the 2005 Missouri reforms on activist justices, unions and claimant's lawyers. They should realize what a bargain even high workers' compensation premiums are compared to liability insurance costs to cover what are usually unsafe workplaces.
Most state constitutions guarantee that there will be no right without a remedy. If workers' compensation as a substitute for tort remedy becomes no remedy at all, or an unreasonable substitute, employers can expect to be back before juries who can award large verdicts and punitive damages. Part II premiums will skyrocket. Employers will learn in the coming years that you can't have your immunity and pay nothing in workers compensation too.
In 1990 the Florida Supeme Court in Scanlan v. Martinez signaled the end of the exclusive remedy that is workers' compensation by opening the door a crack to tort suits against employers for on the job injuries. It seems that Florida's 1990amendments to the workers' compensation act making certain types of injuries 'non-compensable' were 'constitutional'. The court rejected a constitutional challenge by stating that if prior to the ammendments an accident or injury was compensable and by reason of the amendments was no longer so, there still remained the common law tort remedy.
More recently, in Smothers v. Gresham Transfer the Oregon Supreme Court held Oregon's 'Major Contributing Cause' defense to be constitutional but when raised by the Empoyer/Carrier, left the injured worker with the right to take his case to a court of general jurisdiction instead of through the workers' compensation morass. Later legislative changes in Oregon have diminished but not eliminated this election of remedy.
Now Missouri has joined the club. This week the Missouri Supreme Court ruled on a constitutional challenge brought by scores of labor unions against amendments to the workers' compensation act. The ruling, like that in Florida and Oregon, left the workers' compensation law in tact (although Missouri sidestepped the issue by holding the suit was premature, there being no injured worker victim in the group of plaintiffs). But the court was very clear to point out in the resolution of one count of the complaint, that injured workers whose accidents are no longer 'covered' by the act by reason of the amendments in 2005 may enforce their rights via the tort remedy. Welcome to the fold Missouri. The dissent is worth reading for examples of the types of claims that will now shift to the common law remedy and avoid the exclusive remedy of workers' compensation.Missouri's new "definition of accident" is a real trip. Kudos to the humble justices of the Missouri Supreme Court for the very public published apology for failing to rule in a timely fashion. To my knowledge, such an apology is not only unprecedented, but serves to overcome the perception that the Justices operate out of an ivory tower and are aloof to the real world need for justice to be not only fair but prompt.
I suspect that National Council of Compensation Insurers (NCCI of Boca Raton, Florida) will be keeping it's actuaries up late burning the midnight oil to come up with a statistical reason for insurers in Missouri to raise rates on Part II premiums (employer liability) while reducing Part I premiums to a lesser extent to leave a net increase instead of decrease. NCCI will likely blame the adverse affect on premiums than what was expected or predicted by the 2005 Missouri reforms on activist justices, unions and claimant's lawyers. They should realize what a bargain even high workers' compensation premiums are compared to liability insurance costs to cover what are usually unsafe workplaces.
Most state constitutions guarantee that there will be no right without a remedy. If workers' compensation as a substitute for tort remedy becomes no remedy at all, or an unreasonable substitute, employers can expect to be back before juries who can award large verdicts and punitive damages. Part II premiums will skyrocket. Employers will learn in the coming years that you can't have your immunity and pay nothing in workers compensation too.
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