Zientz ReMarks

THE COST OF DENYING A PFB

2010-07-07T19:38:00.000-07:00

This past Tuesday, July 6, 2010, was a significant day for the rights of injured workers and a blow to the entities that lobbied for more benefit cuts and the creation of an atmosphere that fosters the denial of claims without adequate investigation and without regard for the consequensces.

In the case of Wendy Larson v. Kraft Foods, circuit court Miami-Dade Co. Senior Judge Michael Genden, the Kraft folks paid over 2 million dollars for a general release of all claims from their employee plaintiff. All medical liens for approx.$250,000.00 in care provided by the group insurer were also waived. In addition, Plaintiff collected 6 months of Short Term disability benefits.

Had plaintiff's workers' compensation claim been investigated, the claim might have been accepted based upon repetitive trauma causing a cervical disk and bi-lateral thoracic outlet syndrome. Medical would have been less costly and the comp case for settlement purposes would have been worth 300k or less. There would have been a SSDI offset. The employer and carrier preferred to initially shift the cost to the STD carrier and the group carrier whose premiums had already been paid raither than accept the cost as WC and pay off the bottom line. The Employer likely was self insured for WC or had a large deductable. So WC benefits would come off the net profits.

So when the Notice of Denial came in asserting that the accident did not arise out of the employment, I dismissed the PFB I had filed and sued in circuit court alleging ordinary negligence and failure of the master to fulfill the obligations of the master to the servant.

The bottom line became over 2 million dollars poorer when Kraft upped the offer just before jury selection was to begin. A lot of credit should go to Attorneys Mark Poses and Jeffrey Hirsh, my co-counsel. They prepared a magnificent case for trial.

Bad Beats in Comp

2010-06-24T18:56:00.000-07:00

By most accounts this was a good week. Injured workers won two but also lost two. On the losing side were the injured worker who had pre-existing cervical and lumbar arthritis that was non-symtomatic even though he worked at a heavy physical job. After his lifting incident he developed disabling symptoms which his doctors attributed to his arthritis and not his 'accident'. Major Contributing Cause did him in compwise. If only there had been some negligence on the part of his employer I would have sued under part II.
The other loss was in a case that stands for the proposition that the employer who hires an undocumented worker gets off the hook for indemnity if the employee doesn't file tax returns even if the E/C isn't interested in defending on that basis and stipulates to the AWW. The JCC can do it for the defense, after the evidence closes and without notice or opportunity to be heard. No opportunity to get the case to the Supreme Court. En Banc denied, certified question denied. Due process---DENIED.
But on the brighter side the ineptness, bad faith, and mean spirited claims handling of the Div of Risk Mgt was exposed in Gauthier v.. FIU. Lets hope the CFO reads it and makes some neeeded changes in the Div of Risk Mgt. The philosophy of providing injured state employees with the lowest level of care and the least amount of benefits and of questioning every claim as if the injured worker was a criminal instead of a valued employee has to stop. The opinion didn't mention that the adjuster refused to reimburse the employee for prescription glasses broken in the accident unless the unrepresented (at that time) claimant could 'prove' the glasses were broken in the accident. And advised the injured worker that she would not be reimbursed for mileage to the pharmacy when that is opposite what the law says. That is in addition to knowing the injured worker had a permanent injury but making little or no attempt to get MMI and a rating and paying the IB's due before the SOL ran. 'Gotcha' techniques, as Judge Alan Schwartz (3 DCA senior judge) would say.
The last matter was the Bifulco case out of the Florida Supreme Court today. As Amicus for FWA we established that the law in Florida is that if you sue a government entity for a cause of action arising out of ch.440, the immunity granted to the government, pre suit notices etc. are not applicable since the government has to be treated as any other employer. The underlying claim was under 440.205- wrongful termination.

REASONABLE: STILL THERE, YOU JUST CAN'T SEE IT

2009-06-30T18:31:00.000-07:00

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.

My Letter to the Herald: Gov. Crist, Veto Comp Bill

2009-05-10T10:54:00.000-07:00

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

THE FLORIDA LEGISLATURE AT WORK

2009-04-20T19:14:00.000-07:00

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.

Suitable Gainful Employment

2009-03-04T18:29:00.000-08:00

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.

POST TRAUMATIC STRESS DISORDER

2009-03-04T17:59:00.000-08:00

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.

WHERE ARE THE COPS, PART II

2009-03-02T18:33:00.000-08:00

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.

MISSOURI OPENS THE DOOR TO PART II SUITS

2009-02-28T07:01:00.000-08:00

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.

I HOPE THE LEGISLATURE DOESN'T READ THIS

2009-02-24T17:42:00.000-08:00

In January a three judge panel of the First District Court of Appeal (1DCA) made an historic first (no pun intended) appearance in Miami-Dade County to hear oral arguments in a number of workers' compensation cases. All appeals of workers' compensation orders of Judges of Compensation Claims (JCC's) go to the 1 DCA based in Tallahassee, Florida, according to the appeal provisions of the compensation statute (the Act). This process was adopted to reduce the possibility that there would be any conflict between decisions of the various DCA's. No conflict, rare review by the Supreme Court. Since the 1 DCA often uses a process called "PCA Affirmed" to render it's decisions, those too are not reviewable by the Supreme Court. Workers' Compensation litigants are second class citizens (claimant's, employer's and carrier's alike) when it comes to available Art. V court review.
The January oral arguments did produce a full written opinion that is sure to spur legislative concern and activity to prevent any possible recurrance of this liberal interpretation of the Act.
Pamela Mullins had a dispute with her employer, 7-Eleven. Ms. Mullins, without question had an injury at work arising out of her employment and in the course and scope of her employment with 7-Eleven. The compensation servicing agent Sedgwick CMS, refused to pay for a plastic surgeon to replace Mullins' ruptured cosmetic right breast implant. Under the present statute the JCC had to make two findings based upon the evidence. 1- Was the accident the major contributing cause (MCC) of the partial rupture of a 'prosthetic device'? and 2. Should the medical benefits be apportioned so that Mullins would only get Employer payment for part of the treatment needed to repair or replace the damaged implant?
The JCC awarded Mullins payment for only 25% of the expenses associated with the treatment needed. Mullins appealed. The medical evidence showed that the aged implant had lost 75% of its usefullness before the accident took place. The JCC's award ordered 7-Eleven to pay ony 25% of the cost of treatment. Who would have paid the balance, if Mullins did not have the resources to do so was not considered. If she had no money, she would not have had the medical care she needed.
The appellate opinion did not focus on the problems that will be caused by the medical apportionment language in s. 440.15(b) since 2003. The decision of the 1 DCA reversed the award of the JCC and held that Mullins was entitled to 100% of the cost of medical care for the damaged implant. The court reasoned that the apportionment language applied only to injury to a claimant who has a preexisting condition, not to a prosthetic device that has depreciated. Good for Mullins. Bad for Employers and Carriers.
I fully expect a 'Mullins' fix to be proposed this session when the legislature takes up workers' compensation. The legislature is expected to try to fix the percieved problem caused by the Supreme Court's decision in the Emma Murray case. The lawmakers will likely remove the word 'reasonable' from the attorney fee provision and add the word 'prosthetic' to the apportionment language.
The result will be a lopsided Mullins who will not be able to get an attorney to represent her interests in the future.

WHERE ARE THE COPS?

2008-11-19T18:29:00.000-08:00

I find it somewhat curious that decisions are published by the First District Court of Appeal and the Judges of Compensation Claims documenting illegal activity by employers and no one in law enforcement seems to notice. In the recent past an injured worker was found to have been employed in a job where he was paid cash. Since the injured worker could not prove he reported his cash income for income tax purposes, he was deemed to have an average weekly wage of "0" and therefore not entitled to any indemnity benefits. The injured worker paid the price for being here illegally and being unlucky by having an accident. What about the employer?
It is unlawful to employ illegals. It is unlawful to fail to pay withholding and social security. It is premium fraud to fail to list payroll for unemployment purposes and send the report to the carrier quarterly. But did the state attorney, the police, the IRS or the U.S.Attorney notice? I don't think so.
It is the employer who has the upper hand. You want to work? You want to get paid? We pay in cash. You got a problem with that?
The workers' compensation statute says that the employee is responsable for reporting tips to the employer. The statute is silent about who is supposed to report income. The tax laws require the employer to report withholding each payday. The employer has to prepare a W-2 annually and file it with the IRS and send a copy to the employee. The employee is supposed to file a tax return if he or she has more than the minimum required income. Yet the employee who gets injured is punished by having a "0" average weekly wage if the employer is the initial bad guy and the powerless employee goes along. The bad guys win.
And where are the cops?

A TIME FOR ACTION

2008-11-07T10:01:00.000-08:00

Only three days ago it was only possible that there would be a Democrat in the White House, a majority in the House and a near filibuster proof majority of Democrats in the Senate. Today 2 out of three have come to fruition and the third is still up in the air- Go Franken!
What does this mean to the injured worker community? Nothing if you sit back and do nothing. Today, tomorrow and for the next four years, it is time for action.
I may have mentioned in this Blog the National Commission on State Workers' Compensation Laws which was created in the 1970 OSHA legislation passed and signed into law by Richard Nixon. The commission had over 50 members from all walks of life-- educators, union representatives, insurance executives, employers from large companies, etc. The commission reported to the president that they had reached unanimous conclusions-- that state workers' compensation laws were unfair and inadequate and that something must be done.
Following the publication of the report a Bill entitled The Federal Minimum Standards for State Workers' Compensation Laws was introduced in the U.S.Senate. The Bill became known as the Williams/Javits Act. Sen. Jacob Javits was one of the sponsors. Hearings were held at which testimony was taken. The attorney generals from most of the states got together and promised Congress that if left alone and not subjected to Federal minimum standards, they would do better in providing for injured workers and their families. The promise worked. The bill, SB 2008, did not pass.
Many of the states kept their promise. In Florida, for example, the 1974 Papy package of amendments to the workers' compensation law became effective October 1, 1974. It was a great leap forward for a state that had a $66.00 maximum weekly compensation benefit in 1972 to reach $112.00 in January 1976.
The promise was short lived. Nixon got into some trouble over a place called Watergate. The nation was involved in a very unpopular war in the far east, and the "Federal Threat" went away. The states took this as a signal to return to their own selfish ways with a vengence. Again, in Florida, every set of amendments introduced and passed by our Tallahassee gang of employer and insurance controlled legislators from 1978 to 2003 was intended to reduce benefits to injured workers and make it as hard as possible to navigate the adjudicatory system. Just imagine in a state that has grown as fast as Florida since 1978, that today we have the same number of compensation judges as in 1978! Actually we are authorized to have one additional judge, but that vacancy is not yet filled. In 2003, Jeb Bush led the Republican controlled legislature to pass the most Draconian compensation law in the nation. Currently injured workers no longer have any benefit for permanent partial disability. After reaching maximum medical improvement they get a few weeks of reduced weekly benefits for their physical impairment and nothing more unless they qualify for permanent total disability which is very nearly impossible in most cases.
So now is the time to act. The time to let all those democratic representatives and senators and the new president know how you feel about this situation. Let them know that you want them to resurrect the minimum standards legislation and pass it in this session. The states have been using workers' compensation laws as economic weapons against each other since the 1970's to attract new industry to their states by having cheaper workers' compensation costs than the other states. They are fighting this war on the backs of injured workers and that must stop. Injured workers are the bait used to lure business. When all states have to provide the same minimum benefits, the states can lure workers with better benefits than the Federal legislation requires.
The time for action is now. Get this issue on the front burner to be acted upon as soon as they fix the economy and get us out of Iraq.

Supreme Court Rules for Injured Workers- Emma Murray v. Mariners Health

2008-10-23T17:32:00.000-07:00

Injured workers in Florida scored a victory today after a 5 year battle with employers, insurance carriers and the Chamber of Commerce. At issue was whether or not the law as interpreted by the First District Court of Appeal over the past 3+ years really was intended to make the workers' compensation playing field even more uneven than it already was by allowing employers and carriers to pay their defense attorneys as much as they desired to defeat claims by injured workers while restricting the injured workers lawyers to minimal fees no matter how much work was required to win the day. The court was able, in a 5-0 decision, to 'reinterpret' the law as written by the Republican controlled legislature and signed by Jeb Bush, to allow Judges of Compensation Claims to award reasonable fees based upon established criteria that included the amount of benefits obtained along with many other relevant factors, like the number of hours expended. Until today, the district court had reasoned there was only one criteria, the amount of benefits obtained applied to a minimal fee schedule. The lawyer in the Murray case, Brian Sutter, ended up with a fee amounting to $8.11 per hour for the necessary 80 hours he worked to get Emma Murray the benefits she was entitled to. The Supreme Court today ruled he was entitled to $16,000.00, or approximately as much as the defense attorney in the case charged to the insurance company that was fighting the losing battle over a little over $3,000.00 in benefits.
Congratulations are in order to Mr. Sutter , the trial attorney, Bill McCabe, one of the appellate attorneys and Richard Sicking, who argued the case in the Supreme Court.
I will be quite interested to watch the fallout. Workers' Compensation insurance rates have fallen or will fall with the next rate change, 60% over the past 5 years. The word 'crisis' is already being bandied about by the Chamber of Commerce referring to the Murray case. A special session of the legislature to try to 'fix' the perceived problem is already being threatened by the insurance industry. But the question I'd like the answer to is this: Tomorrow when the newspapers are printed and delivered, will anyone in the press notice, or care? Although more workers are affected by injuries on the job and more families are placed in economic peril by an unfair law that is supposed to take care of injured workers than all the medical malpractice and all the products liability cases combined, the workers' compensation horror stories get very little attention in the mass media.
Even with today's decision that will restore of the right of a victim of an on the job accident to have an attorney represent them, benefits are so low and the provision of them is so slow, that all the lawyers in the state can't make the victim whole.
A client of mine recently took her own life while her award of permanent total disability benefits was held up pending a frivolous appeal by the insurance company. She could no longer bear the pain exist without income. And she had a lawyer. And she won her case at trial. And she won her case on appeal, posthumously. How many more have to die?

ABUSE OF THE STATUTE OF LIMITATIONS

2008-09-04T20:00:00.000-07:00

Let me tell you the story of a 19 year old college student who worked at her state school in the recreation department to supplement her income and to lessen her tuition burden. While at work an errantly thrown football hit her in her right eye, teraing her retina and blinding her in that eye. She got a few months of TTD. She returned to work at a different employer. Indemnity compensation stopped. She continued to see her doctors at Bascomb Palmer Eye Hospital for follow up to her unsuccessful retinal tear surgery. She reached a point in time 2 years after her accident but had not yet been rated. Loss of eyesight in one eye would normally provide a 24% PIR. She was never found to be at MMI. But she made a little mistake. She let 13 months go by without going back to Bascom Palmer after more than 2 years had run from her date of injury. When she showed up for her appointment one month late, she was told the adjsuter at the Division of Risk Management said,"Sorry, tough luck, the SOL has run, you are on your own". Up to this point the injured young lady had asked to be reimbursed for a pair of glasses, ignored. She had asked for reimbursement for a head brace that she had to wear early on, ignored.

I filed a PFB for her. I hoped some wiser individual would make the decision on this one. That the Division of Risk Management of the State of Florida, the one headed by the CFO, would see (no pun intended) the error of their ways. No such luck. SOL has run. No rimbursements. No more treatment. No rating (even though the "Guides" require at least a year go by after stabilization before a rating can be given).

If someone reading this knows the CFO, bring this to her attention. This is just wrong. The Division will lose this case at trial or on appeal. They did this young lady wrong. The adjuster should have arranged an appointment for a rating. A rating the adjuster knew claimant was entitled to, and the money that it represented. The adjuster should have set appointments for the follow up care less than a year from the prior appointment. The adjuster should not have denied the reimbursments that were requested and ignored. She lost her eyesight in one eye. She was 19 years old. She gets free counseling for PTSD and the fear of total blindness. Is this abuse of the SOL by the Division of Risk Management or not?

WHY DID NANCY HAVE TO DIE?

2008-09-04T19:19:00.001-07:00

Nancy worked as a manager for one of those big box stores. The fire supression system was chronically broken. If the alarm tripped falsely, in a short time the sprinker system would begin to ruin the merchandise, including over a million dollars worth of frozen items. Nancy was aware of the problem. On the day of her accident the alarm tripped, another false alarm. Nancy ran to shut off the system. To avoid the loss to her employer. She stumbled and tore her plantar fascia.

As management she sought medical care but continued to work. The workers' compensation medical scheme failed her. She got worse not better. Soon she had to use the stores handicapped carts to get around. Then she had to stop working. Chronic Regional Pain Syndrome (CRPS) had started in her leg. Pain, swelling, hot, cold, discoloration, shiny skin. Her orthopedic diagnosed CRPS. She was sent to a neurologist. Same diagnosis. She went to a pain management doctor. Same diagnosis. She sought care with an expert in CRPS. Same diagnosis. She was on drugs for the pain, for the depression that developed, for the back pain that started when she couldn't walk on both legs. He doctors recommended a spinal cord stimulator (SCS). Her CRPS had spread to her other leg. Eventually it spread to both arms.

It was about this time that her 104 weeks of temporary disability ran out. Her compensation carrier accepted her as permanently totally disabled. But the carrier denied authorizaton for the SCS. Soon thereafter Nancy was referred to the carriers Independent Medical Examiner (IME). The IME was asked, did Nancy have CRPS? Did she need a SCS? Was she at MMI? Did she have a permanent impairment rating? (PIR). The IME orthopedic, whom I shall call Dr. Whore, reported that Nancy was at MMI, that she had a plantar fascitis, recovered, and a 2% PIR. He opined she did not have CRPS and didn't need a SCS. Nancy's benefits were terminated. She had been overpaid!

It was of no consequence that Nancy's 5 other authorized doctors all diagnosed CRPS. It was of no consequence that a SCS was recommended to try to get Nancy off narcotic medications. It was of no consequence that Nancy was told not to work by her authorized neurologist and pain management doctors. Benefits andminstratively accepted could be cut off at any time.

The petition was filed to get the SCS and PTD restored. But Nancy started going down hill. The drugs, the lack of income, except for her SSDI, the depression. She lost 50 pounds. She started to use a wheechair. The carrier denied her doctor's prescription for a lightweight chair. Finally her hearing was set. The carrier asked for an EMA evaluation. Another delay. But she had her EMA evaluation. He agreed with her authorized doctors. Nancy had CRPS. He disagreed with the need for a SCS, but that was not one of the issues he was asked to review. He gave restrictions and limitations. The hearing was held. Not before the JCC assigned to the case, but before a JCC from another district who didn't know Dr. Whore. A JCC who was considered as conservative as they get. He did his own order. 40 plus pages. He considered all the negatives that were applicable to the claimant. He ruled that notwithstanding those negatives, claimant was entitled to PTD benefits. He didn't believe Dr. Whore. The issue of the SCS was not ripe for adjudicaiton at that time. Carrier appealed. Benefits continued to be withheld.

The appeal is still pending a decision. While the appeal was pending Nancy, age 53, passed away. Why did she have to die so young? More next time.

362 DIE

2008-08-25T17:34:00.000-07:00

What if 362 children went missing and were discovered dead, in just one state in one year? What if 362 dogs were discovered murdered by being pushed off a 10 story building in one state in 2007? What if 362 prisoners were found dead in their cells of exposure to poison gas, in one state, in one year?
There would be an outcry. Investigations would start. Congressional committees would convene. Police commissioners would be fired. And that is only if the dogs died. For the prisoners the ACLU would sue everyone. The NAACP would allege that there is a conspriacy because most of the prisoners were minorities. Prison guards would be tried and convicted. For the kids, you couldn't even imagine the reaction. Every kid would be issued a GPS, free.
Last year 362 people died in Florida. They weren't children, or prisoners and they weren't even given the same consideration that dogs would get. This wasn't an anomaly. 360 died in 2006 in Florida. Compared to other states, Florida death toll went up. Most states death tolls went down. In New York, 234 down to 219. Texas went up 489 to 527, but then again Texas had a Bush as governor before Florida did. Why does that matter? Because the deaths are workers killed on the job.
Governors have a responsibility to these people and their families. To protect their citizens from the employers who ignore safety in search of profits.
The governors can't ignore dead prisoners, dead children or murdered dogs. They can ignore dead workers. Under Governor Bush the State of Florida abolished the division of safety. Under President Bush, former Governor of Texas, OSHA has been told to lay off business. At best small fines for major violations. Can you even imagine a governor telling the Florida Department of Law Enforcement not to investigate prisoner deaths? Not to prosecute child killers? Not to even look into dead dogs by the gross? No way.
But kill 362 employees in 2007, don't even expect to see film at eleven.

WHERE DOES THE MONEY GO?

2008-08-20T16:33:00.000-07:00

If you want to know how much the insurance industry (including self-insureds) spends on indemnity benefits paid to claimants, that number can be obtained. If you want to know how much was spent on claimant attorney fees, that amount can be easily ascertained. But, if you want to know how much is skimmed in the guise of 'costs', tough luck. No one knows.

Unregulated costs can easily be funneled to companies owned by insurers. Unregulated costs can be paid to individuals and companies that 'kick back' to the top levels of the insurance industry. Does it happen? No one knows because no one has investigated.

Are the costs reasonable?

Consider this: The cost of transporting a claimant from his/her home to a doctor or therapy appointment can be double or triple or quadruple the fee paid to the 'regulated' doctor or therapist. The cabbie makes minimum wage. The company makes a fortune.

The medical transportation companies now include "interpretation" with the ride. More unregulated costs. The interpreter makes more per hour that the orthopedist!

Is there a requirement that carriers bid out the transportation service they use? No. Is anyone looking at the unregulated costs? No.

At the recent FWCI educational conference (Orlando, August 17-19), all of the unregulated industries were well represented. The slide show of sponsors was a real eye opener. I had no idea there were so many of these unregulated leeches.

Here's a partial list:

* Utilization review services. Sometimes they charge $30.00 to reduce a $75.00 bill to $60.00. That makes perfect sense. Unregulated.
* Peer reviews. Pay a doctor a large salary to write the words "not medically necessary" on forms. Then when a claim is filed, you can't use that doctor to testify at a hearing, so you have to hire an IME. Unregulated.
* IME doctors. One makes $500,000.00 per year just doing carrier IME's. Deposition fees are also unregulated.
* Surveillance. What a racket. They get paid for all those hours they don't see the claimant. Were they really there at all? Unregulated.
* MSA calculators. Get paid for taking a guess with no liability for being wrong. Guess high all the time and no one will ever find out. When was the last time you saw CMS reducing an MSA? Unregulated.
* Re-employment evaluators and job placement counselors. Bottom line is that these companies get paid $75.00 for each job lead they can copy off Monster.com.
* Medical case management. Another unregulated middleman to place obstacles in the way of delivery of good medical care.
* Structured settlement experts. They get unregulated fees from the carriers and commissions from the companies they use to provide annuities.
* FCE's. No more need be said.
* Fraud investigators (SIU). If they don't come up with a claimant to prosecute, they get paid anyway. Do they look for premium fraud...rarely.
* House counsel. Do they really represent the insured? Where does their profit go? Back to the carriers bottom line? I don't think so. Unregulated. Paralegals extra.

As one very bright man once said...follow the money. In Florida there is absolutely no incentive for carriers to keep costs down. They just get passed on to the employers, eventually. All a carrier has to do to get a rate increase is to spend money, even if it comes back to them.

This scheme needs grand jury oversight. Not a State grand jury, a Federal one.

My First Book Review-"Depraved Indifference"

2008-08-03T18:06:00.000-07:00

Usually a book reviewer reads a book before reviewing it. I only finished reading two chapters of "Depraved Indifference" by Patrice Woeppel (IUnverse 2008)to know that this book MUST be read by anyone who is empowered by the citizens of any state to vote on amendments to the state's workers' compensation laws, or anyone who has the power to enforce the laws that already exist. Criminal prosecutors should also read this book to learn that the crime of homicide doesn't just take place in the hood during drug deals.

"Depraved Indifference" by Patrice Woeppel (IUnverse 2008) is a well researched look at the failure of workers' compensation laws to deliver the promise of fast, sure and adequate benefits based upon a no fault approach to compensating on-the-job injury and death. The author makes the case that miniscule benefits, the ability to starve out injured workers and their families, the lack of official oversight, the lack of meaningful penalties for violations and the lack of any criminal prosecution of employers for criminal acts of "depraved indifference" to human life, make for an unsafe workplace for millions of Americans. The numbers are staggering. It is an epidemic of death and economic destruction in the American workplace, unchecked by trial by jury to bring wrongdoers to the bar of justice. If a workers' compensation type scheme was put in place 100 years ago to compensate victims of products liability, we'd still be driving Pinto's and painting our baby carriages with lead. Our schools would be insulated with asbestos and childrens PJ's would still be highly flammable.
After Chapter 2, you have to stop reading for a bit, as I did. There is no way you can to Publix Supermarkets to pick up food for dinner. You won't want to eat dinner! If you read after dinner, you will just want to throw up. Maybe you will shop at Winn Dixie when your appetite returns. Why not Publix? Read the book. The title says it all. There is just no incentive built in to the workers' compensation scheme to make the workplace safer. The author calls for the return of the jury system. I agree.
When I feel well enough to finish reading, I'll post more thoughts here. Then I'll send my copy to Governor Crist. I urge all who read this posting to read the book (in softcover, about $19.95) and pass it along to one of your elected representatives, with a short note that says, "Fix this mess, now!"

TIME FLIES

2008-06-25T10:06:00.000-07:00

I can't believe the last time I posted was April! Time does fly when you are enjoying yourself. It seems I see something new every day.

It was 5:00 AM Christmas day 2007. My client, I will call her 'Katy', was just finishing up her midnight - 8AM shift at her employer's place of business (one of those 24-hours/365-days per year establishments). She was working alone, as usual. There were only a few customers in the 'back', watching films not made for PG audiences, when a man entered the store. There was no security. The emergency security button was broken. The man robbed Katy at gunpoint, took her personal property and the employers cash receipts. He then proceeded to do to her what the customers were watching in the back room. She was raped; but not physically 'injured'. Touched; but not broken.

The man took off. Katy used one of the customers cell phones to call 911. She was taken to the county hospital (Jackson Memorial) for a rape kit and referred to a psychologist for counseling.

Katy was contacted by the compensation servicing agent for her employer. She was told that they would not refer her to a psychiatrist unless she had a personal doctor who would say she was physically injured. It is nearly 6 months later and Katy has not returned to work. She has not received any indemnity benefits and the servicing agent is taking the position that she voluntarily quit on the day of the incident. She is also now pregnant by her boyfriend, having stopped her use of birth control at the suggestion of the Rape Center (I have no idea why she was told to do this. Maybe somebody reading this can let me in on this protocol).

In their response to the recently filed Petition for Benefits, the servicing agent took the position that the event of 12/25/2007 was 'compensable' but no medical or indemnity benefits were owed. More to come as the case progresses...

Emma Murray Oral Argument

2008-04-15T17:18:00.000-07:00

It has been a very busy time since the first of the year. It culminated this past week with the oral argument in Tallahassee in the case of Emma Murray v. Mariners Health. The 7 justices were 'hot' (at least 6 of them asked multiple questions of the attorneys arguing the challenge to the Attorney Fee section of ch. 440). The law as it stands now restricts fees for claimant's lawyers to a strict fee schedule no matter how much time is expended or how much the defense spends.
Richard Sicking argued for the Petitioner (claimant) and Cheryl Wilkie and John Darin argued for the Respondent (employer/carrier). I think the court understood the arguments and the totally unequal positions of the parties in what is supposed to be a fair scheme.
Just days after the argument, Justice Cantero submitted his resignation to Governor Crist effective September 6, 2008. The thinking is that the court will decide this case before Justice Cantero leaves the bench.

Catching Up

2007-12-04T16:31:00.001-08:00

In one of my first Blogs I commented on Willis v. Gami Golden Glades Hotel. The Supreme Court had been considering this case after a Feb. 2005 oral argument. The issue was whether or not the Impact Rule should be abolished or changed in Florida. Willis was accosted, patted down and robbed on the defendant’s unsecured premises. He was not injured, but was affected emotionally. Her suit was thrown out by the Third DCA. Finally, after 2 1/2 years of study, the court ruled in a 4-3 decision that injury wasn't necessary and that even the slightest of impacts -- the pat down -- was enough to support an emotional distress claim.

Now compare that to the courts take on the same situation in a workers' compensation situation. In City of Holmes Beach v. Grace, the court not only required a physical injury for the injured police officer's psychiatric problem to be compensable, but also said the injury must be the specific cause of the psychiatric diagnosis (not just having the accident). In the case, police officer Grace accidentally killed a suspect in an arrest. He then became emotionally injured. The cause of the emotional injury was not his minor knee injury, but instead his guilt for killing the suspect. He received no workers' compensation.

If you perceive there is a double standard, you are correct. Hotel owners will be liable to the tourists they serve; but employers need not protect the safety of their employees. Had a hotel employee been accosted like Ms. Willis, he/she would receive no benefits. None.

Next: An Update on Emma Murray v. Mariner Health.

The Supreme Court voted 4-3 (the same justices voting the same way as in the Willis case above), to accept jurisdiction over this attorney fee case that will test, if it remains jurisdictional, the constitutionality of the 2003 attorney fee mandatory fee schedule. After all briefs are filed, the court can change its mind and find that jurisdiction was improvidently granted and dismiss the appeal. A number of entities including the FJA, the Workers' Compensation Section of the Florida Bar and of course employer and carrier associations have all asked the court to allow them to be Friends of the Court (Amicus Curiae). In a nutshell, the real issue is power. Will the Supreme Court give up its current control over attorneys to the legislature? After all, if the legislature can pass a law that establishes an irrebuttable presumption of what a reasonable attorney fee is for WC lawyers, they can do it for all lawyers. Hey PIP lawyer, would you like to be relegated to 10% of the doctor bill you recover for your insurance beneficiary client no matter how much time you put in fighting the carrier? Maybe you are next. And remember, the insurance carrier can spend whatever it takes to beat you. Welcome to the wonderful world of comp.

Andrea Cox moves on

2007-09-16T17:54:00.000-07:00

Andrea M. Cox, Esq. has worked with me for the past 5 years. She is leaving to pursue her appellate practice with a multi state firm that does not handle workers' compensation matters. Her talent and intellect will be missed. The clients that she represented were well served. While I seek a replacement I will continue to handle all matters myself.

The Jose Somohano Family Death Benefit Act

2007-09-16T17:31:00.000-07:00

This past week the citizens of Miami-Dade County lost another brave public servant. Jose Somohano was gunned down on the job. He left a young widow and 2 young children. His family will receive two thirds of his pay, up to the maximum allowed, for approximately 3 1/2 years until $150,000.00 is paid out. Then the workers' compensation death benefit will end. The widow will be about 40. The kids not yet in college. The income will cease, except for the charity, the funds set up by strangers. Will it be enough?
Less than a month ago a Broward county deputy was killed on the job and left a widow and children. Again, the compensation benefits will run out in a little over 3 years.
35 years ago the National Commission on State Workers' Compensation Laws reported unanimously to the congress and the president that workers' compensation benefits were woefully inadequate. In the area of death benefits the commission said the widows benefits should be for life or until remarriage, and even if remarried, for the payment of another 2 years in a lump sum. The children should be paid as long as dependent, at least to age 18 and at least to age 25 if they are in school. Thirty five years later and the best we can do is a total of $150,000.00?
It's time to tell your legislators that those killed on the job, over 400 people every year in Florida, need to have benefits that take care of their dependants for longer than 3 1/2 years.
I propose the Jose Somohano Family Death Benefit Act. An act to provide benefits as suggested 35 years ago. Let his death be a legacy.

On another note, as the current chair of the Workers' Compensation Section of the Florida Bar, I attended a meeting with CFO Alex Sink. The CFO oversees the Division of Workers' Compensation, the Administration Trust Fund and the Divison of Risk Management. The Section's legislative positions were discussed and a request was made for the CFO to commission a study of the effects of the 2003 amendments, other than the obvious drop in premiums of almost 50%. The CFO was receptive to the idea.

Professionalism

2007-08-23T17:43:00.000-07:00

Like pornography, professionalism is hard to define but something we know when we see it. Over the past 33 years one special lawyer in the workers' compensation practice exemplified professionalism. Not that there aren't others. Therefore, I was proud to introduce at the workers' compensation executive council meeting a resolution to create the Albert M. Frierson Professionalism Award. Al was naturally the first recipient and he accepted the award at the section's annual meeting. The section will be asked to nominate others for this award in the future. I hope the competition is fierce. That would mean we are accomplishing the goal of making the practice of workers' compensaiton law in Florida one where all partices are treated with the respect we all deserve. The words of the day: Be Considerate out there.

The Wrongful Act Doctrine and Reasonable Attorney Fees

2007-07-26T19:57:00.000-07:00

Recently a very wise lawyer and old friend who has practiced in workers' compensation for more years than I, (hardly seems possible) mentioned that there were not two but three ways a lawyer can become entitled to be paid a fee by someone other than the client. It is well known that attorney fees can be collected from an adversary if allowed by statute or if pursuant to a contract. Workers' compensation claimants fees when paid by the employer/carrier are pursuant to the statute (F.S. 440.34). My friend mentioned "The Wrongful Act Doctrine". Simply explained, envision three parties, A, B and C. A commits a wrongful act. As a result of the act, B is required to take legal action against C to correct the wrong. Think of it this way, A is the owner of a piece of property and A blocks off access to B's property. B is required to sue C, the county government to force A to reopen the access. B can collect his reasonable attorney fees from A, the wrongful actor.
Now let's change the labels. A is the licensed adjuster for a carrier or third party administrator. B is injured while working for C, the insured employer. As a result of A's wrongful act which violates the insurance code and his arbitrary and capricious denial of obviously due compensation benefits, B is required to hire an attorney to file a claim against C.
It is possible that if the adjuster is specifically a target of the claim for fees, that the JCC can find the adjuster personally liable for a reasonable fee to correct the wrongful act.
I will be presenting this issue to a Judge of Compensation Claims in the near future on behalf of a client whose medical care was denied by an adjuster who had absolutely no evidence to support the denial. In fact, two authorized doctors had requested the care and the adjuster testified that it was merely her personal belief that the condition for which care was requested was not related to the accident. No other investigation was done.
Stay tuned.

Fraud: Fair and unbiased prosecution?

2007-07-23T18:16:00.000-07:00

I have had some recent experiences dealing with fraud investigators. I really hate to write this, but they are either overworked, undertrained or can't see their way clear to investigate the more complicated employer or carrier fraud compared with the simple claimant fraud served up to them on a silver platter by carrier surveillance operatives and insurance defense lawyers who tend to entrap claimants with carefully crafted questions at depositions.
Case in point: Claimant has his AWW determined based upon the reported payroll by his employer which didn't include the substantial cash payments made each week. The premium fraud is reported. Evidence is gathered by claimant's lawyer. The name of the bank that provides the cash each week is provided. The names and addresses of other employees who will confirm the cash payments are provided. Even a stipulation entered into in another case wherein the employer admitted to cash payments to employees. Silver platter served up.
First it took three attempts just to get the frauds bureau to acknowlege receipt of the complaint. Then months went by without an investigator being assigned (short of help they claimed). Then an investigator is assigned who asks for the same information every month or so until finally contacting the claimant and one co-worker who confirmed the cash payments. Now I'm told it will be about a year before any prosecution could begin, if at all. Why?
Next case: Claimant discovers her checks are being mailed late without the required interest payment. The post office confirms backdating of the postage meter at the carrier mailing facility by overstamping the metered date with the true date of mailing. Reported. Fraud supervisor assigned. He doesn't understand when a compensation payment is due. He doesn't understand the mailing date significance. He figures if the post office picks up mail late and doesn't get to it until the next day that that would explain the overstamp. He is clueless. He doesn't think it is fraud to date a check on the last day of the two week period of time within which to pay and postmarking it the following day but not include the automatic interest due on a late payment. He doesn't understand that if he were to contact the adjuster and ask, under oath, what day the check was mailed, the adjuster would swear it is the same day as the check is dated. Fraud. Designed to cheat claimants out of the interest who don't save the envelope to prove the late payment was mailed. Probably mail fraud too.
Case three: The carrier who finds a post office that allows mailing using a permit that doesn't require a postmark at all! Then when asked to produce a payout record it shows that payments were mailed late without the interest. And the division won't even require the carrier to use a postal system that has a date of mailing!
But I guess these are just too difficult for prosecution. Let's just go after the claimant who makes a minor mistake in his deposition or in his history to his doctor. Much easier and the claimant will plead to avoid a trial and just agree to give up his comp and medical because he was arrested.

Who gets the $10.00 co-payment?

2007-07-06T10:15:00.000-07:00

Effective January 1, 1994 the legislature mandated that all injured workers who reach overall MMI (Maximum Medical Improvement) but who still need to see the doctor or get palliative care, must pay a $10.00 co-payment. The statute, s.440.13(14)(c) is silent about what entity gets the actual money. In other words, does the co-payment enure to the benefit of the employer/carrier or is it for the benefit of the party providing the medical service? Up to now, there is no reported case and no way to answer the question other than to presume the money gets paid by the claimant to the doctor. A better question then is: Does the E/C reduce the fee scehdule payment to the doctor by $10.00 per visit after overall MMI? I have asked this question of a number of adjusters and doctors and no one seems to know the answer.

Logically, if there is a fee schedule for a service, regardless of who pays it, that is the most the doctor can receive, co-pay or no co-pay. If the carrier doesn't reduce the fee schedule payment for each visit after MMI, the doctor is being overpaid and the carrier is overpaying. But can a claimant assume that if the carrier pays the full fee schedule for the visit, that the doctor is overcharging the claimant? I'd like some other comments on this subject, so please reply with your thoughts.

Supreme Court Opinion Day

2007-06-21T09:09:00.000-07:00

Each Thursday while the Supreme Court of Florida is in session, at about 11am, the court posts opinions on the court website. Today was no exception. Although most opinions concern Death or Disbarment, there was one opinion today of interest to students of workers' compensation and employer liability. The actual policy of insurance that covers employees injured on the job in Florida is called the "workers' compensation and employer liability policy". Employer liability is restricted to cases where the employee is able to avoid the exclusive remedy that is called workers' compensation, and sue the employer in civil court for tort damages. Under those limited circumstances the employer would have no coverage for the suit under a general liability policy (which would exclude from coverage, 'employees'). So the 'gap' is filled by what is commonly referred to as Part II (or Part B) of the WC policy.
One way to avoid the exclusive libility for an injury to an employee on the job is to prove (pre October 1, 2003) that the injury was caused by some intentional act on the part of the employer which was usbstantially certain to cause injury or death to the employee. In Turner v. PCR, 754 So. 2d683(Fla.2000), the Supreme Court allowed such a suit vs. an employer who had ignored obvious indications that the employers conduct would lead to an explosion. In Travelers v. PCR, the 11th Circuit certified a question to the FLorida Supreme Court as to whether or not the Travelers policy of WC insurance issued to the PCR business 'covered' a judgement based upon an intentional act. Travelers sought to avoid paying. The Florida Supreme Court (citation omitted) answered the question to the effect that the policy of insurance did cover the so called intentional act becasue the policy language was not clear, but that the policy could be rewritten to avoid such liability in the future. Of note policies written after the PCR case and after the amendment to the statute eff. 10/1/2003, do specifically exclude coverage for any intentional acts as they are described in ch. 440.
One case that was filed in Miami-Dade County for a pre 10/1/2003 date of accident was Bakerman v. The Bombay Company, 891 So. 2d 555 (Fla. 3 DCA 2004). Bakerman alleged that his employer committed an intentional act which caused his injury. As with most cases that go to a jury wherein the plaintiff is an employee and the defendant is the employer, the jury found for Bakerman, holding that the employers conduct in providing Bakerman with an obviously defective ladder to use to retrieve merchandise from a high shelf, was enough to qualify as an intentional act substanially certain to cause injury or death. After a 1/3 reduction for comparative fault, the jury awarded Bakerman a net of $118,228.20 for his injury, a bad fracture of the left heel. Bakerman had previously collected workers' compensation indemnity and medical benefits. Bombay appealed to the Third DCA.
Not surprisingly the Third DCA reversed the jury award and held for Bombay. An appeal to the Supreme Court alleging express and direct conflict with Turner resulted in today's decision. The Third DCA was reversed and in effect the jury verdict was reinstated.
What is most interesting is the original language used by Judge Schwartz (now Senior Judge) in the original opinion of the Third DCA which, even though withdrawn from the DCA opinion on rehearing was nevertheless quoted by the three justice dissent filed with the Supreme Court opinion. Judge Schwartz had commented, "It is simply beyond my comprehension that the employer's use of a worn ladder can amount to the extreme manslaughter-type misbehavior which is necessary to avoid the immunity conferred by the Workers' Compensation Act".
The 'Schwartz' position was echoed by Justices Wells, Bell and Cantero in their dissent in Bakerman. Justices Quince, Lewis,C.J., Anstead and Pariente concurred in the majority opinion.
Therein lies the tale of the 4-3 court in Florida. Four understand that an employers disregard for the health and safety of employees by those who are empowered to fire and discipline employees who don't do as they are told, is an enormous power which must be viewed as such. Employers who literally force employees to do unsafe acts in furtherance of the employers profit motive must be held accountable for this type of intentional conduct. A rickety ladder, a frayed safety line, and the failure to maintain an aircraft, have one thing in common, they are intentional acts, done for profit, that ignore the obvious danger they pose to employees. Three think that if the employer doesn't actually take a stick and poke the employee in the eye, there is no harm and no foul. Three seem to think that concealment is an element to be considered. But what real choice does the roofer have, even if the unsafe condition under which he must work is not concealed? Will he walk off the job? Will he call OSHA (and wait weeks or moths while OSHA gets around to his complaint)? Or will he weigh the chances he can avoid the peril and avoid his own injury or death with the chances he can find a better paying, safer job somewhere else? My bet is he does what he is told. Bakerman did what he was told. He knew the ladder was unsafe. And he lost 1/3 of his total recovery for his own comparative negligence. That is what he paid for knowing about the peril and ignoring it. A just result.
In the real world the employee, especially in a right to work state like Florida, has little say in the safety of the workplace. Even our Supreme Court justices have little say in the safety of their courthouse. Is there a dangerous mold growing in the wet basement? Has all the asbestos been removed from the building? Is a sick building danger being concealed? Can they refuse to work in an usafe building? Will they?
Now that the legislature has upped the level of culpability needed to file suit for an intentional act, adding the concealment factor, and now that the insurance industry has followed the courts instructions on how to avoid paying for these acts, this case really is an exercise in futility. On that point I agree with the dissent. But the fact that three couldn't see that workers' compensation should never be the sole remedy for gross negligence by an employer, that is disturbing.
A second case I have been watching in the Supreme Court is still undecided. Willis v. Gami Golden Glades, SC04-1929 still has no decision. This is a case which involves the "Impact Rule". Simply stated, in order to successfully sue for psychiatric injuries (emotional distress) does there need to be a physical injury to connect the psychiatric condition to? Willis was accosted and robbed at gunpoint on defendant's unsecured parking lot. She sued but was rebuffed by (drumroll...) the Third DCA. Governor Crist and the Florida Legislature in this most recent session passed a bill granting workers' compensation benefits to first responders who suffer psychiatric injury without underlying physical injury. If WC can reconize that there can be such a real injury, why not Tort? It's time we in Florida recognize what the Federal government, the Veterans Administration, 30+ states and international law reognize; that there can be a real psychiatric injury without a physical injury as a basis for it. If not, a huge percentage of our soldiers returning from Iraq and Afghanistan would be SOL.

Will all appeals of JCC orders continue to go to only the 1DCA?

2007-06-20T08:12:00.000-07:00

Maybe not. Or at least not if Richard Sicking, Esq. prevails in Raul Saldana vs. Miami-Dade County, Case # SC07-1110 filed June 15, 2007 as a Petition for a Writ of Prohibition. Mr. Sicking is asking the Supreme Court to prohibit the 1 DCA from hearing an appeal from an order of a MIA JCC entered in Miami-Dade county and to transfer "jurisdiction" over the appeal to the 3 DCA.
I have long thought that the statute sending all appeals of WC matters, which are really private claims between employees and employers to one DCA, was unconstitutional. Even if the Supreme Court in it's decision finding the statute constitutional in the early 1980's was correct then, it is no longer correct now. The basis for the court OK of sending all WC appeals to the 1 DCA in Tallahassee was that, at the time, the Divison of Workers' Compensation, a State of Florida Agency, was not only a 'party' to all WC appeals but was also 'housed' in Tallahassee which is in the geographical jurisdiction of the 1 DCA. In the mid 1980's the statute making the Division a party was changed. The division is no longer a party and therefore there is no real legal basis for engaging in the fiction that the appeals have to go, or can legally be placed where the division is 'housed'.
The "England" court of the early 80's made no bones about wanting to restrict its own jurisdiction. The court lobbied for the constitutional change made in 1980 that in fact did restrict the mandatory and the discretionary jurisdiction of the Court. The statutory change putting all WC appeals in the 1 DCA accomplished yet a further reduction in the courts case load by making it impossible for there to be "an express and direct conflict" between decisions of two different district courts of appeal. One DCA hears all appeals equals minimal possible conflict jurisdiction for the court. Since 1980 the court has actually accepted only two conflict cases involving WC issues. One found an express and direct conflict with a prior supreme court decision and the other a conflict between two DCA's on an issue related to liens against third party recoveries, which allow appeals to the various district courts. Other constitutional issue cases and some certified questions have been heard by the court since 1980, but not many. Recently the court has even declined to hear certified questions posed by the 1 DCA in attorney fee issue cases.
So will the current court decide that WC appeals should go to the DCA's that cover the geographical area the JCC order comes from? Or will 4/5ths of Florida voters be denied the right to vote to retain the DCA judges that must hear their appeals in WC cases? Stay tuned.

I've been too busy to blog

2007-06-15T11:50:00.000-07:00

That's right, too busy to blog. A lot has been going on in the wonderful world of workers' compensation. A lot of talk about the Supreme Court asking for jurisdictional briefs in Emma Murray's case when they denied the same request in the Campbell case. All this comes after Mary Bailey and her VOICES group was booted off the steps of the court during a demonstration complaining about the inability of injured workers to get counsel to represent them due to the attorney fee limits imposed by the legislature in 2003. A connection? Who knows?
JCC Sculco (Orlando) issued an attorney fee order that will go up on appeal in which he found claimant's counsel to be due a reasonable fee of over $20,000.00, but he had to award the statutory fee of $1,600.00 which amounted to $11.80 per hour. The JCC found this hourly level of remuneration to be 'confiscatory'. The order can be found on the DOAH/OJCC site under case # 05-000700. I understand the E/C asked for rehearing because the order was too well written!
In August 2007 the workers' compensation section will elect a whole new executive council to take office in August 2008. The section is trying to attract new members to the council by setting up term limits for existing council members and making the council more geographically correct by having a minimum of two members from each of the 5 appellate districts, one claimant and one carrier. I urge all seciton members to consider running in the election for either an at large seat (there are 5 claimant and 5 carrier) or a district seat. Terms are staggered after the initial election in 2007.

Scott Bailey to get his knee replacement

2007-05-22T18:05:00.000-07:00

Last week, after WILG was approved by the 1 DCA to be Amicus, the carrier requested another mediation and then threw a lot of money at Scott to get him to drop his appeal. It was quite enough for his knee replacement. I hope the same result comes about in every case that apportions medical care. But, I know that will not be the case. So the Amicus brief is on hold, but almost finished. Please contact me if you know of any similar case going to trial on the apportionment issue

Update on former blogs and other things

2007-04-26T18:10:00.000-07:00

One 'other thing'. Emma Murray's case challenging the fee restrictions resulted in one of those 'certified questions' which was rejected by the Supreme Court. Recently the court issued an order requiring the parties to submit jurisdictional briefs on the constitutional issues raised in a motion filed with the certified question for the ocurt to accept jurisdiciton on other grounds. This same tactic failed in "Campbell", but 5 of the 7 Justices including Justice's Bell and Cantero, voted to allow the filing of jurisdicitonal briefs. All injured workers should hope and pray that this portends better things for those who need legal help getting the meager benefits provided by law.

Scott Bailey's medical apportionment case (knee replacement at his cost of 49%) is being handled on appeal by Bill McCabe. I have been authorized by WILG (www.wilg.org) to file an Amicus brief on behalf of Scott. I filed my motion and I am waiting for the court's permission. If I don't get it I will ask FWA to allow a similar motion.

I was contacted today to represent another medical apportionment victim, this one 45% claimant paid medical (plus $10.00 co-pay) and 55% carrier paid medical, per Dr. Orestes Rosabal. I am considering filing for declaratory relief rather than pursuing the compensation claim. I will wait for the claimant to actually pay 45% (plus $10.00) for his next doctor visit and the file a petiton for reimbursement and get the denial before filing suit. Anyone want to assist?

I have my own 'fee challenge' case, Lilia Rodriguez v. Miami-Dade Fire Rescue. My brief is due soon. This is the case where I seek to distinguish the JCC's jurisdiction to 'approve' a fee stipulation from the JCC's jurisdiction to 'award' a fee. Keeping my fingers crossed.

Oh, and the carrier that is fighting like hell to be allowed to send in expensive home health aides instead of paying claimant's wife at minimum wage; trial is Monday. They're still fighting although they did throw in the towel on the issue of paying the new and higher Florida minimum wage instead of the lower Federal minimum wage.

Once again I must force an insurance company to save money

2007-04-18T10:14:00.000-07:00

It's not easy. The insurance companies go down kicking and screaming. In the end, more often than not, the injured worker prevails and the carrier gets to pay less in benefits. It's dirty work but somebody has to do it.
The first time this happened I was surprised. Actually shocked. My client was a young lady who worked for a restaurant as a hostess. Her husband worked for the same restaurant as a cook. Company policy required them to work different shifts, and they did. On the day of the incident, claimant was working and her husband was off and planning to go to a movie with a friend. The cook on duty became ill. The manager called the claimant's husband to come to work. The husband was still home because his friend was late picking him up. He came in to work.
Shortly after her husband came in to work so did some masked men with shotguns. A robbery was announced. The claimant was held at gunpoint and her husband come out from the kitchen to protect her. He was shotgunned to death as he stood at her side. His friend will never forgive himself for being late that night.
Claimant had some minor physical injury but her major problem was Post Traumatic Stress Disorder which is totally disabling. Claimant developed a fear of other people so she moved to Colorado into a cabin near where her sister lived. Her authorized psychiatrist prescribed 24 hour attendant care. Claimant's sister agreed to provide 12 hours per day and the carrier hired home health aides for the 12 nighttime hours. Unfortunately, claimant had a terrible time coping with people she didn't know coming to the house. She couldn't sleep. She was fearful. The aides were not the same every night. Her authorized psychiatrist opined that claimant should have a service dog provided to her for the 12 hours she was mostly sleeping and medicated. The dog would be provded free of charge. All the carrier had to do to was to pay for the vetinary bills, food and training. The dog would be trained to protect the claimant if someone she didn't know approached her. The dog would be trained to arouse the claimant from her sleep and get her out of the house if the smoke detector went off. The dog would be trained to keep the claimant in her bedroom at night to prevent the claimant from wandering off into the snow or cut herself with knives in the kitchen or binge on food. Claimant had been known to do all of these things.
Incredulously, the carrier fought like hell to be able to send in expensive aides 12 hours a day, 7 days per week, instead of pay for the far less expensive service dog. I keep a picture of my client and her trained St. Bernard along with her thank you note behind my desk to remind me every day as I get to the office how absolutely stupid insurance carriers can be.
Today I fought a similar fight. My client was prescribed 12 hours a day of home care. The JCC awarded 6 hours paid at minimum wage to claimant's wife and 6 hours to be provided by an RN. At the time claimant needed injections that the RN's would provide along with allowing claimant's wife to leave the home for a while since she really took care of claimant 24 hours per day!
Last year claimant was able to wean off the injected medications with the help of his wife and his authorized doctor advised he could be assisted by home health aides instead for 6 hours per day. That worked for a time, but it became apparent that the HHA's were either unreliable, unble to do the work from a physical standpoint (too old or too lame), unqualified or just plain lazy. Claimant asked that the JCC's order requiring 6 hours care by his wife and 6 hours professional care be modified to pay the wife for 12 hours at minimum wage and let the HHA's go by the wayside. Denied! A petition for benefits to modify the prior order of the JCC due to the change in condition was filed, Denied. The carrier was advised to stop sending the HHA's. Refused. So they showed up and were turned away by claimant, but were still paid by the carrier!
The hearing before the JCC is in a few weeks. Claimand wants the carrier to spend less money for his needed care but still provide what is reasonable, necessary and within the limit of 12 hours set by law for payment to a family member.
Pennywise and pound foolish comes to mind, but that is not the case. It's just plain foolish. There is nothing wise about it.
I'll never forget the statement made to the JCC by the attorney defending the service dog case at the end of the hearing. She said, "I can't believe my client is making me do this!".
And we all wonder why medical costs in Workers' Compensation cases are out of control.

My E-Mail to Mike Eidson, President of AAJ (formerly ATLA)

2007-04-18T07:50:00.000-07:00

If you support this request, you can let Mr. Eidson know at mike@colson.com .

Mike, Mark Zientz here (www.mzlaw.com) I am a former AAJ member. I quit recently over a few issues, one of which was the perceived lack of AAJ support for workers' compensation issues. I am currently the chair-elect of the WC section of the Florida Bar and have practiced in Florida WC for over 33 years. I know you know the problems faced by WC lawyers since the 2003 amendments to the comp act were passed by King Jeb. Here is what is going on today.
Injured workers cannot get lawyers to represent them. It is a crime (440.105(3)(c)) for any lawyer to take on representation of an injured worker unless the fee arrangement is approved by a Judge of Compensation Claims (JCC) or the Deputy Chief JCC. Employers and carriers have no such constraints. FJA (I am still a member) fought long and hard and at great expense to protect the right of Med Mal lawyers to get paid. I suspect that there are more than 100 compensation claimants going without attorneys for every 1 med mal plaintiff that has one. Today, attorney Barry Keyfetz emailed a copy of a letter being sent by an injured worker that Barry is helping out, pro bono, to the JCC assigned to his case. I'm sure Barry would share the letter with you since I have an unedited draft . bkeyfetz@bellsouth.net . The injured worker has the means to pay a lawyer hourly to assist him and counsel him and would gladly agree to the same percentages that are now allowed by the Rules of Professional Responsibility if the lawyer took on the case on a contingent basis. No lawyer can afford to represent the injured worker under either of these scenarios. The 'fee' can ONLY be the WC fee schedule applied to the benefits achieved, if any. The benefits involved in this case are not sufficient for a claimant lawyer to fight the employer to obtain them. The E/C can expend any amount on the defense. The fee schedule in 440.34 is 20% of the first $5,000.00, 15% of the next $5,000.00 and 10% over $10,000.00. No lawyer can even charge $10.00 for a consultation without trying to get JCC approval. Approval for a $10.00 "fee" will not be forthcoming unless there are at least $50.00 in benefits achieved! Imagine what would happen if the legislature's PIP solution was to do the same thing to PIP lawyers? Fee schedule ONLY. And remember, the insurance code regarding 'Bad Faith' handling of claims does NOT apply in WC matters either!
The 2003 amendments have caused yet more draconian results. In January of this year JCC Laura Roesch entered an order awarding Scott Bailey 51% of the cost of a total knee replacement as the Employer/Carrier (E/C) share of his medical. 62 year old Scott has no other insurance and no money to pay his 49%! So, he gets no medical care and no indemnity while recovering from surgery because he will never get the surgery. The E/C is off the hook entirely for an admittedly compensable injury on the job. Scott's doctors opined that he may never have needed the knee replacement but for the accident at work, or if he did need one, maybe in 15-20 years, except for the accident! The facts are not in dispute. The JCC followed the law!
Florida Workers Advocates (FWA) of which I am a Board member will get involved as Amicus in the appeal to the 1 DCA in case #1D07-1118. Workers Injury Law and Advocacy Group (WILG), of which I am a Board Member will also get involved as Amicus. FJA will be requested to offer editing and research support. But, there is nothing like AAJ/CCL. We need CCL to get involved and challenge the constitutionality of the Florida WC act.We need CCL to be prepared to take the issue into Federal Court.
Please take the time to read what our Florida Supreme Court wrote in response to a challenge to the constitutionality of the 1990 amendments to the Act. Those amendments (like all amendments since 1978) were designed to reduce benefits and curtail the compensability of various types of injuries and accidents. The court, in Martinez v. Scanlan, 582 So. 2d 1167, 1171 (Fla. 1991) opined that while the WC law remained a reasonable alternative to tort litigation, it did so because the act still provided FULL medical and wage loss payment for total or partial disability.
After October 1, 2003, not only is there no full medical anymore (every injured worker who reached MMI has to pay a $10.00 co-pay to see the doctor), preexisting conditions are apportioned out for disability and medical benefits, AND there is no longer ANY compensation for partial loss of wage earning capacity...NONE.
So how can AAJ and CCL show that they care about the families of injured workers? That they care about injured workers being able to obtain counsel? That they care about their own interests? Yes, tort lawyers have to remember that WC is the ORIGINAL tort reform. It came about because juries tended to favor the injured worker over the employer. They still do when given the opportunity. When instructed to return a defense verdict if the plaintiff was even 1% negligent (remember those days pre 1972 in Florida?), or if the plaintiff assumed the risk of hazardous employment, or if a fellow servant was at fault, the juries returned massive verdicts for the worker. Employers ran to the legislatures for protection, and they got it. With the advent of comparative negligence, the value of the 'trade' of fast, sure and adequate benefits (some joke ) for employer/carrier immunity should have resulted in benefits being increased substantially, as the value of the 'trade' changed. But no, the opposite occurred. With the help of CCL we can get rid of the original tort reform and make employers answerable for their negligence. We can lift the marshal law imposed by use of the police power of the state in 1913 (1935 in Florida) to allow the 7th amendment to be voided in cases of injury on the job ( the Florida constitution also says the right to trial by jury shall be "inviolate"). We can get employers to provide safe places to work, an incentive lost to the current WC scheme (JEB also dismantled the Florida Division of Safety and OSHA says it would take 210 years to inspect every private workplace in Florida just one time).
You, as a Florida lawyer of some renown and as President of AAJ should not let this terrible injustice to working families continue.
Please do something. And please do it now. Before the opportunity is lost.
Mark Zientz
305-670-6275

On a personal note...

2007-04-17T18:07:00.000-07:00

I have been on R & R for the past few days. My grandson, Zane, turned one and I decided not to miss his first birthday party. It's been a long time since I fingerpainted.
On my return today I participated in an Amicus committee meeting with other members of the WILG board to discuss the Scott Bailey case. I have written about Scott in this Blog. He is the injured worker who was awarded 51% of the cost of his total knee replacement which effectively denied the knee replacement because Scott can't afford the other 49%! Paul Anderson, Bailey's attorney participated too and invited WILG participation as Amicus. The committee voted unanimously to ask the WILG board to approve a WILG Amicus brief in Scott's case. I can't imagine the Board will not enthusiastically approve. I have agreed to serve as point person.
Tomorrow I will conference with Paul Anderson and Bill McCabe, who has been hired to represent Scott on the appeal to discuss strategy.

Another case of note was handed down last week by the 1 DCA. It involved a firefighter who was diagnosed with Hypertension after his annual exam and placed on blood pressure medication. His condition is one that should be covered by the Heart and Lung bill but ch. 440, according to the DCA panel that decided his case, determined the benefits portion of the Act isn't triggered in occupational disease cases until disability results. The firefighter didn't lose time from work or wages. So, not only doesn't he get his Impairment benefits he also doesn't get his medication paid for by the compensation insurer (or self insured employer) and he has to pay for it himself or pay co-pays via other insurance.
This case presents more evidence that Florida's workers' compensation act no longer provides the benefits this no fault scheme was designed to provide. A further appeal based upon express and direct conflict with the Magic City Bottle case is planned. I also have it on good authority that a challenge to the jurisdiciton of the 1 DCA to hear all workers' compensation appeals may also be on the horizon. Stay tuned.

This will make you want to scream

2007-03-30T06:12:00.000-07:00

In an order dated January 31, 2007, one of our esteemed JCC's ruled that a 62 year old injured worker with no health insurance, had to pay 49% of the cost of his total knee replacement. The Employer/Carrier is responsible for the other 51%. While the decision is supported by the law in effect on 8/26/2004, the end result is no medical benefits for the injured worker. The law for this date of accident says, "Medical benefits shall be paid apportioning out the percentage of the need for such care attributable to the pre-existing condition". Had the injured worker had health insurance he would be no better off! Virtually all group insurance policies and individual policies (as well as medicare and medicaid) will not pay for work related injuries.
So the end result is the injured worker with health insurance who gets hurt at home gets his knee replaced but the injured worker, with or without health insurance, who gets hurt at work does not (unless of course he has the cash to pay his share of the cost). And what is his share? Is it 49% of the workers' compensation fee schedule that the employer/carrier will insist on using? Or is it 49% of the usual and customary charges the doctor will want to get paid? And what doctor or hospital will take on a patient under these circumstances? None.
What about indemnity you ask? Well, if the claimant refuses to pay his share for the surgery, is the employer /carrier liable for any more indemnity during the period of refusal? It's not like the claimant is refusing reasonable medical care, he just doesn't have the money to pay his portion.
The accident in this case occurred when the injured worker was descending a flight of stairs, missed one and landed hard on one foot. He was diagnosed with a lot of preexisting (but non- disabling) osteoarthritis. He apparently didn't even know he had arthritis in his knee since he got no prior medical care for it and had no symptoms. The medical evidence revealed he would likely have needed the knee replaced at some time in the future, maybe in 10 or fifteen years, but due to the accident, needs it now. But the law says that only that portion of the need for medical care caused by the acceleration is compensable, hence the 51% award.
Employer negligence would have helped out our injured worker. Martinez v. Scanlan says, in relation to the workers' compensation act, that Chapter 440 remains a reasonable alternative to tort litigation. "It (the workers' compensation act) continues to provide injured workers with full medical care and wage loss payments for total or partial disability regardless of fault and without the delay and uncertainty of tort litigation. Furthermore, while there are situations where an injured worker would be eligible for benefits under the pre-1990 law (and the pre 2003 law!), and is no longer eligible, that employee is not without a remedy. There still may remain the viable alternative of tort litigation in these instances." 582 So. 2d 1167,1171(Fla. 1991). So if the workplace was unsafe, the stairs not up to code, the carpet ripped, the lighting bad...you get the picture.
In tort the "eggshell" plaintiff recovers. In comp, he does not.
The order of the JCC in this case is on appeal and will likely generate some Amicus briefs. But in the meantime the injured worker suffers the pain and disability related to a knee, injured at work, that he cannot afford to get fixed.
I will be asking the board of directors of Florida Workers Advocates (FWA) to set up a fund to which readers of this Blog may contribute to get our injured worker the surgery he needs. More information as it becomes available and a link will be posted here.

Arbitration

2007-03-23T06:49:00.000-07:00

Florida Statute 440.1926 (2003) allows the parties to seek the consent of the JCC to enter into binding arbitration of all issues. In recent months the JCC's have apparently been under pressure to close files, dispose of petitions, decide claims, deny continuances and consolidations, refuse to allow post hearing depositions and the like because the numbers game is heating up and no JCC wants to be left behind. While there is no direct pressure, the rules of the game require good numbers and those that have bad numbers don't 'look good'. "It is better to look good than to judge good", to paraphrase the old saying.
I have arbitrated claims for professional football players for over 20 years and have been found fair by both sides. I have been approved by JCC order to arbirate private workers' compensation claims where the defense attorney from a major firm has accepted my services too. Forms to use to get consent of the JCC to arbitrate are on this website.
You as the attorney for the claimant or the carrier can take control of your cases by using arbitration. As arbirator, no one keeps track of my numbers. Think about it.

Broadspire Postal Permit

2007-03-20T18:30:00.000-07:00

Another screw job to watch for. Broadspire has obtained a postal permit from Illinois that allows them to put the permit number on the checks they mail and have them delivered without a postmark. There is no way to tell when the checks were actually mailed. I have advised my Broadspire clients to note on every check copy the date it was delivered. I have obtained payout records from Broadspire. It seems the computer payout doesn't indicate the mailing date either, only the date the check was ordered. The date on the check is not always the date of the order, or even the next day. The adjusters can't swear to when the check is mailed.
Here's the kicker, Broadspire usually waits to the very last day or the day before the very last day to mail a check! And one more thing. When they do make an obviously late payment, ie: the check itself is dated after the last day of the two week period to be compensated, they don't 'voluntarily' (and at the same time as a late payment) pay the minimum $5.00 interest.
In one of my cases the Compliance Bureau fined the carrier and required the payment of penalties and interest. Yet the division won't require Broadspire to use a postal mailing scheme that allows the recipient of a compensation payment to know when it was mailed. I have a hearing coming up at which I am asking the JCC to require mailing of checks with a postmark. My 'claim' is based upon the statute and the rules which rely upon mailing dates for imposition of penalties and interest. Stay tuned.

Attendant Care

2007-03-20T18:24:00.000-07:00

Two Miami JCC's (Castiello and Medina Shore) have ruled that family members who provide attendant care must be paid at the new state constitutionally mandated minimum wage. JCC Castiello's order was affirmed PCA. Judge Medina Shore's order will not be appealed because the carrier fears it won't be able to screw other claimant's whom they will continue to pay at Federal Minimum Wage until a case gets appealed and an opinion written to force the issue.
I understand that Liberty Mutual will cave in if the issue is raised. Other carriers, like the one in my case will fight and if they lose, not appeal.
If there are any other cases out there, contact me for copies of the two orders mentioned above.

I told you so

2007-03-19T17:01:00.000-07:00

It really didn't take long for NCCI to develop an endorsement to limit coverage for employers who intentionally injure their workers. Recall that in Turner v. PCR the Florida Supreme Court held that employers who caused injury under circumstances sufficient to lose their immunty were liable for damages. Two things happened after that decision. First, the Bush led Florida legislature in the 2003 drubbing of injured workers, passed amendments to the act which toughened up the language to make it even harder (if not impossible) for an injured worker to avoid the exclusive remedy of wokers' compensation. Next, Travelers, the company that insured PCR sued to determine if part II (Coverage B) of the Workers' Compensation and Employer Liability Policy provided coverage for the intentional but not heinous acts that caused injury to Turner and his co-workers. In the Federal court action Travelers v. PCR, the court asked the Florida Supreme Court to answer this question using Florida law. The Florida court, in a rather convoluted opinion, ruled that the policy language in part II did not specifically exclude coverage for what the court seemed to say were semi or pseudo intentional acts. The court ruled there was coverage but indicated that the ruling might be different under the 2003 amendments. The court also seemed to invite NCCI to make the policy more iron clad against coverage.
Since the court didn't rule on a question not presented, NCCI took the bull by the horns and drafted an endorsement to part II of the policy (WC 09 03 03)to make it perfectly clear that there is no coverage for employers who lose their immunity under part I due to actions which are defined in the act as intentional torts. The new language reads:

C. Exclusion 5. Section C. of Part Two of the policy is replaced by (the) following:
This insurance does not cover
5. Bodily injury intentionally caused or aggravated by you or which is the result of your engaging in conduct equivalent to an intentional tort, however defined, or other tortious conduct, such that you lose your immunity form civil liability under the workers compensation laws.
Once again the insurance industry wins and employers and employees lose. But isn't that the way it is supposed to be?

Webinar on Coverage B

2007-03-13T13:10:00.000-07:00

I thought the Webinar I presented today on Coverage B issues went well. If you are reading this and attended the telephone presentation, leave me some feedback. If you missed the presentation, it is being made available on tape or CD-ROM. Just contact Debbie Beck our section coordinator at the Florida Bar or the section's CLE chair, Dawn Traverso to order your copy. No, I don't get a commission!

My position in Lilia Rodriguez v. Miami- Dade County fee appeal

2007-03-05T06:32:00.000-08:00

AWARD VS. APPROVE: A NEW ANALYSIS OF s.440.34(1)(2003)

Yesterday, in advance of my first attorney fee hearing on a post 10/1/2003 date of accident I did what I always do, I re-read the statute. I am one of those people who can look at a whole page of text and a misspelled word will jump off the paper and hit me between the eyes. This time it wasn’t a misspelled word that jumped out of s.440.34(1), it was a mis-used word. Or maybe a mis-interpreted word. The word was ‘Approve’. So I looked at the next subsection, 440.34(2), here I found the word "award". "Award is missing from 440.34(1). And unlike (1) there is no fee schedule in (2).
I looked for a definition. Ch. 440 has no definition of ‘approve’ or ‘award’, so I went searching for the plain meaning that must be attributed to these common words. ‘Award’ is defined by Merriam - Webster as "to give by judicial decree or after careful consideration; to confer or bestow as being deserved or merited or needed". "Approve" is defined by Merriam - Webster as "to have or express a favorable opinion; to accept as satisfactory; to give formal or official sanction to".
S.440.34(1) only speaks of "approval". Approval of a joint stipulation, a stipulation or agreement of the parties, any other agreement related to benefits that provides an attorney’s fee in excess of the amount permitted by this section, or ‘approval’ of an "order". That last part gets me confused. What does approval of an "order" mean? I can only assume it is an "agreed order" on attorney fees. Nothing in s.440.34(1) prohibits the "award" of a fee in excess of the fee schedule, it only restricts "approval" of agreements presented to the JCC for sanctioning.
S.440.34(2) on the other hand speaks of an "award" of fees based upon benefits secured but no fee schedule or other method of measuring the amount of the fee is present. In s. 440.34(7) the legislature once again uses the word "approve" in connection with the one time medical only fee. That section says "if an attorney’s fee is owed under paragraph (3)(a), the JCC may "approve" an alternative attorney’s fee not to exceed $1,500.00 only once per accident, based upon a maximum hourly rate of $150.00 per hour...".
What I gleaned form all this inquiry was that the legislature was trying to protect the general public from excessive fees being negotiated by the parties to the disadvantage of the employers who pay premiums based upon the cost to their carriers of the claims they have. It also protects the injured workers from paying, by an agreement that they may not totally understand, an excessive fee for services rendered to their own attorneys. I can understand and respect those ideals. JCC’s may not and should not "approve" those types of agreements or enter those types of agreed orders. It would be wrong to allow such conduct in furtherance of remedial legislation.
But when the parties don’t agree that the schedule in s. 440.34(1) should apply and be approved, when judicial intervention is needed, (the Supreme Court has always said that setting the amount of an attorney fee is a judicial action, Lee Engineering v. Fellows , 209 So. 2d 454 (Fla. 1968), an "award" is needed. A judicial decree after careful consideration. Not by the mere application of a numerical percentage. Factors are specifically set up for the "award" of a reasonable fee. Those guidelines appear in Lee Engineering, and in Rule 4-1.5 of the Rules of Professional Responsibility for contingent fee cases. s.440.015 says the law must not be interpreted to favor either the Employee or the Employer/Carrier. Allowing unlimited defense fees while restricting claimants lawyers fees would be just such an unlawful interpretation. On appeal, the Court may award attorney fees which are not restricted by any fee schedule (440.34(5)). The DOAH is charged with measuring the performance of JCC’s by such factors as their "awards" of extraordinary fees (s.440.45)(4)).I assume that contemplates that such extraordinary fees can be awarded. But if a case is settled while on appeal, the district court will remand for the JCC’s "approval" of such settlement, including attorney fees amounts, (Rule 9.180(c)(3) Rules of Appellate Procedure).
As further proof that ‘award’ and ‘approve’ are different consider that the JCC may not "award" attorney fees for services performed (not benefits obtained) before the filing of a valid petition, (s.440.192 (7)). The legislature knows how to restrict an "award" of fees if it chooses to do so.
Has anyone else noticed that if the parties agree to arbitration and the JCC "consents" to the agreement, an arbitrator can "award" or "approve" an excess attorney fee and not be subject to appeal or reversal? (s.440.1926). Has anyone noticed that in utilization disputes the agency can "award" a health care providers attorney a reasonable attorney fee for prosecuting a petition? (s.440.13(7)(f)(3)). That means there are no fee schedule constraints for doctor’s attorneys, only injured workers attorneys, against the same employer/carriers?
So the case is made for a distinction between the "approval" of stipulated fees and the "award" of disputed fees. In the first instance a fee schedule applies, in the latter the good judgement of the JCC is called for, after consideration of the evidence required by the rules.
P.S. I tried my case. I made my argument. I am only left to wonder now whether I will be the Appellant or the Appellee.
P.P.S.- I am the Appellant- Lilia Rodriguez v. Miami-Dade County

My letter to Hillary Clinton

2007-02-28T13:43:00.001-08:00

Dear Sen Clinton,

I was thrilled to be able to stand in the foyer of the Leesfield home in Miami and listen to you speak about your impressions of the problems we face as a nation, hear your suggestions for solutions and answer questions about problems that affect all of us as occupants of this part of the world we call the United States of America.

You might remember me as the supporter who provided you with the countdown clock to your inauguration.

Alexander Heckler, one of your national finance co-chairs, suggested that if I have concerns about issues you have not previously addressed, I should send them in writing to your campaign management, who assist you in determining your position statements.

In your letter to me, dated February 20, 2007, you wrote: "And let’s talk about how we can repair the basic bargain of America: that if you work hard and play by the rules, you and your family will have the tools to make a better life".

For the past 33 years I have represented, as counsel, individuals who have had the misfortune of being injured at work. One area where this bargain of America fails to deliver is the area of workers’ compensation. The various state workers’ compensation schemes are not only a disgrace; they violate a fundamental principal of our democracy: the 7th Amendment to the U.S. Constitution, the right to trial by jury. Not even an Antonin Scalia or a Clarence Thomas could (or would) interpret the Constitution to allow for this exclusive alternative remedy to jury trials. Strict construction without judicial meddling could never justify the imposition of Marshal Law to remove from one group of citizens -- those injured on the job -- the rights afforded all other citizens, even felons serving time.

What is so unique about this issue is its place in connection with your current opposition: a former Senator and trial lawyer and an American of African decent. The workers’ compensation issue does not affect all equally. A disproportionate number of Americans who get the short end of the workers’ compensation stick are minorities. They are the ones least able to protect themselves from income loss by purchasing disability insurance. And, they are most likely to suffer the greatest personal and financial losses when hurt at work.

Neither John Edwards nor Barak Obama seem to care about the real victims of the original tort reform -- the families devastated by an injury to the breadwinner, the resulting lack of income and the poor medical care that is the norm in the workplace injury setting.

Former President Richard Nixon took the lead in 1970 by pressing for legislation that became known as the Occupational Safety and Health Administration. Part of OSHA mandated a study of state workers’ compensation laws. The National Commission on State Workers’ Compensation laws reported to the President and Congress in 1972 that by and large the state schemes for compensating injured workers were neither fair nor adequate. The Commission also stated, unanimously, that the various states were using their workers’ compensation laws as economic weapons in a form of civil war to attract industry with the promise of low premiums (and poor benefits). The Commission suggested that the Federal Government enact minimum standards for state workers’ compensation laws. It never happened.

The time has come.

Bush ‘43', when he was Governor of Texas, destroyed what was left of the workers’ compensation law in Texas and attracted half of Silicon Valley to Austin. Jeb Bush, in 2003, similarly decimated Florida’s workers’ compensation benefits and abolished the Division of Safety. Florida continues to attract business and research facilities with what are the worst workers’ compensation benefits in the nation.

If you talk to your friends and neighbors, few will be touched by the workers’ compensation nightmare. But your friends and neighbors and mine exist at the upper 2% of the nation in terms of income. Speak to your electrician, your plumber, your carpenter, your gardener and Chelsea's former teachers and you will be shocked by the horror stories about injured workers being starved into settling claims for pennies. Just yesterday Eliott Spitzer recognized how bad the workers’ compensation law is in New York and vowed to do something about it. Without Federal assistance, he will likely fail at meeting any of the goals set forth by the National Commission in 1972.

Please consider adopting as one of your goals the passage of a minimum standards bill like the bi-partisan one proposed by Williams/Javits in 1973 (S.208). The main opposition to that effort at the time came from the states themselves, not business or insurance or labor or academia.

Thank you,
Mark L. Zientz, Esq.
9130 S. Dadeland Blvd., Suite 1619
Miami, Fl. 33156

Agenda Item for WILG Board Meeting March 2, 2007

2007-02-27T07:09:00.000-08:00

This Friday Jon Haber CEO of AAJ will be present in San Antonio to hear a discussion regarding the relationship between WILG and AAJ (formerly American Trial Lawyers Assn.). I have submitted the following in support of my position that AAJ must be required to advance the cause of injured workers and their families to a much greater extent than at present in order to continue to get the support and dues money from workplace injury lawyers like myself. I have quit AAJ over this issue. I am open to reactivating my membership if AAJ will go to bat, big time, for injured workers and their families.

Our founding fathers would turn over in their graves if they were made aware of the current state of the laws in this country regarding the rights of labor to redress wrongs against management for injuries on the job, even for gross negligence in many situations. Here in FloriBush, the WC law now reads (and remember, this is the exclusive remedy):
Coverage: "The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment. The injury, its occupational cause, and any resulting manifestation or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. (MCC is defined as more than 50% of the cause as compared to all other causes and can only be proven by objective medical evidence). In cases of occupational disease or repetitive trauma, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable".
It goes on and gets worse. And the employee may only present testimony in support of his claim from ONE IME that he has to pay for himself. Other medical testimony can only come from the Employers Authorized treating doctor(s), the employers IME or an Expert medical advisor (whose opinion is presumed to be correct) chosen form a list of carrier whores who were pressured to apply for these positions by the carriers.
Employers can only be sued if they don't have required coverage (and which ones of those can afford to pay a judgement?), or "if the employer deliberately intended to injure the employee" (in which case there is no coverage under any policy of insurance) or if "the employer engaged in conduct that the employer knew, based upon prior similar accidents (the first and second dog bites are free), or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgement about whether to perform the work" (or quit, or be fired!). And again, what insurer will insure against this intentional conduct? Emphasis and commentary added.
THIS IS THE EXCLUSIVE REMEDY. Employers, whose business locations in FloriBush will be inspected by OSHA once every 216 years (according to government statistics) can be as ruthless and unsafe as they desire. FloriBush disbanded the Florida Division of Safety in 2003!
And this is not to mention that the injured worker who wants to try to get the meager benefits that are provided (FloriBush no longer provides any compensation for partial loss of wage earning capacity) and who needs the help of counsel, cannot get an attorney except in the biggest dollar cases because fees for lawyers representing injured workers, (but not lawyers representing employer/carriers) are restricted to roughly 10% of the benefits they achieve. And the lawyer has to lay out the costs (including the IME) and if the case cannot be proved up to the standards set forth above, the injured worker can be made to pay the carriers costs!
In researching the law of Master and Servant, which was so liberal as to cause employers to run, not walk, to state legislatures in the early part of the 20th century and beg for the enactment of employer protection acts (now called WC laws), I discovered that the Master/Servant relationship is a lot like the relationship of the seaman to the ship in Jones Act claims. If the worker gets injured on the job, the job must not have been a safe place to work. The duty to provide a safe place to work, to provide proper training, to provide adequate numbers of co-workers to do the job safely, to provide the proper supervision, to provide the proper equipment, to keep the number of hours worked to a reasonable number, are all duties, the breach of which can lead to responsibility for injury. HOW DAMNED HARD IS IT TO PROVE NEGLIGENCE IN MOST CASES?
Here in FloriBush plaintiffs in actions at law can use their group insurance for medical care. Not so with WC claimants. Plaintiffs can borrow against their recoveries while the case progresses, not so with WC claimants. Plaintiffs can sign retainer agreements providing for up to a 40% contingent fee, no so injured workers. Plaintiffs can use as many expert witnesses to prove their cases as the judge will allow. Compensation claimants get ONE expert. Plaintiffs can prove their cases by a preponderance of the evidence, workers compensation cases, of some types, require "clear and convincing" evidence. Plaintiffs can be paid for pain and suffering...shall I go on?
The following words are not mine, but they reflect my frustrations, my sentiment and my call for help at all levels:
"The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world...for depriving us in many cases, of the benefit of trial by jury..." Declaration of Independence, July 4, 1776.
The Bill of Rights (VII) requires trial by jury in all civil matters over $25.00 in value. But not for employees injured by their employers.
The Florida Constitution of 1838 and to the current:
"that the right to trial by jury shall be secure to all and remain inviolate". Except we can violate it if the rights of an injured worker are at stake.
Another of Jefferson's complaints against the King were that he made Judges dependent upon his will. In FloriBush compensation judges are just so. Chosen by a process that excludes the voters and excludes the Bar. And there is no qualifications committee to assist in their removal, only the Governor can do that.
If your life, liberty of your ability to make a living were in the balance, would you trust it to a Bush appointed Judge or to a jury? This question qualifies as a 'no-brainer'.
I can't do it alone. I can't make this outrage public alone. I can't file 50 suits challenging the constitutionality of all state workers' compensation laws alone. Neither can Florida Workers Advocates, and neither can WILG. But AAJ can. We must demand it. The system will not change until it is seriously challenged, either by the Federal Government enacting Federal Minimum Standards for State WC laws, or through the courts exposing WC laws for what they are, unnecessary, illegal and oppressive, all to the benefit of business at the expense of the citizenry.

Insurance Industry Antitrust Exemption

2007-02-20T12:45:00.000-08:00

The Republicans, of all people, have introduced legislation in the Senate with democratic support and expect bi-partisan legislation to be introduced in the House as well to remove the anti-trust exemption granted to insurance companies by the McCarran-Ferguson Act. This legislation, if passed will provide the States and the Federal government with the tools needed to rein in runaway rates and other abuses related to the claims handling business of insurance. This legislation is long overdue and should be supported by anyone who has to deal with the insurance industry. A more even playing field will result from passage. Please contact your senators and your representatives and advise them you support this bi-partisan legislation. The tide it is a-changing. 699 (days left in office for G.W. Bush)

A great loss

2007-02-15T18:26:00.000-08:00

Yesterday the workers' compensation community lost a valuable asset. We lost a gentle giant who represented the interests of injured workers for over 30 years. He was a great lawyer, a great friend to the workingman and a great family man. He will be missed more that one can imagine. He was bright and personable and one great lawyer. I had the privilege to work with him, learn from him and emulate him. David Harris Levine, rest in peace. My heartfelt sympathies to his family, his partners, his associates and his employees, all of whom loved him and will miss him very much.

National Minimum Standards and Hillary

2007-02-12T16:23:00.000-08:00

If injured workers are ever to regain their diginty without repeal of all workers' compensation laws, there must be a dialog and debate in congress about national minimum standards for state workers' compensation laws. Hillary can make this an issue. Either in the Senate or in the campaign or in the white house. I can get her ear and make sure she knows of the problems and the solutions. I need your contributions to make this pitch a reality. This is the best bi-partisan issue she can hook onto. A Nixon administration idea, a unanimous national commission report which included insurance companies, business, academia, labor and only the states agansnt it!
Please consider a contribution NOW, on your credit card at this site http://www.hillaryclinton.com/contribute/E6X7 even $100.00 makes a difference. Maximum is $4,600.00 to November 2008 per person.
Do it for yourself, for injured workers and the people yet to be injured on the job.

Request for Rule Repeal

2007-02-10T10:03:00.000-08:00

The following e-mail has been sent to the Chief Judge of DOAH, Bob Cohen and the Deputy Chief JCC, David Langham. You may want to weigh in yourself if you agree with the analysis.

ELECTRONIC MAIL bob_cohen@DOAH.state.fl.us, Judgelangham@yahoo.com
To:Chief Judge Robert Cohen, Deputy Chief Judge David Langham
From: Mark L. Zientz, Law Offices of Mark L. Zientz, P.A., Esquire
Reply to: mark.zientz@mzlaw.com
Matter: Rule 60Q-6.122(3) Rules of Procedure for Workers’ Compensation Adjudications (RPWCA) "A motion for rehearing does not toll the time within which an order becomes final or an appeal may be filed".
Date: January 22, 2007
COMMENTS: Hon. Cohen, It has come to my attention that the rule identified above as one of the RPWCA rules that migrated from the rules which were repealed by the Supreme Court (Rule 4.141(c) to be specific) is an unauthorized intrusion by DOAH into the area of appellate rulemaking. The DOAH rule also lacks statutory support and in fact the statute reserves the right to make such rules to the Supreme Court.
The DOAH rule creates a difference between civil appeals and workers’ compensation appeals. Jurisdiction of the 1 DCA must be invoked in civil cases 30 days from the date of the order or 30 days from resolution of a timely filed motion for rehearing, whichever is later. The DOAH rule limits the jurisdiction of the 1 DCA to appeals timely filed within 30 days of entry of the order with no additional time even if a proper motion for rehearing is filed.
You should also be aware of an unwritten rule which is enforced by the 1 DCA. That ‘rule’ requires a motion for rehearing to be filed upon pain of waiver of an issue not brought to the attention of the trial judge by motion for rehearing.
Rule 9.180(a) Appeal Proceedings to Review Workers’ Compensation Cases provides that appellate review of these cases shall be as in civil cases except as specifically modified in this rule. The rule contains no specific modification regarding the effect of filing a motion for rehearing, and no grant of authority for DOAH to modify the rule. The general rule is found in 9.020(h) Rules of Appellate Procedure, which delays rendition for appeal purposes until the motion for rehearing is disposed of by the trial court.
Section 440.25(5)(a) says, "Procedures with respect to appeals from orders of Judges of
Compensation Claims shall be governed by rules adopted by the Supreme Court. Such an order shall become final 30 days after mailing of copies to the parties, unless appealed pursuant to such rules. The DOAH rule has not been adopted by the Supreme Court, nor will the court do so.
In fine, it is respectfully requested that the current DOAH Rule 60Q-6.122(3) must be repealed immediately for lack of statutory support, as an intrusion into the jurisdiction of the Supreme Court, and for a lack of jurisdiction in DOAH to promulgate a rule bearing on appellate review.
Respectfully,
Mark L. Zientz
FBN 150168

2/9/07- Reader question answered

2007-02-09T10:49:00.000-08:00

February 9, 2007- Blogging Continues...
I was asked by a reader in response to my "New Analysis" whether or not any of the Attorney fee decisions relating to the 2003 act made any distinction between an "awarded" fee and an "approved’ fee.
So I went back and reviewed Lundy, Wood, Campbell, Duprey, Murray, and Buitriago.
Murray is still on Petition for Review in the Supreme Court just filed February 8, 2007 on the same certified question. The fee in that case was "awarded" using the strict statutory guideline.
Duprey is the case where the JCC "awarded" a fee greater than the fee schedule and the E/C appealed. That case was just decided by the 1 DCA February 5, 2007. The court reversed the JCC and said a fee "award" "must be based upon the value of the benefits actually obtained on behalf of the claimant". The court did not certify the same question or any question. In fact, the court awarded appellate costs to be paid by claimant to the E/C! Wayne Bilsky and Bill McCabe will be filing for rehearing and I have provided them with my "New Analysis" of the fee section should they choose to use it.
Wood was also an "award" of fees and the decision turned on the interpretation of the word ‘reasonable’.
Lundy dealt with the constitutional arguments related to the legislatures ability to limit fees in workers’ compensation cases. This case held, as I argue in my "New Analysis", that the JCC did not have authority to ‘approve’ a fee that exceeded the fee schedules.
Buitrago was another "award" of fees based upon the fee schedule.
Campbell was another "award" of fees in accordance with the fee schedule.
Lundy is therefore the only case that dealt with the JCC’s inability to "approve" a fee in excess of the guidelines. The other cases must be presumed to "award" fees that must be in accordance with the fee schedule when that is not the wording of the statute. An "award" of a statutory fee may still be presumed to be the correct amount unless one party or the other can demonstrate a "manifest injustice" and can prove that a higher or lower fee may be appropriate. It is the lower fee issue that got the attention of the court in Wood. The court said the statute "specifically prohibited a JCC from "awarding" a fee in excess of the percentage fee, but did not, with the same specificity, prohibit a lower fee". The court used the wrong word. It used "award" instead of "approve". And if a lower fee may be "awarded", what criteria are used to reduce the fee from the fee schedule?
I hope this answers the readers question.

Well here goes...Florida Workers' Compensation and Employer Liability Issues

2007-02-05T10:03:00.000-08:00

I'm new to this thing called "blogging". But I will admit it is rather exciting to know that I can write what I want to say and put it 'out there' for anyone who is interested to read. If you have something to say on any particular topic, e-mail me at this link and I will either reply, post your comment to the blog (with your written permission please), or ignore you entirely. I plan on adding to the blog on a three times a week schedule but that might be too ambitious and if so, I'll cut it down to one or two times per week. Check back often because breaking news in workers' compensation law will be reported as soon as possible.
Look for anything related to workers' compensation, employer liability and related issues to be discussed here. Here's my first post:

AWARD VS. APPROVE: A NEW ANALYSIS OF s.440.34(1)
Yesterday, in advance of my first attorney fee hearing on a post 10/1/2003 date of accident I did what I always do, I re-read the statute. I am one of those people who can look at a whole page of text and a misspelled word will jump off the paper and hit me between the eyes. This time it wasn’t a misspelled word that jumped out of s.440.34(1), it was a mis-used word. Or maybe a mis-interpreted word. The word was ‘approve’. So I looked at the next subsection, 440.34(2), here I found the word "award". "Award is missing from 440.34(1). And unlike (1) there is no fee schedule in (2).
I looked for a definition. Ch. 440 has no definition of ‘approve’ or ‘award’, so I went searching for the plain meaning that must be attributed to these common words. ‘Award’ is defined by Merriam - Webster as "to give by judicial decree or after careful consideration; to confer or bestow as being deserved or merited or needed". "Approve" is defined by Merriam - Webster as "to have or express a favorable opinion; to accept as satisfactory; to give formal or official sanction to".
S.440.34(1) only speaks of "approval". Approval of a joint stipulation, a stipulation or agreement of the parties, any other agreement related to benefits that provides an attorney’s fee in excess of the amount permitted by this section, or ‘approval’ of an "order". That last part gets me confused. What does approval of an "order" mean? I can only assume it is an "agreed order" on attorney fees. Nothing in s.440.34(1) prohibits the "award" of a fee in excess of the fee schedule, it only restricts "approval" of agreements presented to the JCC for sanctioning.
S.440.34(2) on the other hand speaks of an "award" of fees based upon benefits secured but no fee schedule or other method of measuring the amount of the fee is present. In s. 440.34(7) the legislature once again uses the word "approve" in connection with the one time medical only fee. That section says "if an attorney’s fee is owed under paragraph (3)(a), the JCC may "approve" an alternative attorney’s fee not to exceed $1,500.00 only once per accident, based upon a maximum hourly rate of $150.00 per hour...".
What I gleaned form all this inquiry was that the legislature was trying to protect the general public from excessive fees being negotiated by the parties to the disadvantage of the employers who pay premiums based upon the cost to their carriers of the claims they have. It also protects the injured workers from paying, by an agreement that they may not totally understand, an excessive fee for services rendered to their own attorneys. I can understand and respect those ideals. JCC’s may not and should not "approve" those types of agreements or enter those types of agreed orders. It would be wrong to allow such conduct in furtherance of remedial legislation.
But when the parties don’t agree that the schedule in s. 440.34(1) should apply and be approved, when judicial intervention is needed, (the Supreme Court has always said that setting the amount of an attorney fee is a judicial action, Lee Engineering v. Fellows , 209 So. 2d 454 (Fla. 1968), an "award" is needed. A judicial decree after careful consideration. Not by the mere application of a numerical percentage. Factors are specifically set up for the "award" of a reasonable fee. Those guidelines appear in Lee Engineering, and in Rule 4-1.5 of the Rules of Professional Responsibility for contingent fee cases. s.440.015 says the law must not be interpreted to favor either the Employee or the Employer/Carrier. Allowing unlimited defense fees while restricting claimants lawyers fees would be just such an unlawful interpretation. On appeal, the Court may award attorney fees which are not restricted by any fee schedule (440.34(5)). The DOAH is charged with measuring the performance of JCC’s by such factors as their "awards" of extraordinary fees (s.440.45)(4)).I assume that contemplates that such extraordinary fees can be awarded. But if a case is settled while on appeal, the district court will remand for the JCC’s "approval" of such settlement, including attorney fees amounts, (Rule 9.180(c)(3) Rules of Appellate Procedure).
As further proof that ‘award’ and ‘approve’ are different consider that the JCC may not "award" attorney fees for services performed (not benefits obtained) before the filing of a valid petition, (s.440.192 (7)). The legislature knows how to restrict an "award" of fees if it chooses to do so.
Has anyone else noticed that if the parties agree to arbitration and the JCC "consents" to the agreement, an arbitrator can "award" or "approve" an excess attorney fee and not be subject to appeal or reversal? (s.440.1926). Has anyone noticed that in utilization disputes the agency can "award" a health care providers attorney a reasonable attorney fee for prosecuting a petition? (s.440.13(7)(f)(3)). That means there are no fee schedule constraints for doctor’s attorneys, only injured workers attorneys, against the same employer/carriers?
So the case is made for a distinction between the "approval" of stipulated fees and the "award" of disputed fees. In the first instance a fee schedule applies, in the latter the good judgement of the JCC is called for, after consideration of the evidence required by the rules.
P.S. I tried my case. I made my argument. I am only left to wonder now whether I will be the Appellant or the Appellee.

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2007-02-04T14:59:00.000-08:00

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