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.
Wednesday, March 4, 2009
POST TRAUMATIC STRESS DISORDER
Post Traumatic Stress Disorder (PTSD) is epidemic among returning GI's from Afghanistan and Iraq. PTSD has been around since the Civil War. After WW I it was called "Shell Shocked". It was noted after WWII as "Battle Fatigue". The Korean War and The Vietnam War produced more victims. Even after Desert Storm soldiers were treated for it. Now the wars in Iraq and Afghanistan bring the subject of PTSD to the front pages of newspapers on a daily basis and the VA is having trouble treating PTSD and compensating our warriors for it.
But, no matter how horrific the mental trauma at work in Florida, without a real physical injury as a basis for PTSD, there is no compensation or medical care for it. Same in Minnesota. I tried as best I could a few years back to prove to a Judge of Compensation Claims (JCC) that PTSD was not only a mental injury but in fact, a true physical injury to the brain itself. Scientific proof exists that when a person is exposed to a life threatening event, even without physical injury, the body creates very strong chemicals which circulate in the brain. These chemicals are designed to trigger the "fight or flight" mechanism that helps protect us. In addition, the chemicals destroy brain cells in a specific portion of the brain which can show a decrese in size on sophisticated MRI scans.
I was unable to do for my client what Mark Rogers, Mike Garbo and Yuri Jekelov did for their client. They successfully proved that PTSD is a symptom of a physical injury to the brain.
Math Teacher Missy Dodds was present when a gunman entered her classroom at Red Lake High School in Bemidji, Minn. and killed several students and a teacher before aiming the gun at Missy. The gun was out of ammunition so it didn't fire. Later the gunman killed himself. Missy was left with PTSD but no real physical injury to her as the cause. The cause was evident. It took years of work, many thousands of dollars in attorney time and costs, but the Rogers law firm prevailed after a 6 day trial.
Workers' Compensation Judge Gary Mesna ruled the PTSD compensable without accompanying physical injury by finding the PTSD was in and of itself, a physical injury to the brain.
Kudos to the Rogers firm for taking the risk for Missy, and in a sense, for all work related PTSD claimants.
But, no matter how horrific the mental trauma at work in Florida, without a real physical injury as a basis for PTSD, there is no compensation or medical care for it. Same in Minnesota. I tried as best I could a few years back to prove to a Judge of Compensation Claims (JCC) that PTSD was not only a mental injury but in fact, a true physical injury to the brain itself. Scientific proof exists that when a person is exposed to a life threatening event, even without physical injury, the body creates very strong chemicals which circulate in the brain. These chemicals are designed to trigger the "fight or flight" mechanism that helps protect us. In addition, the chemicals destroy brain cells in a specific portion of the brain which can show a decrese in size on sophisticated MRI scans.
I was unable to do for my client what Mark Rogers, Mike Garbo and Yuri Jekelov did for their client. They successfully proved that PTSD is a symptom of a physical injury to the brain.
Math Teacher Missy Dodds was present when a gunman entered her classroom at Red Lake High School in Bemidji, Minn. and killed several students and a teacher before aiming the gun at Missy. The gun was out of ammunition so it didn't fire. Later the gunman killed himself. Missy was left with PTSD but no real physical injury to her as the cause. The cause was evident. It took years of work, many thousands of dollars in attorney time and costs, but the Rogers law firm prevailed after a 6 day trial.
Workers' Compensation Judge Gary Mesna ruled the PTSD compensable without accompanying physical injury by finding the PTSD was in and of itself, a physical injury to the brain.
Kudos to the Rogers firm for taking the risk for Missy, and in a sense, for all work related PTSD claimants.
Monday, March 2, 2009
WHERE ARE THE COPS, PART II
I have heard that some cops are lurking outside the offices of defense counsel while claimant depositions take place inside. They are there at the behest of the employer/carrier to effectuate an arrest of the claimant at the conclusion of the proceeding, for being in the country illegally. But maybe a recent decision will have the cops lurking outside defense counsels offices for another reason.
The first DCA, in a written opinion issued February 19, 2009 described a situation in which a claimant's lawyer tried to obtain a ruling from the JCC that required the JCC to approve the defense firms fees. The effort failed at the trial level and failed again on appeal. The DCA could have used the dreaded "PCA" and nothing more would have happened. The opinion in Altstatt v. Florida Department of Agriculture, instructs us that no fee paid in connection with a workers'compensation matter has to be approved by the JCC pursuant to 440.105(3)(c)(2008). Rather the section "merely makes it unlawful to receive a fee unless that fee has been approved".
I guess the court, by refusing to rule on whether the legislatures intent was to have attorneys representing the employers, carriers and servicing agents have their fees approved, have decided to leave that up to the criminal courts. So the next time you see the cops lurking outside a defense firms offices, it may not be to arrest the claimant.
The first DCA, in a written opinion issued February 19, 2009 described a situation in which a claimant's lawyer tried to obtain a ruling from the JCC that required the JCC to approve the defense firms fees. The effort failed at the trial level and failed again on appeal. The DCA could have used the dreaded "PCA" and nothing more would have happened. The opinion in Altstatt v. Florida Department of Agriculture, instructs us that no fee paid in connection with a workers'compensation matter has to be approved by the JCC pursuant to 440.105(3)(c)(2008). Rather the section "merely makes it unlawful to receive a fee unless that fee has been approved".
I guess the court, by refusing to rule on whether the legislatures intent was to have attorneys representing the employers, carriers and servicing agents have their fees approved, have decided to leave that up to the criminal courts. So the next time you see the cops lurking outside a defense firms offices, it may not be to arrest the claimant.
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