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While there were not many changes to Florida’s workers’ compensation statute during our recent legislative session, there was one change which was significant and has already become law. In 1994 Florida passed a statute providing for the use of an expert medical advisor (EMA) in contested workers’ compensation cases. While there are a number of subsections which specify how the EMA process works, Fla. Stat. 440.13(9)(c) addressed when and how an EMA is to be appointed.
If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The injured employee and the employer or carrier may agree on the health care provider to serve as an expert medical advisor. If the parties do not agree, the judge of compensation claims shall select an expert medical advisor from the department’s list of certified expert medical advisors. If a certified medical advisor within the relevant medical specialty is unavailable, the judge of compensation claims shall appoint any otherwise qualified health care provider to serve as an expert medical advisor without obtaining the department’s certification. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims. The expert medical advisor appointed to conduct the evaluation shall have free and complete access to the medical records of the employee. An employee who fails to report to and cooperate with such evaluation forfeits entitlement to compensation during the period of failure to report or cooperate.
Over the course of almost 30 years the word “shall” in the statute was interpreted to make the appointment of an EMA mandatory giving the judge of compensation claims very little discretion. Appointments of an EMA have been most common in cases where authorization of a surgery was disputed, whether MMI was reached and applicable permanent restrictions. A presumption of correctness is attached to the EMA’s opinion and the report of the EMA automatically comes into evidence. The “clear and convincing” evidentiary standard was difficult to overcome despite many attorneys doing their best in deposing the EMA and extensively probing his or her opinions. Because the parties rarely could agree on the appointment of an EMA the JCC was required to appoint one. It often was a difficult chore if a specialist outside of orthopedics, neurology or neurosurgery was necessary. It was also difficult to find a doctor in some of Florida’s more rural areas.
Effective May 25, 2023 the word “shall” was replaced with the word “may.” This gives the JCC almost complete discretion to appoint an EMA in a disputed case. Particular attention will be paid to when an EMA is requested and whether the medical issue is fairly routine as opposed to something arcane and unusual. Because Florida’s workers’ compensation statute requires a final hearing to take place no later than 210 days after a petition is filed, fewer cases will now go past that deadline. It is expected that there will likely be a dramatic drop in the number of EMA’s appointed by our JCC’s.
In Florida, medical disputes before the Judge of Compensation Claims (JCC) are often handled with the appointment by the JCC of an Expert Medical Advisor (EMA). F.S. 440.13(9)(c) states in part:
If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor.
The opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC. Thus, the appointment of an EMA in effect takes the litigation out of the JCC’s hands and the opinion of the EMA will for the most part decide the disputed medical issues before him or her. The presumption of correctness only attaches to the opinions responding to the precise questions asked of the EMA.
The First District Court of Appeal which hears all workers’ compensation appeals in Florida, recently issued two decisions involving EMAs. The first case is ABM Industries, Inc. and ACE/ESIS v. Valencia, No. 1D20-2027 (Fla. 1st DCA 2021). In this particular case, the employer made an argument that the opinions of a physician chosen by the claimant through the one-time change of physician statute were not admissible. However, as a contingent argument, the employer argued that if the opinions of the claimant selected physician were admissible, then the JCC must appoint an EMA because the claimant’s new physician has conflicting medical opinions with the prior treating physician. The JCC after trial ordered that there was no dispute requiring the appointment of an EMA because it was not until the entry of judgment that the claimant’s new treating physician became authorized.
The First DCA reversed and rejected this reasoning as flawed as a matter of both logic and law. The appellate court held that the instant the JCC determined the claimant’s newly selected physician was authorized, it required the appointment of an EMA in light of the record conflict in the medical opinions. While not groundbreaking this holding is an extension of existing case law from the First DCA that it is mandatory the JCC appoint an EMA when a disagreement exists between the opinions of two healthcare providers. This is so even if the conflict becomes apparent after trial begins.
In another case, the Florida First DCA reaffirmed the necessity of appointing an EMA where conflicts in the medical evidence exist. In Shelton v. Pasco County Board of Commissioners, No. 1D20-3511 (Fla. 1st DCA 2021), the JCC did appoint an EMA who evaluated the claimant due to several conflicts in the medical evidence. At trial the JCC struck the EMA’s opinions based on a Daubert objection raised by the claimant. The claimant moved for the appointment of a successor EMA, which the JCC denied. The First DCA reversed the JCC once again holding that where conflicts exist in the medical evidence, an EMA must be appointed. The striking of the EMA’s testimony and report did not resolve those conflicts so an alternate had to be appointed. The end result was a remand with instructions to appoint an EMA for resolution of the conflicts in the medical testimony.
Robert J. Grace, Jr.
Bleakley Bavol Denman & Grace
15316 N. Florida Avenue
Tampa, FL 33613
 Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), codified at Section 90.702, Florida Statutes.
Over the last two years we have reported the continuing saga of the siege against the legislative reforms put in place between 2003 and 2009. We report this year that the siege continues in various ways but the big cases we have discussed in years past are largely resolved and not to the benefit of Employers/Carriers. We respectfully report on theCastellanos, Westphal, Miles, andStahl cases.
THE CASTELLANOS ATTORNEY’S FEE
CASE RESOLVED BY FLORIDA SUPREME COURT -
THE RESULT: THE FEE STATUTE RULED UNCONSTITUTIONAL
Castellanos v. Next Door Company, 124 So. 3d 392 (Fla.2016)
You may recall from our prior presentations that Florida Statute §440.34 governs the payment of attorney’s fees to claimant attorneys. From at least 1998 through the present §440.34 has set forth a sliding fee scale that promotes awarding fees via paying claimant attorney’s 20% of the first $5,000 in benefits the attorney secured, 15% of the next $5,000 in benefits secured, 10% of the benefits of the remaining benefits secured during the first 10 years, and 5% of the benefits secured after 10 years. Through 2002 §440.34 contained an alternative allowing the Judge of Compensation Claims (JCC) to “increase or decrease the attorney’s fee if, in her or his judgment, the circumstances of the particular case warrant such action” which was effectively leave to award a fee to claimant’s counsel utilizing the factors set out in Lee Engineering & Const. Co. v. Fellows, 209 So. 2d 454 (Fla. 1968). In 2003 the specific reference to theLee Engineering factors was removed but still allowed the JCC to award a reasonable fee. Legislative changes in 2009 removed the references for leave to award a “reasonable fee” thereby ensuring that the 20/15/10/5 fee scale was the only payment claimant’s counsel would receive.
The uproar and backlash from the claimant’s bar was quick and spawned considerable litigation includingMarvin Castellanos v. Next Door Company. The first Petition for Benefits was filed October 29, 2009. The final compensation order was issued on September 8, 2010. Thereafter various skirmishes occurred between the parties and ultimately a verified petition for attorney’s fees was filed by claimant’s counsel on May 11, 2011 and ultimately heard on July 3, 2012. The JCC awarded the fees that claimant’s counsel sought. An appeal was first taken to Florida’s intermediate First District Court of Appeal on July 30, 2012 and on October 23, 2013 the First District affirmed the ruling of the judge of compensation claims that there was no infirmity in the award of attorney’s fees to claimant’s attorney but certified the issue to the Florida Supreme Court.
Various filings commenced in The Florida Supreme Court on October 31, 2013 and jurisdiction was accepted on March 14, 2014. Amicus folks showed up in droves and finally on April 28, 2016 the Florida Supreme Court finally ruled on the Castellanos case. The ultimate outcome, distilled to its essence by the opinion’s initial paragraph, is this: “This case asks us to evaluate the constitutionality of the mandatory fee schedule in section 440.34, Florida Statutes (2009), which eliminates the requirement of a reasonable attorney’s fee to the successful claimant. Considering that the right of a claimant to obtain a reasonable attorney’s fee has been a critical feature of the workers’ compensation law, we conclude that the mandatory fee schedule in section 440.34, which creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and United States Constitutions as a violation of due process. See art. I, § 9, Fla. Const.; U.S. Const. amend. XIV, § 1.” The Court pointed out that in light of the benefits obtained for claimant, his attorney’s fee “amounted to only $1.53 per hour for 107.2 hours of work determined by the...JCC to be reasonable and necessary” in litigating this complex case.
For the time being this decision has returned the Florida workers’ compensation litigation atmosphere to what it was eight years ago. Whether or not the Florida legislature chooses to address this decision remains to be seen. In the interim, one of the interesting though problematic collateral issues now is the impact on employers that is likely to occur as a result of the unexpected reserve shortages suffered by the carriers. Now that fees for claimant counsel are back to the kinds of awards seen before the 2009 legislative changes carriers are potentially left with insufficient reserves to cover what we would expect to be higher financial exposure.
THE FLORIDA SUPREME COURT
FASHIONS A SOLUTION TO THE WESTPHAL PROBLEM
Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla.2016).
The Westphal case involved an issue involving temporary total disability benefits which, pursuant to Florida law (Florida Statute §440.15), cease to be available once the claimant has exhausted 104 weeks of benefits. In last year’s update we discussed that the Florida intermediate First District Court of Appeal en banc found, though in a less than unanimous decision, that a worker who remains totally disabled at the end of eligibility for temporary total disability benefits is deemed to be at maximum medical improvement as a matter of law and may immediately assert a claim for permanent total disability benefits.
The First District’s decision made its way to the Florida Supreme Court which, by majority, found that the 104 week limitation was “unconstitutional under article I, section 21, of the Florida Constitution, as a denial of right to access to courts, because it deprives an injured worker of disability benefits under these circumstances for an indefinite amount of time --- thereby creating a system of redress that no longer functions as a reasonable alternative to tort litigation.” The Court thus fashioned a different solution via a declaration that §440.15 in its then-present state was unconstitutional but could be saved, according to the majority opinion, by declaring the 104 week disability benefit cap to be unconstitutional and reviving the pre-1994 statute that provided for a limitation of 260 weeks of temporary total disability benefits. This solution effectively provided claimants who remained
temporarily totally disabled an additional two and a half years of such benefits in which to rehabilitate and recover from their injury and, hopefully, return to gainful employment.Westphal v. City of St. Petersburg, 194 So. 3d 311 (Fla.2016).
THE CASE OF MILES V. CITY OF EDGEWATER POLICE DEPARTMENT:
THE FLORIDA FIRST DISTRICT COURT OF APPEAL ADDRESSES
THE RIGHT OF A CLAIMANT TO CONTRACTUAL RELATIONSHIP WITH COUNSEL
190 So. 3d 171 (Fla. 1st DCA 2016)
Ms. Miles suffered four accidents, only one or perhaps two of which is/are pertinent to this presentation. After petitions for benefits were filed by claimant and subsequently denied by the employer/carrier, claimant’s attorney withdrew and dismissed the petitions. Thereafter, two retainer agreements were executed:
1. One between claimant’s attorney and claimant’s union for payment by the union to claimant’s counsel of a flat fee of $1,500 to represent claimant, and
2. One between claimant and her attorney for payment of any fees beyond the $1,500 retainer provided by claimant’s union, in which case she would pay him an hourly fee for all work done after the union’s flat fee was consumed. She further noted in this agreement that she was made aware of the fact that Florida workers’ compensation law prohibits the fee agreement she entered into, specifically waived those statutory prohibitions, and stated that she entered into the agreement with understanding that she might not prevail.
Thereafter litigation ensued with claimant maintaining she had suffered exposure accidents in the course and scope of employment and the employer/carrier saying otherwise. At that point claimant’s attorney filed a motion seeking approval of both retainer agreements which alleged that “it would not be economically feasible for [her] to continue on a purely contingent basis with fee restrictions as contained in Florida Statute §440.34.” She concluded by certifying that if the JCC denied the retainer fee then his firm would possibly have no choice but to withdraw. An evidentiary hearing was convened at which, distilled to its essence, claimant’s counsel stated that “it is unreasonable to ask an attorney to basically work for free.” The Judge of Compensation Claims denied both retainer agreements as contrary to the governing law under Chapter 440, Florida Statutes. With claimant’s attorney asserting a conflict of interest due to the retainer issues she withdrew and claimant proceeding to hearing without counsel. The JCC denied and dismissed both petitions for benefits.
Florida’s First District Court of Appeal noted that (1) Florida Statute §440.105(3)(c) renders it is first degree misdemeanor for a Florida attorney to accept a fee that is not approved by the JCC pursuant to §440.34(1) and (2) fees to a claimant’s attorney are statutorily required to be tied only to benefits the attorney secures for his/her client. The appellate court here noted that this situation involved an as-applied challenge regarding the constitutionality of the Florida fee statute. After working its way through analysis of freedom of speech and freedom to contract principles the appellate court stated as follows (in pertinent part): “...the restrictions in sections 440.105 and 44.34, when applied to claimant’s
ability to retain counsel under a contract that calls for the payment of a reasonable fee by a claimant (or someone on his or her behalf), are unconstitutional violations of a claimant’s right to free speech, free association, and petition....as well as to form contracts...[t]hus we hold that the criminal penalties of section 440.105(3)(c)...are unenforceable against an attorney representing a workers’ compensation client seeking to obtain benefits under Chapter 440..”
NOT TO SAY IT IS THE FIRST TIME THIS HAS
EVER HAPPENED BUT IT VERY WELL MIGHT BE:
CLAIMANT COUNSEL APPEALS STATE WORKERS’
COMPENSATION CASE TO THE UNITED STATES SUPREME COURT
Daniel Stahl v. Hialeah Hospital and Sedgwick Claims Management
Petition for Writ of Certiorari / United States Supreme Court / Case No. 16-98
Mr. Stahl suffered a workplace accident on December 8, 2003. Workers’ compensation litigation commenced July 12, 2004 and persisted until Florida’s First District Court of Appeal issued its written opinion on March 25, 2015 and its mandate on April 30, 2015. During that period the case had made its way to the First District Court of Appeal several times without there ultimately having been a resolution acceptable to claimant. The court, having seen a number of appellate filings in this claim over the years, issued an opinion March 25, 2015. The court set out the issues as follows: did (1) the 1994 addition of a $10 copay for medical visits and (2) the 2003 elimination of permanent partial disability benefits render Florida’s workers’ compensation law an inadequate exclusive replacement remedy for a tort action. The appellate court found that it did not, stating that “[w]e disagree, because both amendments withstand rational basis review, in that the copay provision furthers the legitimate stated purpose of ensuring reasonable medical costs after the injured worker has reached a maximum state of medical improvement, and PPD benefits were supplanted by impairment income benefits. Thus the appellate court affirmed the decision of the Judge of Compensation Claims.
Stahl’s Petition for Certiorari to the United States Supreme Court posits three issues: (1) whether the U.S. Supreme Court should exercise its jurisdiction to review Stahl’s case based on the proposition that the “Grand Bargain” is no longer a bargain; (2) whether Florida’s workers’ compensation law deny injured workers due process by establishing an arbitrary system that provides inadequate benefits; and (3) does the Florida workers’ compensation system provide an insignificant level of benefits so as to violate the United States Constitution’s Fourteenth Amendment’s substantive due process requirement. The Petition for Certiorari itself covers 35 pages with an appendix that covers the Stahl and Westphal cases discussed above. Whether, what and when the U.S. Supreme Court will take its next action remains to be seen. As of the drafting of this discussion, claimant’s petition for writ of certiorari, three amicus curiae briefs, and an order extending time for a response to the petition to September 21, 2016.
Use of the Daubert Standard in Florida WC Cases Mandatory, Not Aspirational
In an appeal taken from the workers’ compensation claim of Perry v. City of St. Petersburg, OJCC Case No. 12-027434,Florida’s First District Court of Appeal has confirmed that it does not view Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) to be anything but mandatory. Though 20 years after the fact, Florida adopted theDaubert standard in 2013; it is found in Florida Statute §90.702 and pretty much follows the text of the federal rule. One interesting exception: peer review and publication never made it into the criterion of §90.702.
The backstory: Ms. Perry suffered a compensable right hip injury while at work in 2012. She received medical care and ultimately declared to have reached maximum medical improvement with no permanent physical restrictions regarding the hip injury. She exercised her right to an independent medical exam and secured an opinion that she had accident-related perineural cysts of the lumbar spine. The employer/carrier secured their own independent medical exam and the contrary opinion that although there were lumbar cysts they were not caused by or related to the accident. Ms. Perry lodged a Daubertobjection to employer/carrier’s IME report. The employer/carrier, obviously aware of the disparate opinions of the parties’ respective IME opinions, moved to appoint an “expert medical advisor”, essentially Florida’s version of God when it comes to a final medical declaration when there is a conflict in medical opinions that must be resolved. Claimant moved to strike the opinions of employer/carrier’s IME report based onDaubert.
The Judge of Compensation Claims denied the employee’s motion to strike and granted the employer/carrier’s motion for appointment of the expert medical advisor. His reasoning was that the purpose ofDaubert/§90.702 was “to protect a jury from seeing or hearing evidence which is inadmissible because it is not based on scientific reliability. The trial judge, in a jury situation, is the gatekeeper for establishing reliability rather than simply taking the expert’s word for it. However, this is a Workers’ Compensation claim where the [JCC] is both the judge and the jury. The JCC sees and rules on all objected evidence. There is no insulation between the JCC and the opinions of experts.” Having set that up, the JCC went on to note that “[r]ealistically, the vast majority of all medical experts ultimately rely on their experience and training in formulating their opinions in a Workers’ Compensation claim. It is unusual for medical experts in workers’ compensation claims to point to treatises, books, studies, graphs, etc....[they] review past medical records, examine the claimant, review diagnostic studies, and give their opinions based on that evidence. Conceivably, use ofDaubert as a means to reject medical opinion testimony in a Workers’ Compensation case may mean that there may almost never be an admissible opinion of a medical expert in a Workers’ Compensation case.” He then went on to note that under the circumstances of this particular set of facts, all he was doing was judging whether there was an apparent conflict in the opinions of the two independent medical examiners sufficient enough to have the expert medical advisor appointed make the final medical opinion. It seems to me, at least, that the JCC’s point in this particular scenario makes perfect sense.
Florida’s First District Court of Appeal (“1st DCA”) did not agree. It reversed and remanded the case to the JCC to apply theDaubert standard which the JCC had, as described above, declined to do. In its brief opinion, the 1st DCA reiterated the applicability ofDaubert and referred the JCC toBooker v. Sumter County Sheriff’s Office/North American Risk Services, 166 So. 3d 189 (Fla. 1st DCA 2015) for the specifics regarding theDaubert analysis. Given that inBooker the 1st DCA had noted that “[t]he test for admissibility, given its broad application to all manner of expert opinion testimony, must be flexible” and went on to provide “some of the flexible and non-exclusive factors which a judge may consider” (emphasis added), perhaps all the JCC needed to do was say that he consideredDaubert and accepted the employer/carrier’s independent medical examination report as sufficiently trustworthy. It does, nevertheless, appear that the 1st DCA intendsDaubert to be applied in every instance in which an expert’s opinion is not otherwise deemed admissible without its application.
Florida Appellate Court Overturns Circuit Court’s
Prior Declaration that the Exclusive Remedy Provision of the Workers
Compensation Act Is Unconstitutional
In our report from June, 2015 we discussed the order of a trial judge declaring Florida’s workers’ compensation law in its entirety (Chapter 440, Florida Statutes) to be unconstitutional so long as §440.11, Florida’s exclusive remedy provision, remained a constituent part of the law as a whole. We are pleased to report that our Third District Court of Appeal reversed the final summary judgment declaring the unconstitutionality on two bases. First, the appellate court found that procedurally the original case was moot secondary to the employer/carrier’s dismissal of its own affirmative defense of workers’ compensation immunity. Second, the appellate court found substantively that “the trial court lacked a justiciable case or controversy within which to determine, and the [various groups seeking the decimation of exclusive remedy] lacked standing to assert, that the challenged provisions of the Florida Workers’ Compensation Law are unconstitutional.”
Subsequent to the Third District’s opinion, which can be found on Westlaw at 2015 WL 3875442, the advocates in favor of unconstitutionality filed a notice of discretionary jurisdiction with the Florida Supreme Court on July 7, 2015 and the same was acknowledged by the Court on July 10, 2015. A motion by the advocates to stay the Third District’s opinion pending further review was denied by the Florida Supreme Court on July 22, 2015. As of this update, there has been no indication from the Court whether it will accept discretionary jurisdiction.
Florida’s Attorney’s Fee
Structure Ruled to be Non-Cumulative
The well-known battles over the changes to Florida’s workers’ compensation attorney fee statute that began in 2003 have spawned a seemingly endless array of strategic challenges. One such challenge was unique in that it was not the result of efforts by the claimants’ bar like those we have previously reported. Rather, it was a judge of compensation claims’ interpretation of our fee provision. Distilled to its essence, Florida allows claimant attorneys to be paid a fee equal to 20% of the first $5,000 in benefits secured, 15% of the second $5,000 in benefits, and then 10% of all benefits afterward. The judge of compensation claims ruled that the 20% and 15% fee payments could only be secured by a claimant attorney once, and not each time a claim was filed. InCortes-Martinez v. Palmetto Vegetable Co., LLC, 159 So.3d 934 (Fla. 1st DCA 2015), the First District Court of Appeal reversed the judge of compensation claims, essentially finding that there were constitutional implications flowing from such a determination and thus declaring that the avoidance of a constitutional issue was paramount. Accordingly, the 20/15/10 structure applies to each distinct set of claims. See alsoUrguelles v. El Oasis Café, 162 So.3d 1057 (Fla. 1st DCA 2015).
Medical Care After Maximum Medical
Improvement Still Requires Proof of Medical Necessity
That palliative care remains available to a claimant after reaching maximum medical improvement is well established in Florida. See, e.g.,Homler v. Family Auto Mart, 914 So.2d 1071 (Fla. 1st DCA 2005). However, in the recent case ofEchevarrria v. Luxor Investments, LLC, 159 So.3d 991 (Fla. 1st DCA 2015), the First District Court of Appeal ruled that the claimant must still establish by evidence that the palliative treatment is medically necessary, i.e. “medical service or medical supply which is used to... or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature.”The confirmation that medical necessity remains a required element for post-maximum medical improvement care is important in light of the fact that a zero impairment rating seems fundamentally at odds with any further need for medical treatment.
First District Court of Appeal Takes On Gamesmanship
Florida workers’ compensation law allows a claimant to secure a single one-time change of physicians pursuant to Florida Statute §440.13(2)(f). Provided that the employer/carrier responds to that request within 5 days after receipt of the request, the employer/carrier gets to choose the physician for claimant’s one-time change. If they do not timely respond, claimant gets to choose who the new physician will be. InGonzalez v. Quinco Electrical, Inc., 2015 WL 4256794 (Fla. 1st DCA 2015) (presently not released for publication in permanent law reports), the First District Court of Appeal addressed the issue of gamesmanship involving a one-time change request. According to the appellate opinion, claimant’s counsel first officially appeared of record via a petition for benefits. Three weeks later he filed a “Notice of Appearance.” The petition for benefits did not mention anything about wanting a one-time change. The Notice of Appearance, however, was described by the court as having, on the second page of the notice, “a request for a one-time change of treating physician pursuant to section 440.13(2)(f).” The court also noted that [c]ounsel admitted before the [judge of compensation claims] that he “took advantage of” his belief that adjusters do not always read in full every document they receive. Counsel for the employer/carrier did not catch the one-time change request until the sixth day after the Notice of Appearance was received. The judge of compensation claims rejected the assertion that the employer/carrier was late in responding given the circumstances. The First District noted that such gamesmanship is contrary to the legislative mandate of a self-executing system and rather firmly addressed the conduct in question.
Castellanos & Westphal
No decision from the Florida Supreme Court on either case. In Castellanos claimant’s appellate counsel continues to file Notices of Supplemental Authority in what is most likely an effort to push their agenda. InWestphal a single Notice of Supplemental Authority has been filed in 2015. Otherwise, there is no discernible activity.
I reported last year on the cases summarized below and all three in one way or another have involved an attack on the constitutionality of all or portions of Florida’s workers’ compensation laws. Since the last report these cases have made their way through the appellate process and we now await the decisions of the Florida Supreme Court for all three. The current status is summarized below.
Florida State Circuit Court Judge Determines the Exclusive
Remedy Provision of the Workers Compensation Act Is Unconstitutional
On August 13, 2014, a circuit civil court judge in Miami-Dade County entered an Order on Amended Motion for Summary Final Judgment in the case ofFlorida Workers’ Advocates & Elsa Padgett v. State of Florida. Procedural issues resulted in what was essentially an unopposed lawsuit filed by the injured worker’s attorney. The order declared Florida’s workers’ compensation law in its entirety (Chapter 440, Florida Statutes) to be unconstitutional so long as §440.11 remains a constituent part of the law as a whole.
Plaintiffs’ argument in Padgett is neatly distilled by their own words: “Your movant's main complaint is that if an injured worker, after reaching maximum medical improvement has a loss of wage earning capacity that is not total in character it will go uncompensated under the 2003 Florida Act. The injured worker would have had to wait until he reached maximum medical improvement and tested the labor market before he knew that he not only had the right to be compensated for his disability but that he would not get any benefit for his loss in the workers' compensation scheme. Padgett, FWA and WILG pray for a judgment holding the exclusive remedy provision ins. 440.11 Fla. Stat. 2003 invalid and unconstitutional so that all injured workers in Florida may have the option of either a tort or a workers' compensation recovery at the outset.”
Unimpeded by the absence of a defense, the Padgett trial court concluded that the legislative changes to Chapter 440 that began a shortly after Florida’s 1968 Constitution was enacted and continued sporadically through the 2009 legislative session have removed rights without offering equivalent alternatives thereby violating the mandate of Florida’s 1968 state Constitution. This resulted in the court’s declaration that:
“As a matter of law, Chapter 440, effective October 1, 2003 is facially unconstitutional as long as it contains §440.11 as an exclusive replacement remedy. I find that the Florida Workers’ Compensation Act, as amended effective October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. §440.11 is constitutionally infirm and invalid. IT IS ORDERED AND ADJUDGED, that Declaratory Relief is GRANTED. Judgment is entered for Petitioners/Intervenors. §440.11 Fla. Stat. 2003 is unlawful, invalid and unconstitutional.”
With no defense to better inform the trial court judge, the outcome was probably inevitable.
Normally an appeal of a case involving workers’ compensation benefits would go to Florida’s First District Court of Appeal as it is the intermediate appellate court to which all appeals from decisions of a judge of compensation claims must go for review. However, because this case was not specifically about particular workers’ compensation benefits but rather an effort to wage an attack on the constitutionality of legislative changes to Chapter 440 (including attorney’s fees payable to claimant lawyers in workers’ compensation claims), the appeal from the trial court was to Florida’s Third District Court of Appeal instead. The case number is 3D14-2062. The appeal has been fully briefed as of March 13, 2015 and oral argument was held on March 30, 2015. Participation in the appeal was, as would be expected, considerably more populated than in the trial court with numerous amicus appearing on behalf of one side or the other. We anticipate a decision within the next six months.
Rob Grace, however, has twice prevailed in trial court on similar claims, including one brought by the same plaintiff attorney in the same jurisdiction asPadgett was brought. Rob secured a dismissal of the claims both times and his victory inDigrius v. Anchorage Resort & Yacht Club (16th Judicial Circuit Case No. CAP13998 / 442013CA000998A001PK) is now on appeal with the very same Third District Court of Appeal that has thePadgett case. The appeal was filed March 31, 2015 and thus remains in infancy stages. We expect that various amici will appear for both sides and that resolution will be later this year or early next year.
Employers Be Careful About Denials Based on
Course and Scope, Employment Relationship or Inconsistent Positions
The attacks on Florida’s workers’ compensation exclusive remedy provision are not limited to cases likePadgett where the objective is a wholesale destruction of Chapter 440. As with most if not all workers’ compensation systems, Florida law requires that the accident and resulting injury(ies) arise out of the course and scope of employment for Chapter 440 to apply. When the employer/carrier responds to a claim with the assertion that the accident and/or injury is not connected to the course and scope or they assert denials that are inherently at odds (i.e. no course and scope coupled with defenses based on employment), they can be relatively certain that a civil suit will follow and that an estoppel analysis will be undertaken by the trial, and most likely later the appellate, court.
Picon v. Gallagher Bassett Services, Inc., 548 Fed.Apps. 561 (11th Cir. 2013) does an excellent job of reviewing eight Florida appellate court cases in which the exclusive remedy was involved. Of the eight cases, six were decided favorably to the injured employee and two favorably to the employer/carrier. The six cases that favored the injured employees involved assertions by the employer/carriers that no accident happened in the “course and scope of employment” either standing alone or combined with other defenses inconsistent with the course and scope of employment denial. See, e.g.,Elliott v. Dugger, 542 So.2d 392 (Fla. 1st DCA 1989); Byerly v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999);Schroeder v. Peoplease Corp., 18 So.3d 1165 (Fla. 1st DCA 2009); Coastal Masonry v. Gutierrez, 30 So.3d 545 (Fla. 3d DCA 2010);Mena v. J.I.L. Construction Group Corp., 79 So.3d 219 (Fla. 4th DCA 2012);Ocean Reef Club, Inc. v. Wilczewski, 99 So.3d 1 (Fla. 3d DCA 2012)(for case distinguishingOcean Reef see VMS, Inc. v. Alfonso, 147 So.3d 1071 (Fla. 3d DCA 2014)).
The two cases that favored the employer/carriers did not have such an assertion. SeeTractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007); Coca-Cola Enterprises, Inc. v. Montiel, 985 So.2d 19 (Fla. 2d DCA 2008).
Thus, it is fair to say that if/when an employer/carrier chooses to assert that the alleged accident was not connected to the “course and scope” of the employee’s employment there will likely be a tort suit following and the employer/carrier is equally likely to find themselves losing any motion for summary judgment based on the workers’ compensation exclusive remedy principle. Instead, a judge or jury will make the decision after completion of a full blown trial because, as thePicon court noted, “[w]hen the record reveals multiple possible explanations for the denial, or the language in the denial document is ambiguous and gives rise to more than one interpretation, issues of material fact exist over whether the employer’s position is inconsistent so as to indicate possible estoppel.”
Landmark Attorney Fee Case Makes its way to Florida Supreme Court
Marvin Castellanos vs. Next Door Company, Et Al.
Florida Supreme Court Case No. SC13-2082
Lower Tribunal Case Citation 124 So. 3d 392 (Fla. 1st DCA 2013)
This is the case which the Florida Supreme Court has for review on discretionary jurisdiction in which the 2009 attorney’s fee statute (Florida Statute §440.34) was declared constitutional by Florida’s First District Court of Appeal but certified to involve a question of great public importance. The appeal was filed in October, 2013, briefed by the parties and various amicus, and oral argument conducted on November 5, 2014. Since that time, notices of supplemental authority have been filed with the Florida Supreme Court, mostly providing additional one paragraph decisions from Florida’s First District Court of Appeal passing along similar cases with essentially identical opinions. The approach in this case, as in others like it, is a broad deployment of various theories such as violations of constitutional rights of separation of powers, right to be rewarded for industry, free speech, free association, due process, and equal protection. It also makes the argument akin to what was deployed in theFlorida Workers’ Advocates case summarized above, i.e. the cumulative effect of changes has stripped Chapter 440 of benefits in a way that no longer provides a reasonable alternative to common law negligence remedies. Our firm handled the appeal on behalf of the Employer/Carrier in a similar case which has been stayed by the Florida Supreme Court, pending resolution ofCastellanos, after being affirmed per curiam by the First District Court of Appeal.
With the appellate process having ended six months ago, other than the supplemental authority filings, we expect something to happen relatively soon. There has been some discussion of convening a special legislative session aimed at trying to get the various parties to agree to a solution that would avoid the possibility of a constitutional ruling on §440.34. As of this update, this possible effort remains ill-defined and uncertain. If there is no legislative intervention, then the Court will ultimately issue its decision. What that decision will be and what, if anything, the Court might do to cure any perceived constitutional infirmity is anyone’s guess. It is most unlikely that the entire statute would be scrapped, and more likely that the Court might roll back to the latest version of the statute that the Court finds to not be problematic, to simply engraft Florida’s seminal case on reasonable attorney’s fees on to the current statute (Lee Engineering & Const. Co. v. Fellows, 209 So. 2d 454 (Fla. 1968)), or to fashion another remedy which does not visit chaos upon the system. I represented the E/C/SA one of the many companion cases toCastellanos.
First District First Strikes, Then On Reconsideration Upholds, Florida’s
104 Week Limit On Temporary Benefits – Now Before Florida Supreme Court
Bradley Westphal v. City of St. Petersburg, Etc., Et Al.
Florida Supreme Court Case No. SC13-1930 & 1976
Lower Tribunal Case Citation 122 So. 3d 440 (Fla. 1st DCA 2013)
Florida’s workers’ compensation law provides for wage loss benefits comprised of (1) temporary partial disability benefits (TPD) payable when the employee cannot work regular duty but can work modified duty; (2) temporary total disability benefits (TTD) when the employee cannot work at all but is expected to be able to return to work; (3) permanent impairment benefits which were intended to provide monetary compensation for a permanent impairment of working skills; and (4) permanent total disability benefits (PTD) payable when an employee is unable to work at least sedentary duty within a 50 mile radius of his or her home. See Florida Statute §440.15. Benefits #1 and #2 are available onlybefore a claimant is at overall MMI and the claimant cannot get more than 104 weeks of these benefits combined. Benefits #3 and #4 are available onlyafter a claimant is at overall MMI.
The same judge of compensation claims assigned to Mr. Westphal’s claim had previously been assigned a very similar claim and in the previous claim had concluded that “that the Legislature did not intend to leave a claimant such as Mr. Hadley out in the cold with no basis for indemnity benefits when that worker is totally disabled for more than 104 weeks.” He therefore declared that claimant to be entitled to permanent total disability benefits even though the claimant was not at MMI. This resulted in an appeal and ultimately an opinion from the First District Court of Appeal en banc reversing the judge of compensation claims and ruling that the benefits gap was not an infirmity. SeeMatrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011).
Faced with the same issue in Mr. Westphal’s case the judge of compensation claims followed the mandate ofMatrix Leasing and denied PTD benefits to Mr. Westphal. From this decision Mr. Westphal’s case moved to the First District Court of Appeal. The First District initially issued an opinion that was consistent withMatrix Leasing. The Court then reconvened en banc, withdrew the previous opinion, receded fromMatrix Leasing, and ruled that “a worker who is totally disabled as a result of a workplace accident and remains totally disabled by the end of his or her eligibility for temporary total disability benefits is deemed to be at maximum medical improvement by operation of law and is therefore eligible to assert a claim for permanent and total disability benefits.” In so doing, theWestphal court said it was “unnecessary to consider the claimant’s argument that the statute, as we previously construed it inHadley, is unconstitutional as a denial of the right of access to the courts.”
The case is now with the Florida Supreme Court. It was fully briefed as of March 26, 2014 and oral argument was held June 5, 2014. Given the time the case has been pending before the Court post-oral argument, it would seem reasonable to expect a decision sooner rather than later.
David A. Lamont, Esquire
Workers’ Compensation Partner, The Bleakley Bavol Law Firm