NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
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.