The Bar Workers’ Compensation Section

NewsNews && 440440 ReportReport

John “Jake” Schickel 2011 recipient of the Frierson-Colling Professionalism Award for demonstrating outstanding leadership and professionalism Volume XXX, No. 2 Winter 2011 News & 440 Report

In This Issue Message from the Chair...... 3 Editor’s Corner...... 4 The NEWS AND Letter to the Editor:...... 5 FOUR-FORTY REPORT Letter to the Editor: If It Is To Be, It Must Be Me...... 6 is published by The Florida Bar Guest Editor’s Comments: Can’t We All Just Get Along?...... 8 Worker’s Compensation Section Looking Back: Remarks by Richard W. Ervin...... 10 The First District Court of Appeal and its Exclusive Appellate Jurisdiction Chair Over Workers’ Compensation Cases...... 16 Richard Thompson, Sarasota A Defining Moment...... 21 Inadvertent Disclosure of Privileged Material...... 25 Chair-elect Jeffrey Jacobs, South Miami Florida Insurance Commissioner Issues Order with Respect to NCCI’s Workers’ Compensation Rate Filing...... 27 Secretary Governor Appoints Two, One Retires, One Moves to Circuit, Jacqueline Blanton Steele, Sarasota and a Final Goodbye...... 34 The Florida Bar Foundation: A Cause We Can Share...... 36 Treasurer Alan Kalinoski, Orlando Statute of Limitations: Remedial care...... 38 Signatures sought for Jake Schickel’s Bar Presidential Campaign...... 39 Immediate Past Chair Attacks on Workers’ Compensation Immunity Increase Both Richard Chait, Miami Workers’ Compensation and Liability Exposures...... 40 Have an OCD Worker?...... 47 Editor-in-Chief The Simplicity (or lack thereof) of Changing Physicians...... 49 Michael J. Winer, Tampa Reminders for the Effective Advocate...... 51 Program Administrator Case Law Update...... 55 Arlee J. Colman, Tallahassee

Layout Lynn M. Brady, Tallahassee Section Calendar

All correspondence and letters to the editor should be addressed to: February 8, 2011 Workers’ Compensation Telephonic Seminar Critical Errors in Trying Your Case Michael J. Winer Tuesday, 12:00 noon – 1:30 p.m. Editor-In-Chief 110 N. 11th St. Fl 2 March 8, 2011 Workers’ Compensation Telephonic Seminar Tampa, FL 33602-4223 Tuesday, 12:00 noon – 1:30 p.m. E-mail: [email protected] April 12, 2001 Workers’ Compensation Telephonic Seminar Tuesday, 12:00 noon – 1:30 p.m. Statements or expressions of opinion or comments appearing herein are those of May 19-21, 2011 Section Executive Council Out of State Meeting the editor(s) and contributors and not The Roosevelt, New Orleans of The Florida Bar or the Section. August 23, 2011 FWIC Conference - Orlando Section Executive Council Meeting and Elections

For more details, visit www.flworkerscomp.org.

Workers’ Compensation Section 2 News & 440 Report Message from the Chair By Rick Thompson, Esq., Sarasota

Greetings. Since my last report The Kauffman case was argued before the court on Jan- to you in the fall, your Executive uary 13, 2011. BF has not been set for oral argument, Council has been very busy. We but it has been briefed. Your Section filed amicus briefs recently conducted our annual in both cases and I would like to take this opportunity meeting in Miami where all of to thank those members of the Executive Council who your committee chairs gave up- worked so hard in writing what I believe to have been dates as to their ongoing work. very good and fair briefs supporting our legislative I am pleased to tell you that the positions, without advocating for either party. Although news was good. a tough task, the mission was accomplished. Your CLE Chair, Dawn Tra- On the legislative front, our lobbyist, Fausto Go- verso, reported that we con- mez, does not anticipate any workers’ compensation tinue to offer our lunchtime tel- legislation to be filed this session which concerns the ephonic seminars with great success. Our upcoming Section. The session begins in March and will run Winter Seminar will be held from February 6, 2011 through April and although no activity is anticipated, to February 11, 2011 in Beaver Creek, Colorado. This with the help of Fausto, we will be prepared to react seminar will provide a varied offering of presentations and provide any needed information to interested encompassing not only workers’ compensation topics, parties should any Bill of interest be filed. We are but also issues that arise in our day-to-day practice. aware that sometimes when no legislative activity is Dawn announced that we have filled our room block anticipated, the worst can happen. at the hotel and we already have received a full slate At our January Executive Council meeting, we held of confirmed participants. Good work, Dawn. an election for a vacancy on the Council created by Jeff Jacobs, Chair of the Workers’ Compensation the appointment of Judge Ray Holley as a Judge Forum Committee, reported that the Forum will be held of Compensation Claims in the Jacksonville District. at the Omni Championsgate resort outside of Orlando I am pleased to announce that Philip Augustine of on April 11 through April 12. All Section members will Maitland was elected to the Council and his term will receive a brochure with registration information in the begin on July 1, 2011. Congratulations to both Judge near future. Last year, the Forum drew 400 attendees Holley and Philip. The council also voted to formally from the Section, the WCCP and the IARP organiza- endorse John “Jake” Schickel for election to the tions. Although the Forum continues to offer an out- office of President of The Florida Bar. Jake is been a standing course book and live presentations by the top long-standing member of the Section, whose contribu- workers’ compensation lawyers in the state, covering tions to the practice of workers’ compensation law and all of the course subjects one would expect from Board our Bar have been invaluable. We wish Jake the best Certification review course, the Forum also offers an of luck in the upcoming election and would ask that outstanding second track covering obscure topics such all Section members consider voting for him. as handling the complicated settlement, proper use As I reported to you last fall, we have seen an 18% and examination of vocational experts and, for the first decline in our Section membership since the 2003 time, a segment regarding guardianship issues and reforms. I am pleased to inform you that our member- how they impact workers’ compensation cases. Even ship has now stabilized. Perhaps, like the economy, we if you have attended the Forum recently, there will be have hit bottom. Now, hopefully, we may start seeing something new for you to learn this year. As we have a slow recovery as well. The Chair of the Membership come to expect, Jeff and his committee have done an Committee, Paulo Longo, and Tim Dunbrack are excellent job in putting together this great educational contacting the various law schools in Florida and try- conference. As Jeff is our Chair Elect, I have assured ing to arrange for actual trials to be conducted in the him that his job will become much easier next year. schools to generate interest in workers’ compensation On the appellate front, things have been very ac- law by the students. Great idea guys and good luck! tive. There are two cases pending at the First DCA As we move into the busy time of year both legis- regarding challenges to the 2003 and 2009 attorney fee latively and educationally, I promise you that your reforms, Jennifer Kauffman v. Community Inclusions Section will continue to work diligently in doing what (1D10 – 4046) and B.F. vs. AMS Staffing 1D10 – 2688. is best for you and the Section.

Workers’ Compensation Section 3 News & 440 Report Editor’s Comments By Mike Winer, Esq., Tampa

Dear Friends and Colleagues: In the recent case of Bysczynski v United Parcel Service, the First DCA recognized the complexity of Another year flies by!... A our field of law, stating that the case illustrated “the friend once told me “life is like complex nature of Florida’s current Workers’ Compen- a roll of toilet paper, the closer sation Law and the myriad of thorny legal and medical you get to the end, the faster it issues which accompany even the most fundamental seems to go by!” I can’t believe decisions regarding an injured worker’s entitlement to it’s 2011 already. As I enter and a carrier’s liability for, medical treatment.” Indeed, my 15th year of practice, I it seems that the 1st DCA now also understands what look back on how much things many of us have known for several years: that work- have changed. ers’ compensation cases have become among the most When I started the practice difficult and contingent of all to successfully navigate. of workers compensation, it Not all this change has been for the bad. Some in- seemed so much more informal, cordial and “simple” credible improvements have been made in technology, as compared to the civil litigation cases I was handling. making the OJCC system the pinnacle of technological (Cue the harp music as I look to the sky and ponder efficiency and excellence. Despite the many positive a simpler era, one in which I was 20 pounds lighter changes, gone are the simple days. Proficiency in and the hair in my beard was not so grey...)... Back today’s workers’ compensation practice requires con- then, the claimant just mailed in his Petition, one that stant effort and extracurricular activities. Several of didn’t need any attachments and would not be subject these opportunities are coming up, including the Trial to any strict filing requirements. One could then walk Advocacy Seminar and the Forum (formerly known as over to the JCC’s office and have a procedural motion the Board Certification Review Course). You will find heard at an actual live hearing, where you would see all the information necessary to register for both of familiar faces and actually get to meet and talk with these invaluable opportunities contained herein and I your opponents and other attorneys. There was no encourage you all to attend at least one of them. I also fraud defense; the dishonest claimant simply had his encourage you all to “get involved”-- become an expert benefits denied because he wasn’t credible. Judges in this area by becoming board certified or writing an could rely on relevant lay testimony in applying de- article for this publication or serving on a committee terminations on causation. When claimants lost, they or the executive council for your Workers’ Compensa- simply went home, undaunted by fears of a monetary tion Section of The Florida Bar. judgment for costs pursuing them. In keeping with the motif of this edition of “looking Now days, comp is a different world- one in which it back to look forward, you will find a speech given by highly unlikely an injured Claimant, or even a licensed Richard Ervin on April 7, 1986, in Tallahassee, at a attorney who is not proficient and experienced in han- meeting of the then-deputy commissioners. It provides dling workers’ compensation cases, would possess the a personal history of Justice Ervin’s experience with necessary legal skills and “know-how” to successfully the Workers’ Compensation Law from its inception prosecute a workers’ compensation claim. The current in 1935, and continuing through his tenure on the Act involves complicated issues such as major contrib- Florida Supreme Court from 1964 until 1975. The uting cause, apportionment, medical opinions limited concerns about the workers’ compensation system to IME’s, EMA’s or authorized physicians. Even Peti- from 25 years ago ring as true today as ever. tions for Benefits have stringent requirements or they I hope you will find this latest edition of the News will be summarily dismissed. It’s no secret to anyone & 440 Report as useful and informative as any before that does this stuff, that workers’ compensation has it. I offer my sincere gratitude to Greg Raub, Esq. for become “harder than Chinese arithmetic.” This used serving as Guest-Editor of this edition of the News & to be an informal practice, but a number of legislative 440 Report. He has helped to assemble educational changes over the past 30 years have changed that, and useful articles for your daily practice. As always, making the job of successfully representing the injured I also would like to offer my sincere gratitude to those worker exceedingly difficult. who have contributed to this issue including (but

Workers’ Compensation Section 4 News & 440 Report • Editor’s Comments enrollment form for new or renewing members. Please print this up and give it to any practitioner you run across who may not yet be a section member. I also certainly not limited to) W. Rogers Turner, Esq., for encourage you all to support our advertisers and take preparing the case law summaries. His hard work advantage of the CLE opportunities presented in this keeps us all updated on the developments coming edition. As always, this publication welcomes your out of the 1st DCA and Supreme Court. Judge David comments, thoughts, reactions and even gripes. Langham continues to make extraordinary efforts to bring the professionalism of our bar on a par with our Best Regards, lofty technological achievements. His article “Remind- ers for the Effective Advocate” provides core principles Mike Winer, Esquire for the practice of law that should guide our collective Law Office of Michael J. Winer, P.A. conduct. Implementing these suggestions will, in the 110 North 11th Street, 2nd Floor end, make us all better lawyers. Tampa, Florida 33602 Finally, the Section remains committed to attract- phone: (813) 224-0000 ing new members and retaining existing ones. Our telefax: (813) 224-0088 Section depends on membership dues to sustain itself. [email protected] As always, located in this Edition, you will find an

Letter to the Editor:

I have been hearing a great deal lately about the planning for two Section events that deserve mention. I understand that the Section will be offering the Forum again this year in Orlando on April 11 and 12, 2011. I have attended and spoken at this program in the past. This is an exceptional program that provides an intense and in depth look at multiple legal issues. This excellent program offers an unparalleled educational opportunity for those seeking certification, and those serious about their knowledge of the law. Similarly, the Section’s Trial Advocacy Workshop in Miami in June offers the same depth and intensity, but focused specifically on the skills of trying a case. While this is an unprecedented opportunity for the new litigator, it is a real opportunity for the experienced attorney to hone key skills. As a Board Certi- fied workers’ compensation attorney, an adjudicator, and a former faculty member at each of these programs, I encourage your readers to consider these two excellent opportunities when planning their year and counseling their firm’s associates.

David Langham Deputy Chief Judge of Compensation Claims

Workers’ Compensation Section 5 News & 440 Report Letter to the Editor: If It Is To Be, It Must Be Me

I received my copy of the News & 440 Report last I propose that we forget about filing the cases to in- week, and read the letters from Al Frierson, David crease our attorney fees, but rather let’s try to take Parrish, Herb Langston and Ray Malca. I too have action in such a way that we can actually help our practiced workers’ compensation law prior to the clients. My recommendations are simple. 1978 changes. Unfortunately, in looking at our Work- Concentrated efforts should be made at the begin- ers’ Compensation Bar Section, it does not appear ning of each year to actually read the entire workers as if there is the same dedication to finding a way compensation statute. I doubt if most lawyers have to improve this workers’ compensation law like that ever read the statute from beginning to end. We would which existed at the time the first major changes were all be surprised at what is in there if, instead of read- enacted in 1978. ing some changes in the law, we actually went back During the last seven years, we are told workers’ and read the complete statute. Each time I read the compensation premiums are down 65%. During that statute from beginning to end I find four or five things time, I think we have lost hundreds of thousands of that I hadn’t thought of before that allow me to help jobs in Florida. This shows that the job retention cer- my clients. An example would be the ability to take tainly as nothing to do with lower workers’ compen- depositions prior to filing a petition. Many times this sation premiums. During the period of time between has resulted in clients being paid benefits without a 1978 and 2003, we have a number of recessions, one petition having to be filed. I never have a problem with very major in late 1987/1988. Premiums were higher, clients paying me back my costs. Attorney fees I will comparatively, than now, and we did not sustain the worry about later down the road. type of job loss we have now. We need to stop lobbying the legislature for changes I am inclined to believe that the legislature does in the law. I believe that by lobbying for improvements not take our Workers’ Compensation Section seriously. in the law, all we have managed to do is educate the It appears as if it is the legislature’s position, and legislature that they are writing, what is probably an the main advocation of most lawyers is, how much is unconstitutional act, and help them to make it barely my attorney fee, as opposed to, what can I do for my constitutional. Had we not bothered with informing clients. I have yet to find any judge that was overly the legislature in either 1995 or 2003 about all of the concerned about whether a lawyer was being paid to problems we saw, we may have been able to litigate little, as opposed to whether or not the lawyer was be- into a better legal position and our clients wouldn’t ing paid too much for work that he said he performed. be in the position they are now. At this junction, after seven years with the new Try to find innovative ways to help your client, law that went into effect October 1, 2003, I have yet even if it is outside of the parameters of F.S. § 440. to see a groundswell of cases involving clients’ rights. As an example, some health insurance companies Lawyers talk about the attorney fee case of Murray include short term disability as part of the health as if this will be the workers’ compensation lawyers’ policies. This short term disability will usually pay salvation. I have yet to see a client that is the least up to six months worth of benefits if you can show bit concerned about whether I earned an attorney fee. your client does not have the ability to perform their Quite frankly, clients only come to me because they are own occupation. Consider not taking temporary total concerned about whether they will have enough money or temporary partial disability, but rather using your to buy food, and whether medical care and attention short term disability. This will save your 104 weeks will be available to them. It almost seems that our Sec- of benefits for a later use, and still get the client 60% tion attorneys put the cart before the horse. It seems to70% of their wages. Clients are not required to take to be more important to find a way to make a decent temporary total or temporary partial. Remember, attorney fee than trying to solve a client’s problems. benefits obtained outside of F.S. § 440 are not subject Over the last seven years, instead of having a mind- to attorney fee approval by a workers’ compensation set of, “if it is to be, it must be me,” the majority of judge. workers’ compensation lawyers seem to practice under Consider that if you have a client that is working the mindset of, “if it is to be, it must be thee.” Ev- and the employer requires the client to attend doctor erybody is waiting for somebody else to do the heavy appointments during working hours that you file a lifting that is necessary to find a way to obtain decent separate claim under your Federal Wage and Hour Act benefits for our clients. for the time missed. Again, under temporary partial

Workers’ Compensation Section 6 News & 440 Report • If It Is To Be, It Must Be Me adversely in other areas of law may very well dem- onstrate the lack of care for your clients’ benefits and at the same time demonstrate how important it was usually the time missed cannot be paid, and the cli- for a lawyer to obtain an attorney fee as opposed to ent resents the fact that he is missing time from work watching out for a client’s interests. without pay. A quick look at case law under federal law Check to see if you have a properly formatted Social may demonstrate that under circumstances such as Security offset clause, in your settlement documents. workers’ compensation where your client is entitled Failure to put one together that is acceptable to the to his full hourly rate, regardless of how many hours Social Security Administration may very well cost he missed that week. Consider constructing a mileage your client on a dollar for dollar basis the total amount form that includes on the form how much time the cli- of indemnity that you have settled his case. This can ent missed from his normally scheduled job. Attorney result in a deduction of that exact amount of the in- fees can be paid by the employer. Think about the demnity paid from any later Social Security award. situation where the workers’ compensation adjusters In workers’ compensation, the medical drives the cannot/will not pay temporary partial disability and case. In workers’ compensation, to revive the benefits, the shock the employer has that he must pay. it is my opinion that more effort must be made to bring I have read health insurance policies purchased by to the attention of the court the deficiencies in provid- national companies in this state that include clauses ing medical care to the injured clients. An expansion that prohibit a group health policy from providing any of benefits from a medical standpoint is something medical care and attention for a workers’ compensa- where our courts can be responsive. There is a direct tion injury whether it occurred on that employer’s job correlation between improving the medical welfare of or even 30 years ago on another job. Check your client’s our clients and improving the attorney fee entitlement health care insurance policy to see if it can be of some of our lawyers. assistance to your client’s injuries. I disagree with the fact that our workers’ compensa- Pay attention when your hand a release to a client tion section has shrunk means that the balance of the to sign in conjunction with a workers’ compensation Section are certainly better workers’ compensation settlement. Many of these releases can be used to stop lawyers than the ones that left the section. It appears the claimant at a later time from either applying for to me as if the section is shell shocked, and right now long term disability benefits, or even contesting under is showing not enough interest in the clients rights. As the Federal ERISA law the clients’ entitlement to a stated above, “if it is to be, it must be me,” as opposed pension, as they may in a release give up their right to, let’s wait for the other guy to do it. to sue if there is a disagreement concerning the pen- sion rights that they may have. Failure to read these Very truly yours, releases and request changes that effect your client Donald Carl Anderson, Jr.

June Save the 2011 date! 20112011 FloridaFlorida BarBar AnnualAnnual ConventionConvention June 22 - 25 Gaylord Palms Resort & Convention Center, Orlando

Visit www.floridabar.org for details and registration

Workers’ Compensation Section 7 News & 440 Report Guest Editor’s Comments: Can’t We All Just Get Along?

Let me start by saying thank you to Mike Winer for of passing the Bar, he basically indicated, “Don’t be a allowing me to be guest editor of the News and 440 jerk.” I have always tried to maintain that attitude Report (Bill Rogner might tend to disagree as to whom when dealing with all attorneys. was responsible for me being guest editor). Neverthe- I have always attempted to keep those words in less, I do want to express my sincere gratitude to all of my mind. However, I couldn’t help myself in writing the contributors to this month’s News and 440 Report. a snotty letter to Stewart about two or three years Obviously, we would not have much of a publication after that seminar. I think the letter involved his cli- without your assistance. ent drinking some warm milk in order to get to sleep. When I first accepted the role as guest editor, I Rather than firing off a response to me, he picked up thought it would be no problem to write an article the phone and told me how I could have made the let- about Workers’ Compensation. However, I was wrong. ter funnier, which was my intent. In contemplating an article, I thought back to the end I know I have done this a number of times. However, of my second year of law school. During that summer, picking up the phone is probably the easiest and most I clerked in a medical malpractice defense firm in professional way to get your point across. Sarasota, FL. I returned over the holiday break during In the last few years, we increasingly sit at our com- my third year and actually got to sit in on a week long puter waiting to respond to emails. However, emails trial. I had no idea what Workers’ Compensation was can be easily misconstrued with regards to whether at that time. I was hoping to return to the firm the fol- they are in ALL CAPS, have an exclamation point! lowing summer after I graduated from law school, but associated with the phrase or are just poorly written. due to unexpected circumstances at the firm where I There is definitely a reason why the 60Q Rules had clerked, I was unable to return. At the start of my require we have personal contact with an opposing final semester of law school, I had no job or prospects. counsel when dealing with motions. After discussing When a classmate suggested I sign up for the Work- a motion with another attorney, I tend to believe that ers’ Compensation course offered at Mercer University, around 95% of the time, the issue gets resolved with- I scoffed. Why would I take a Workers’ Compensation out having to go to hearing. class when I was interested in Medical Malpractice? While I may not now speak on the phone as much Then I realized, however, it couldn’t possibly be that hard as it was offered to third year students only. At as I have in the past, I could probably learn a lesson that point, I decided I would give it a try. from my partner, Greg White, with regard to speaking Little did I know signing up for that particular class on the phone. He constantly resolves issues and claims would change my life. Dennis Smejkal, a Workers’ just by picking up the telephone. While we all realize Compensation claimant’s attorney in Orlando, was a this is definitely the digital age, we should not let that guest speaker at one of the classes (for some reason, overshadow the fact that we are still dealing with real I actually attended that day). Dennis gave me the people and need to maintain personal contact and a names of a few people to contact for job leads, includ- high level of professionalism. I look forward to speaking ing Rex Hurley. with all of you in the near future. The summer after I graduated from law school, I attended Bar review classes in the morning, clerked Gregory S. Raub was born in Youngstown, Ohio on for Hurley, Rogner in the afternoon and studied for the December 10, 1973. Mr. Raub graduated from the Bar in the evening. Ultimately, I accepted the position in 1996. He went on to attend the Walter F. George School of Law at Mercer University as an associate attorney in 1999. By 2005, I became a in Macon, Georgia, where he graduated in 1999. While shareholder and passed the board certification exam. at Mercer University, Mr. Raub served was elected to Along the way, I have experienced a number of profes- serve as a member of student government. Mr. Raub sional ups and downs. Through it all, I have tried to has worked for Hurley, Rogner, Miller, Cox. Waranch keep certain words of wisdom in mind while practic- and Westcott since he graduated from law school in ing. The most pertinent, which still resonate with me 1999. He became a Florida Bar board certified work- today, involved Stewart Colling. As many of you know, ers’ compensation lawyer in 2005. Mr. Raub resides Stewart passed away in May 2009. However, at one of with his wife and child in Winter Park, Florida, and the CEU seminars I attended within a couple months they are expecting a second child in the Spring of 2011.

Workers’ Compensation Section 8 News & 440 Report orlaNDo T amP a weST Palm beach melboU r N e miami

BICHLER | CLELLAND | OLIVER KELLEY, HASTINGS, LONGO, SPEARS & PARRISH, PLLC

N ow F i G h T i NG For F irST reSPo NDerS STaT ewiD e

PROTECTING THOSE WHO PROTECT AND SERVE

www.bichlerlaw.com 407-599-3777

Workers’ Compensation Section 9 News & 440 Report Looking Back: Worker’s Compensation Deputy Commissioners Meeting April 7, 1986, Tallahassee, Florida Remarks by Richard W. Ervin

Foreword by Richard W. Ervin, III My first recollection of workmens’ compensation The following is a speech my father gave on April 7, (neutered now to avoid chauvinism and called workers’ 1986, in Tallahassee, at a meeting of the then deputy compensation) was in Governor Sholtz’ administra- commissioners. It may provide some interest to the tion in 1935. I was Engrossing Clerk of the House of older and perhaps even newer practitioners in the field Representatives where with a staff of about 10 typ- in that it involves a brief, personal history of my fa- ists I rewrote the amended House bills and inserted ther’s experience with the Workers’ Compensation Law amendments. from its inception in 1935, and continuing through his The 1935 Session was a momentous one. I recall tenure on the Florida Supreme Court from 1964 until from my view as Engrossing Clerk that the New Deal 1975. As I indicated in an article published in this was trying to implement economic and social reforms issue of the News & 440 Report, the Supreme Court to cope with the depression and lift the spirits of the played a far more active role in its review of orders “forgotten man.” Governor Sholtz was a liberal, liberal of the Industrial Relations Commission (IRC) than enough to persuade the Legislature to legalize slot it has in its review of First District Court of Appeal machines. He also embraced New Deal reforms to decisions since the creation of that court’s exclusive help Florida citizens who had suffered not only the na- appellate jurisdiction in 1979. My father’s speech re- tional depression but the Florida boom and bust. Such fers to the acknowledged expertise of Justice E. Harris Washington New Dealers as Conrad Van Hyning and Drew (“Mr. 440”) in workers’ compensation cases. One Julius Stone appeared at the 1935 Florida Legislature admission he made, particularly relevant to my own to push passage of Florida legislation to embrace New judicial experience, was that it takes four-to-five years Deal programs including Workmen’s Compensation. to know “very much about” workers’ compensation law. There was some anti growling about Federal intrusion In my father’s case, he was fortunate to draw on the – the old frontiersman macho philosophy such as was experience of Justice Drew, and in mine that of Judges then preached in Georgia by old Gene Talmage (the Leander Shaw and Winifred Wentworth, both former Wild Man from Sugar Creek), its Governor and some commissioners with the IRC, who were appointed to other Southern governors. But our Florida Governors, the First District shortly after the court’s assumption of particularly Governor Scholtz, did not make it a policy appellate jurisdiction of workers’ compensation cases. of combating the Federal government by magnifying Judge Wentworth was in fact a former law clerk of outmoded claims of states rights to the detriment of Justice Drew, and I feel confident that her invaluable Florida people in need of welfare benefits and labor assistance in that capacity contributed greatly to his relations reforms. The Workmens Compensation Act well-known reputation in the field. was passed, the Industrial Commission created and Many of the problems existing in the system my Wendell Heaton, the first chairman, appeared on the father mentioned in his comments over 24 years ago scene. I remember him well. He was thrown out of remain. Following the passage of the wage-loss concept the chairmanship when Uncle Fred Cone was elected in 1979, then in effect at the time of the speech, there Governor. During my years with the State from 1935 have been, as every attorney and judge in the field to 1964 in such jobs as Attorney for the Road De- knows, substantial changes in workers’ compensation. partment, Secretary for the Railroad Commission, A plausible argument could be made that the plight of Assistant Attorney General and Attorney General, I an injured worker in processing a claim is worse now remember Wendell’s successors as chairmen, Harold than it has been in recent years. Despite the current leg- Wall, Boyce Williams, Carl Smith, Raymond Barnes islative obstacles, it is my belief, based on the number and Jim Vocelle. Jim served the longest – eight years of claimants’ attorneys who still continue to practice under Governors Dan McCarty, Charley Johns and that many retain the same optimism as was expressed LeRoy Collins. The chairmen I referred to were all by my father in 1986, that “maybe, just maybe we as a strong individuals of unique personality. Carl Smith people can hope for a better day.” I remember was a real outspoken natty dude. Jim Vo-

Workers’ Compensation Section 10 News & 440 Report • Richard Ervin Remarks SOB to run this Court? Well, B.K., all I can say is it seems to me you have all the qualifications.” Justice Roberts twitted me about my 4-3 majority celle had a commanding presence with great oratorical opinion in Shunk v. Gulf American Land Corp. Mrs. ability. Shunk had a 24 hour a day job of soliciting and get- In the early days of the Act the Florida Supreme ting people, mostly tourists, to take a 7 a.m. departing Court paid homage to its salutary purpose by repeat- plane to fly to Naples to look at Coral City subdivi- edly stating in its opinions for the next thirty years sion lots and possibly become purchasers. One night that a liberal construction should be given the Act in Daytona Beach she and a group of prospects had and with all doubts resolved in favor of the worker. a late dinner ending at 12:30 a.m. and she then went However, I haven’t seen this principle repeated very to a motel with a male prospect who by then was in much by the state Supreme Court these last ten years. a drunken condition to ascertain the number of his I was on the Supreme Court from 1964 to 1975 – motel room so as to get him up early enough to catch eleven years. Justice E. Harris Drew was known as the plane at 7 a.m. At the motel she said she went into Mr. 440 (Ch. 440 represented the codification of the his room to use the toilet since she was nauseated from Workmen’s Compensation Act in the Florida Statutes) the dinner. When she came out of the prospect made since by his own asseveration was the Court’s expert improper advances toward her and in attempting to on workmen’s compensation cases. His dominance in elude him she jumped 25 feet from a window, injur- the field was so great most of the Justices didn’t dare to ing herself. The injury occurred about 2:30 a.m. The cross him except one Justice who always resolved any Deputy Commissioner found for Mrs. Shunk holding doubt in favor of the employer. If a neophyte Justice had the temerity to dissent to one of Justice Drew’s she was injured during her employment. The full Com- decisions in the workmen compensation field, he was mission reversed, saying “it cannot be said because looked upon as a pariah, not only by Justice Drew but (Mrs. Shunk) was working in an area away from her by his older colleagues as well. home, she must be considered to be in her employment Only after I had been on the Court some five or six during an evening involving a later dinner and visits years and after Justice Drew left was I successful in to cocktail lounges. Whatever motivation claimant getting some of my workmen compensation opinions may have for jumping from the window . . . the injury approved by a majority. But to tell the truth Justice cannot be considered to have arisen . . . in the course Drew’s opinions were more often than not sound and of her employment.” Along with me a majority of the he generally favored the claimant even when his Court thought the Deputy was right in agreeing Mrs. contemporary colleagues would like to have ruled Shunk was injured during her work while protecting otherwise but yielded to his vaunted expertise. her virtue, Justice Roberts to the contrary. He thought Justice Thornal was known as old L 4, a rib desig- she was only out on the town spreeing. He said I was nation, because of his predeliction to favor claimants about like old Justice Chapman who always ruled with with backaches since he was often bothered with one the underdogs particularly women, citing the railroad himself. accident case where the railroad’s lawyer was arguing After Justice Drew dissented to Justice B. K. Rob- to the court that a young woman was hit by a train at a erts original denial of compensability in the Victor crossing due to her own negligence. Justice Chapman Wine case, Justice Roberts perfected the doctrine of raised up on the bench and asked the lawyer, “It hit providing compensation for claimants who suffered the little woman didn’t ‘er?” The lawyer had to admit heart attacks brought on by the trauma of unusual it did, and Justice Roberts said that as far as Justice or unexpected strain or stress of work in the court of Chapman was concerned that was “all she wrote” and employment. He was thereafter known by us as Dr. ruled for the little woman. Roberts, specialist in myrocardial infarction. Some of It would be easier for me in this talk to continue on the more ribald-minded judges used to enjoy playing to relate bland, if not banal anecdotes since workers’ on the word infarction when closeted in chambers. compensation is a tough subject to give a talk on. But I I remember when Justice Roberts was Chief Justice really have some serious things to say. Since agreeing he complained to us: “You fellas are causing me all to make this talk I have tried to carefully prepare for kinds of trouble not getting together and agreeing on it. I have consulted with Directors Neff and Maguire decisions; you are making it tough for me to run this of the Division of Compensation and with certain of Court. I’m nearly sick from the way you are acting. It the longer tenured Deputy Commissioners. I have really would take a hard boiled SOB to handle this found that there are some signal plus factors in the job.” But he didn’t receive much sympathy. In fact Jus- administration of the compensation law. For example tice O’Connell replied: “You say it take a hard boiled although there were approximately 400,000 injuries

Workers’ Compensation Section 11 News & 440 Report • Richard Ervin Remarks The 1979 Act raised the compensation rate to 66-2/3% of the A.W.W. for all classes of disability with some special supplementation. But the amount and time to covered employees in 1985 of which 60,000 involved paid of said 60% and 66-2/3% A.W.W. benefits varies. the loss of at least 7 days work and although wage For example, if a worker lost an arm while under the scale averages in all work categories have increased old act, he received 60% A.W.W. for a set period of 200 from $140 per week in 1979 to $315 per week at pres- weeks. This amount continued, regardless of whether ent, the premium rates for coverage are practically he lost any wages, or whether he was able to resume the same as they were in 1979, notwithstanding the this former employment after achieving maximum total premiums for all Florida employers were in ex- medical improvement. But this type of scheduled cess of 1.1 billion dollars. This plus in premium rates partial disability compensation was believed by the is attributable to: safer work places; rehabilitation 1979 legislature to be arbitrary and subjectively and processes with workers being off the job less than they it was replaced with the wage-loss concept, under used to be; wage-loss compensation as a substitute which a disability for loss of wages of not more than for permanent/partial disability and restriction on 15% was not compensable. If greater than 15% it was attorney’s fees. Also under present procedures most susceptible to wage-lost compensation equal to 95% of routine claims are handled administratively at a pre- the difference between 85% of the employee’s average liminary level by non-binding evaluations of benefits monthly wage and the salary he was able to earn after made by the Division of Workers’ Compensation. The reaching M.M.I. However, such benefits computed Division administrative management appears to be according to formula shall not exceed 66-2.3% of the implementing the 1979 Act with much success. Di- employees A.W.W. at time of injury. These benefits are rector Neff firmly believes that it is a good policy for payable if justified for a maximum of 525 weeks. Actu- Deputy Commissioners to consult among themselves ally the pre-1979 benefits and the post-1979 benefits and talk over their problems. He feels that in doing vary so much from case to case it’s really impossible so they will produce better fine-honed determinations, to tell which system would provide the most benefits. more uniformity and conformity with the governing The greater question is whether workers’ compen- law. sation is realistically fair to all concerned. Does the Dr. Maguire receives medical and fee reports from all health providers treating comp claimants. She be- fact that it only provides the worker a percentage lieves that in controverted claims these reports when of his wage loss plus medical treatment and some pertinent, including her staff’s evaluation, would be supplementation in certain instances provide a suf- beneficial to DC’s in adjudicating these claims and she ficient “trade off” for civil law compensatory damages? will make them available if desired. She thinks closer Sure, there is “no fault” comp liability but does this liaison with her department would be helpful to DC’s warrant lesser compensation than something closer in areas of medical evidence. to civil law damages. Sadowski and the 1979 legisla- I regret I have been unable to get any reliable ture think it does and argue that history and reason statistics indicating the total benefits paid workers support only recompense for wage-loss, and that in 1985 nor have I been able to get data indicating “wage-loss” is all that an employer logically owes a whether workers fared better prior to 1979 in terms disabled employee. Others would contend that indus- of compensation or thereafter. There seems to be no trial accidents justify a public policy which measures quantitative or qualitative data to make realistic workers’ compensation a “trade-off” within a reason- comparisons between these periods. able range of recognized civil compensatory damages. I have reread the Law They contend the pre-1979 schedules took into some Review article written by Wm. Sadowski and others account possible contingencies that might affect a concerning the 1979 Act and have compared Section worker’s future ability to earn a livelihood while the 440.15 of the pre-1979 Act with revised Section 440.15 post-1979 wage-loss concept does not. It would take of the post-1979 Act and amendments relating to an in-depth statistical survey and close analysis of the compensation for disability. This involved comparing data to come up with any definitive answers. The goal current impairment and wage-loss benefits with the to be achieved by an honest Worker’s Compensation scheduled benefits provided under the older law. Ac- Act, according to Professor Larson, is “(the)… belief cording to Sadowski et al, the overall goal of 1979 Act in the wisdom of providing, the most efficient xxx and “was to reduce costs, in the form of premiums to the most certain form, financial benefits for the victims employers of the state xxx”. Under the pre-1979 Act, of work-connected injuries which an unlighted com- compensation for all kinds of W.C. disability consisted munity would feel obligated to provide in any case in of 60% of the workers’ average weekly wages (A.W.W.). some less satisfactory form…”. Frankly, I am quite

Workers’ Compensation Section 12 News & 440 Report • Richard Ervin Remarks The Florida Bar Workers’ unable to say whether workers generally far better Compensation Section not than they did in 1978. is pleased to announce that From my findings I agree with Director Neff that the rehabilitation program started in 1983 should be continued at least until it has been given a fairer time John “Jake” Schickel test. In today’s political climate I agree with Director Coker Schickel Sorenson & Posgay Neff that no major overhaul of the 1979 compensation Jacksonville, Florida law seems propitious, although some amendments as I will indicate would certainly improve it and give it has been named recipient of the a more decent judicial gloss. In reference to the 23 Deputy Commissioners, it Frierson-Colling was necessary that they consider and issue 23, 953 Professionalism Award orders in 1985. Their continued existence appears essential to a viable, honest workers compensation system. There will always be controversies, disputes, The Frierson-Colling Professionalism regarding compensation claims, etc. to decide cover- Award is presented to an ing a wide variety of subjects, e.g. casual vs. regular attorney who demonstrates outstanding workers; injury in course of employment; bad faith; leadership and professionalism entitlement to attorneys’ fees; type of benefit; to name some of the prominent. Comp cases are often complex in nature calling for expert testimony. The 1979 law Jake currently serves as a member of itself is couched in terms ultra legalese, medical, math- The Florida Bar Board of Governors and ematical and is quite involved. It takes what we used serves as The Florida Bar Board Liaison to to call a “Philadelphia Lawyer” to even come close to the Workers’ Compensation Certification mastering the 1979 law. The wage-loss concept is a Committee, the Workers’ Compensation prime example of difficult understanding. Rules Advisory Committee and Workers’ From my experience on the Court dealing with Compensation Section. workers compensation cases I certainly agree with Jake is a Board Certified Civil Trial Lawyer those who contend that the proper administration of and Workers’ Compensation Lawyer. workers compensation claims requires trained person- nel schooled in knowledge of workers compensation law, its interpretation as well as having good experi- The Florida Bar Workers’ ence in law in general. As a rule real experience is Compensation Section gained only by on the job training. Workers compen- will present the Frierson-Colling sation law is a highly specialized legal field, an art in itself. I doubt I knew very much about it until I was Professionalism Award to Jake on on the Court 4 or 5 years. And some who were disap- Monday, April 11, 2011 at pointed by my opinions may claim I never did. The Omni Orlando Resort at It has been pointed out to me that despite the fact ChampionsGate during many minor claims no longer require the attention The Florida Bar Workers’ of Deputy Commissioners, and “wash-out” settle- ments have been curtailed, the work of the Deputy Compensation Forum Commissioners has not been reduced. This is so for a number of reasons, viz. the wage-loss concept has limited the jurisdiction of Deputy Commissioners to The Florida Bar Workers’ the adjudication of past-due benefits which require Compensation Section thanks more hearings as benefits fall due and are contested. Jake for his Dedication and Service to The number of cases involving unrepresented claim- The Florida Bar, his ants has substantially increased, requiring the D.C.’s to serve to a degree both as procedural attorneys for Outstanding Leadership and the claimants as well as judges, Limitations of “lump Professionalism sum” settlements has resulted in increased litigation.

Workers’ Compensation Section 13 News & 440 Report • Richard Ervin Remarks Legislature will yet agree with me, complete the job and redesignate them as such, it is only logical that if judges must judicially review comp case appeals, the A case under the old law might require a pre-hearing triers of the cases ought to be judges also. All the deci- conference, a hearing on compensability, one on tempo- sions of the Florida Supreme Court are to the effect rary benefits, one on wage-loss benefits or permanent that the Deputy Commissioners in hearing comp cases total benefits, one on attorney’s fee entitlement and are operating as judges. Workers compensation claims one on total amount of attorney fees. are in essence civil claims akin in nature to other The very nature of the role, tenure and work of personal liability claims. They need for their resolu- Deputy Commissioners, the high ethical standards tion judicial due process. Similarily, as in the review to which they are held, the close monitoring of their area, controverted workers compensation claims are work and discipline of their conduct by the Chief Com- entitled to judicial consideration initially at trial. And missioner, the Secretary of the Department of Labor this requires trained adjudicators with judicial stat- and Employment Security, the Judicial Nominating ure, tenure and standing similarly as is provided for Commission of the District Court of Appeal and the the disposition of civil cases. They should be selected Governor would appear to dictate that they be ad- with an eye to their legal ability, their integrity and equately salaried, pensioned and designated as judges. their impartiality; and they should be protected in Indeed, very high standards of competence, integrity their tenure sufficient to insure they cater to none but and performance are required of them! impartial justice; and lastly they should be salaried I think that Deputy Commissioners, similarly as and pensioned sufficient to attract the worthy and to in the Federal jurisdiction involving Federal Workers’ insure longer tenure with the ensuing benefits of “on Compensation and other administrative Law Judges the job” acquired skills and stored legal knowledge. and authorized to try all Florida compensation con- These are goals subserving the best interests of both troverter claims, and in addition all other controverter management and the workers. They are the antitheses administrative claims cases which our Circuit Judges of a one-sided policy and parsimonious treatment of might assign to them. Their salaries should be pegged a major problem in our modern society. They mean a to Circuit Judges; either the same or within a small better Florida and a healthier condition in industrial percentage thereof. relations. Ours is presumed to be a democratic society of Our Constitution guarantees access to open Courts evolving standards of decency and justice. In the mi- for redress of all injuries with justice administered crocosm of your Deputy Commissioner roles it is then without sale, denial or delay. But is this provision natural to expect that as time passes your stature will becoming a dead letter and winked at with impunity be improved, recognized as judicial and your tenure by pressure groups? Is the trend these latter years protected, not so much for your personal gratification to minimize compensation for injuries and wrongs, but to dignify and insure the integrity and reliability through statutes limiting recoveries and access to of the industrial relations system as an honorable judges by substituting administrative processes for governmental institution. This enhancement is essen- skilled impartial adjudications? Statutes are increas- tial to the system’s fairness, its ethics and to insure it ing for immunization, capping and substitution of against manipulation, greed and corruption. non-equivalents and “trade-offs”, obfuscation of due I feel sure that in time the better natures of the process and rules that deny or delay the full redress powers that be, imbued as they are expected to be with of claims. Access to insurance carriers in litigation is the higher precepts of American freedom, justice and narrowed; although carriers have full access to dispute good will, their heritage from our Constitution and plaintiffs’ claims. Lobbyists walk the legislature halls progressive traditions will take the necessary steps selling new schemes to frustrate redress of victims, and make the enactments to enhance your roles. limit liability insurance coverage and to reduce and I was gratified that in the appeal area of workers defeat claims of the poor, the middle class and the compensation the DCA 1st, a recognized constitutional helpless who have been wronged. Court, was authorized by the Legislature to hear direct Denigration of the legal system, the jury system, appeals, not an administrative board constituted in even the judicial system, seems to be the order of the part by lay representatives from labor and manage- day. Resort to and use of attorneys is discouraged. ment. That is what I recommended should be done in Contingency fees are under assault. Tort liability is my dissent in Scholastic Systems vs. LeLoup. I also being transposed into “no fault” systems similar to said in that dissent Deputy Commissioners are judges, worker’s comp with ever lessening indemnity. The not administrative officers, and I remain hopeful the administrative law process grows apace with “in

Workers’ Compensation Section 14 News & 440 Report • Richard Ervin Remarks that are aristocratically oriented; selfishly indiffer- ent and callous to the needs of impartial justice with independent judges. house” adjudicators and hearing officers replacing I don’t believe this cycle of indifference can continue judges and due process. Frankly, lawyers and judges, too long into the future, however, because to continue you are appearing to become an endangered species. it would in time topple the whole structure of our de- You Deputy Commissioners here are perfectly aware mocracy. Corruption, money-oriented, should not be of these methods of manipulation to bewilder justice able to grow unless we, like the Romans, are beyond and downgrade judicial stature. I need give no detailed redemption and will choke in our own indifference to explanation. The Courts, particularly the Appellate the claims of justice. Courts at highest level, lately have been unable to It is axiomatic that in human affairs and institu- muster the constitutional courage to repell all these tions that if there is no progress toward betterment, legislative intrusions upon the traditional rights of the they stagnate, grow corrupt and die, even the state or average citizen “to enjoy and defend life and liberty.” nation itself, and especially so where there is a callous Often forgotten is the old axiom, “no wrong without denigration of justice, fairness, equality. Toynbee, the a remedy.” Judges are supposedly being upgraded by great English social historian points out that nineteen being better selected, better salaried and made more of the world’s great nations passed into the dust bin secure in their tenure. Let us hope this upgrading of of history because they were unable to cope with the judges will make them more protective of the people’s challenges to human decency. traditional rights, more impartial and less dependent It is indeed a gloomy picture, but maybe, just maybe and less beholding to those who have great influence we as a people can hope for a better day. with the Legislature. Deputy Commissioners, your own situation, your I lay the present legal problems of the innocent status is a microcosmic testing ground for the better victims of wrongs to the trend of the times; to times or worse nature of our representative government.

Ask us about: If you’ve got • Law Firm Management– Firm structure and governance; financial and personnel management; records information questions, management; work flow processes and more • Law Office Technology– Technology utilization, tips and we’ve got trends • Law Firm Manager Training– On-site training includes: answers! - Staff selection and supervision; - Performance measurement; - Bookkeeping functions, including trust accounting; - Proper docketing, calendaring and conflict checking; and - Overall office management responsibilities • On-site Consulting– In-depth review of the efficiency and effectiveness of the firm’s administrative practices Starting, closing or merging... LOMAS provides assistance. Call Toll-Free The Law Office Management Assistance Service 866.730.2020 of The Florida Bar Developing Business Management Practices Or visit us on the web at within the Law Firm Today to Promote www.floridabar.org/lomas Efficiency and Professionalism for the Law Firm Tomorrow

Workers’ Compensation Section 15 News & 440 Report The First District Court of Appeal and its Exclusive Appellate Jurisdiction Over Workers’ Compensation Cases by Richard W. Ervin, III

A little less than 30 years ago, when the First Dis- in handling workers’ compensation appeals, and it trict first moved from the basement of the Florida Su- has during that period established a substantial and preme Court into its current headquarters at Martin impressive body of case law in disposing of frequently Luther King Jr. Boulevard in Tallahassee, an outdoor difficult and complex novel issues of law, many of ceremony was held commemorating the occasion. which in the future will no doubt survive the test of During the festivities, I noticed that one of the judges time. It has moreover achieved a level of credibility was wearing a T-shirt with the inscription, “The 1st that was never enjoyed by the Industrial Relations DCA is the .” Although I then Commission during its 44-year history in handling chuckled at the somewhat amusing play on words, I such appeals. Despite the court’s undoubted expertise came to realize during the passing years there was an in this particular area of the law, I suggest that it is element of truth in that expression to the extent it ap- now time for the legislature to reevaluate its decision plied to the court’s exclusive jurisdiction over workers’ placing exclusive appellate jurisdiction in one court, compensation appeals. I fear that with the passage of and instead confer on all five districts general powers time there has developed a reluctance among mem- of review over this particular class of cases. bers of the court to certify questions of great public The district courts of appeal were originally de- importance to the supreme court, despite the authority signed to act as courts of general appellate jurisdic- for them to so do provided in Article V, section 3(b)(4) tion, rather than hybrid courts possessing both gen- of the Florida Constitution. eral and exclusive review powers. In recognition of The theory for this reluctance to certify questions the constitutional powers conferred on district courts was that because the First District was the court of by Article V, section 4(b)(1),2 the supreme court was final appellate resort for workers’ compensation cases, given the right by Article V, section 3(b)(3) to review with its members having far greater experience in a decision of one district court that conflicts with their review of compensation orders than the Supreme another district court, or of the supreme court, on the Court, there was little reason for certification. As a same point of law. That power of review, as it extends result, if there was no other basis for review, such to workers’ compensation cases, has, for all practical as the validity of a statute, reviewable by Article V, purposes, been eviscerated by the 1979 enactment sections 3(b)(1) and 3(b)(3), the district court’s deci- conferring exclusive appellate jurisdiction in the First sions affecting workers’ compensation issues became District.3 virtually unassailable, making the inscription placed I do not mean to suggest there is a lack of consti- on the T-shirt a self-fulfilled prophecy. tutional authority for placing all workers’ compensa- This attitude was somewhat similar to the defer- tion appeals in one court. That issue was resolved 30 ence formerly given by reviewing courts to nonrule years ago by the supreme court’s decision in Rollins v. agency action under the Administrative Procedure Southern Bell Telephone & Telegraph Co., 384 So. 2d Act when such action was deemed infused with policy 650 (Fla. 1980), approving the transfer of those cases considerations for which the agency possessed special to the First District pursuant to Article V, section proficiency: “The court’s responsibility is to allow the 4(b)(2), which gives district courts “direct review of agency full statutory range for its putative expertise administrative action, as prescribed by general law.” and specialized experience.”1 A reviewing court, how- My position is simply that whatever reasons initially ever, is not an agency that has been delegated specified existed for authorizing exclusive appellate powers in powers which it is charged to administer. It is instead the First District have long since eroded. required to decide controversies between litigants, and A primary reason given for the transfer was that its decisions are to be based on legal authority, not on “[h]aving all appeals go to the same court would pre- policy considerations. clude conflicting decisions among the five districts and The First District has now had 31 years’ experience would develop a body of expertise in one locale.”4 In

Workers’ Compensation Section 16 News & 440 Report • First DCA – Exclusive Jurisdiction and, since the Unit’s creation, there has been no de- crease in the number of the remaining clerks, who now handle cases in other categories of law. so acting, the legislature had rejected the recommen- I admit there will always loom the prospect that dation of the Appellate Court Structure Commission if workers’ compensation orders are reviewed by all “that appeals be to all of the district courts rather than appellate districts, the opportunity for conflict in deci- to only one.”5 sions will persist, as it does for any other category of A second expressed reason to transfer workers’ com- cases currently handled by the five districts. The ques- pensation cases to the First District was the perceived tion I submit for the legislature, however, is whether it need “to alleviate the growing caseload and backlog [in is better to carve out for exclusive review one discrete the Industrial Relations Commission].”6 At the time of class of cases in the interest of consistency, which, in the transfer, the legislature also acted to abolish the the process, potentially shields such cases from further Commission.7 This second reason has long since been review by the Florida Supreme Court? Moreover, I resolved by the First District’s disposition of all cases have never heard any satisfactory answer to the ques- that were then pending before the Commission. tion of why should voters residing in other districts, As for the first reason, the prospect of conflict, if the where venue of the claim at the trial level was placed, First District’s review powers over orders of judges of be disenfranchised from deciding whether to retain the compensation claims were transferred to all district appellate judges who determine the ultimate issue of courts of appeal, it is suggested the opportunity for a claim’s compensability. conflict is not now nearly so great because of the rela- A recent failed attempt to transfer venue of a work- tively low and stable caseload filings during recent ers’ compensation appeal to the Third District Court years.8 Even if the numbers of workers’ compensation of Appeal in B.F. v. AMS Staff Leasing, No. 1D10-2688 cases should substantially rise, it is doubtful they will (Fla. 1st DCA Oct. 29, 2010), demonstrates change ever come close to approximating the numbers of filed in such regard must come from the legislature. In cases in other categories, which, of course, the First that case, the motion sought removal of the appeal District does not exclusively review, and the opportu- from the First to the Third District based on the nity for conflict as to them is presumptively greater.9 lack of geographic nexus between the Miami work- In fact, if the past downward trend in the filings for ers’ compensation case and Tallahassee. The motion petitions of benefits continues, from a peak of 151,021, asserted that because the Department of Labor and during the fiscal year 2002-03, to a low of 72,718 for Employment Security and the Division of Workers’ the fiscal year 2007-08,10 it is unlikely that any dra- Compensation had been removed as a party to all matic increase in the filings of workers’ compensation workers’ compensation claims and appeals,14 and the appeals will occur at any time in the near future. Office of Judges of Compensation Claims had been It is moreover plausible that the transfer of work- thereafter transferred to the control of the Division ers’ compensation cases to all five districts could be of Administrative Hearings, the legislature had sent achieved at a considerable savings in costs than that a clear message that workers’ compensation disputes required by the present system. For instance, when are to be resolved in the same manner as all other ad- the First District’s exclusive jurisdiction was created ministrative appeals. In denying the motion, the First in 1979, by chapter 79-312, section 3, Laws of Florida, District answered that, despite the statutory changes, $2,292,673 was appropriated from the Workers’ Com- “the workers’ . . . compensation law is administered by pensation Administration Trust Fund for the purpose the Department of Financial Services, the Agency for of funding the salaries of two additional judges and Health Care Administration, the Office of Insurance related expenses. More recently, since July 2008, a Regulation, the Department of Education, and the Workers’ Compensation Unit consisting of six attor- Division of Administrative Hearings, all of which are neys, including the Director, has been operating within headquartered in Tallahassee. § 440.015, Fla. Stat. the First District.11 During the fiscal year 2008-2009, (2010).”15 $1,981,688 was transferred by the legislature from the If the legislature declines my invitation to recon- Workers’ Compensation Administration Trust Fund sider its decision placing all workers’ compensation “to the First District Court of Appeal for workload cases in one appellate court, I respectfully ask the associated with workers’ compensation appeals and members of the First District to consider the adoption to implement a new workers’ compensation appeals of a less restrictive policy for certifying questions of unit.”12 Much of the same type of work now performed great public importance to the Florida Supreme Court, by the special Unit was formerly carried out by the two as applied to this category of cases. A survey of such law clerks assigned to each of the court’s 15 judges,13 cases during an 11-year-period reveals an extremely

Workers’ Compensation Section 17 News & 440 Report 24 • First DCA – Exclusive Jurisdiction fee to be awarded a claimant?” But for this court’s certification of the question regarding the statute’s construction, it is problematic whether the Supreme limited number containing certified questions. For Court would have granted review. the calendar years 1999-2009, 5,210 workers’ com- In deciding that the guideline fee formula in sub- pensation cases were filed with the First District,16 section (1) of the statute was ambiguous when read and a Westlaw search shows that during the same in connection with the reasonable fee provisions of time span the court certified questions of great public subsection (3), the court applied ordinary rules of importance in only 12 cases. Five of them related to statutory construction to arrive at its result, namely recurring questions as to the correct interpretation that stating where two statutory provisions are in of section 440.34(1), Florida Statutes (2003);17 three conflict, the specific provision controls over the general pertained to the question of the appropriate setoff provision, and the rule recognizing that a statutory required by section 440.20(15);18 two involved the ap- provision will not be construed in such a way as to 25 plication of the Escambia County Sheriff’s Department render it meaningless or absurd. v. Grice, 692 So. 2d 896 (Fla.1997), setoff;19 and two Several conclusions can be appropriately drawn asked unrelated, nonrecurring questions.20 Thus, the from the Murray decision. First, it was clearly not percentage of workers’ compensation cases involving based on any special expertise by the supreme court in certified questions to the total number of such cases its review of workers’ compensation cases, but rather filed during such time comprises only 0.23 percent. on long-established rules of statutory interpretation, Despite the fact the Supreme Court has discretion- rules that any court should be able to apply correctly. ary, rather than mandatory, authority to accept review As such, the Supreme Court was on equal footing with the First District in its construction of the statute. of certified questions, once the First District certifies Second, because, as the court recognized, “[s]tatutory a question, the supreme court has generally reviewed interpretation is a question of law subject to de novo them.21 The Supreme Court’s current limited powers review[,]”26 there was no need for it to defer to the of review of the First District’s workers’ compensation contrary construction reached by the district court. decisions are in sharp contrast to its former review Cases such as Murray, in which the statute under over orders of the Industrial Relations Commission,22 consideration is susceptible to more than one meaning, when it carried out its functions in a manner similar and which has never before been interpreted as to the to that of a second-tier appellate body.23 issue raised, are, it is submitted, particularly suitable In addressing the former provision of Article 5, sec- for certified questions under the test approved for re- tion 4(2) of the Florida Constitution of 1885, allowing view by the Supreme Court in Duggan v. Tomlinson.27 the Florida Supreme Court to review “by certiorari any Seventy-four years ago, during a time that the decision of a district court of appeal * * * that passes United States Supreme Court had ruled invalid key upon a question certified by the district court of appeal pieces of the New Deal’s legislation, Justice Harlan to be of great public interest[,]” the supreme court in Fiske Stone wrote the following dissent to one of the Duggan v. Tomlinson, 174 So. 2d 393, 394 (Fla. 1965), Court’s opinions: observed that the above provision was “particularly applicable to decisions of the district courts of ap- The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which peal of first impression, where no decisional conflict ought never to be absent from judicial consciousness. or other factor involving our certiorari jurisdiction is One is that courts are concerned only with the power invoked.” It is respectfully suggested that this instruc- to enact statutes, not with their wisdom. The other is tional advice is even more applicable today, by reason that while unconstitutional exercise of power by the of the legislative enactment of 1979, than when the executive and legislative branches of the government court first announced it 45 years ago. is subject to judicial restraint, the only check upon An excellent example of the application of the court’s our own exercise of power is our own sense of self- exercise of its review jurisdiction pursuant to the Dug- restraint. gan v. Tomlinson test is Murray v. Mariner Health, U.S. v. Butler, 297 U.S. 1, 78-79 (1936) (Stone, J., dis- 994 So. 2d 1051 (Fla. 2008). In Murray, the Supreme senting) (footnote omitted). Court accepted review based on a certified question In a somewhat similar vein, the only check on the from the First District, asking whether “the amended First District’s refusal to exercise its power to certify provisions of section 440.34(1), Florida Statutes (2003), depends ultimately on its own sense of self-restraint. clearly and unambiguously establish the percentage Although there are no court-adopted rules that pro- fee formula provided therein as the sole standard vide guidance to an appellate court on whether or not for determining the reasonableness of an attorney’s to certify, I would respectfully urge the First District,

Workers’ Compensation Section 18 News & 440 Report • First DCA – Exclusive Jurisdiction member of the Florida Bar. Endnotes: in this narrow field of the law in which its decisions 1 McDonald v. Department of Banking & Finance, 346 So. 2d 569, are sheltered from additional scrutiny, to heed the 583 (Fla. 1st DCA 1977). advice given by the Florida Supreme Court in Duggan 2 Article V, section 4(b)(1) confers on them general jurisdiction to hear appeals, which among other things, involves those “taken v. Tomlinson, and certify cases which fall within that as a matter of right, from final judgments or orders of trial courts, criteria. including those entered on review of administrative action . . . .” I submit that if the First District were to adopt a 3 § 440.271, Fla. Stat. more flexible policy of certifying such questions to the 4 W. Sadowski, J. Herzog, R. Butler, R. Gokel, The 1979 Florida Workers’ Compensation Reform: Back to Basics, 7 Fla. St. U. L. Supreme Court, it would contribute to an environment Rev. 640, 684 (1979) (footnote omitted). of openness in an area of the law that has, because of 5 Id at 660. This recommendation was approved by the chief the court’s institutional framework, foreclosed the op- justice of the Florida Supreme Court and the Board of Governors portunity for further review. And, more to the point, it of The Florida Bar. Id. would serve as a tacit acknowledgment of its proper, 6 Id. hierarchical judicial relationship, viz, that the First 7 Ch. 79-312, § 1, Laws of Fla. District Court of Appeal is not the Supreme Court of 8 The filings for workers’ compensation cases in the First District Florida, but rather one appellate court among five. for the calendar years 1999-2009, were as follows: 517 in 1999, 497 in 2005, Richard W. Ervin, III, of counsel with Fox & Lo- 419 in 2000, 408 in 2006, quasto, P.A., in Tallahassee, began his association with 434 in 2001, 426 in 2007, the firm in September 2007. His areas of practice are 460 in 2002, 465 in 2008, appellate and alternative dispute resolution (he is certi- 542 in 2003, 505 in 2009. fied as a circuit civil mediator). He is a former judge of 537 in 2004, the First District Court of Appeal, and served in that The above statistics were compiled by the Clerk’s office of the capacity from January 1977, until his retirement in First District Court of Appeal for the years 1999-2005, and 2009, January 2007. From 19831985, he occupied the posi- and they include both filed notices of appeals and petitions. Those tion of chief judge of that court. During his service as for the years 2006-2008 were collected by the Office of the State a judge, he wrote hundreds of judicial opinions for the Court Administrator, and they reference only notices of appeals. court and participated in far more cases in the panels 9 The 2009 Report of the Clerk of the First District shows that to which he was assigned. He also served as Public criminal cases comprised 49 percent of the court’s total caseload, and Defender, Second Judicial Circuit, from 19631977, 23 and 20 percent for civil and administrative appeals, respectively. and in such capacity he established the first appellate 10 There was an increase in filings for the last reported period of division in that system, and was responsible for filing 2008-09, of 1,153 petitions, for a total of 73,871, but this number was still considerably less than that for the year 1997-98, which was numerous briefs in both the First District Court of 77,337. See 2008-2009 Annual Report of the Office of the Judges of Appeal and the Florida Supreme Court. In 2008, he Compensation Claims at 10, 11. associated with Susan Fox in the preparation of an 11 Marjorie Renee Hill, Inside the First District Court’s Workers’ amicus curiae brief in Murray v. Mariner Health, 994 Compensation Unit, Vol. XXX, No. 1, News & 440 Report, 9 (Fall So. 2d 1051 (Fla. 2008), on behalf of Voices, Inc., in 2008) [hereafter Hill]. support of Petitioner’s position. 12 Conference Report on HB 5001, General Appropriations Act for Fiscal Year 2008-2009. He received his B.A. degree from Florida State Univer- sity in 1957, and the same year was admitted to the 13 Each of the five staff attorneys in the Unit has, according to former Director Hill, the responsibility of reviewing the briefs, the Phi Beta Kappa scholastic honorary fraternity. Upon record and the JCC’s order in each of matured cases for that year, his graduation from the College of Law, University of and thereafter performing their own independent legal research, Florida, in 1960, where he obtained his J.D. degree, and preparing a summary containing a statement of the relevant he served as an assistant United States attorney for facts, the parties’ arguments, and an analysis, and, upon the request the Northern District of Florida, from 19601962, of the primary judge, the preparation of a draft opinion (Hill at 10). and engaged in the private practice of civil law from 14 The motion explained: “The Division may now ‘intervene’ in a workers’ compensation appeal pursuant to Rule 9.180(e) R.A.P. 19631969. In addition to his membership in the Flor- within 30 days of the filing of a notice or petition invoking the ju- ida Bar, Ervin has been a member of the Tallahassee risdiction of the court but is specifically not a party until notice of Bar Association, the Florida Conference of District intervention is filed, Rule 9.180(e)(3) R.A.P.” Court of Appeal Judges, and was admitted to practice 15 B.F. v. AMS Staff Leasing, __ So. 3d __, __, 2010 WL 4273365, before the United States Supreme Court, the Court of *1 (Fla. 1st DCA Oct. 29, 2010). Appeals, Fifth Circuit, and the United States District 16 See note 8, ante. Court for the Northern District of Florida. In 2007, 17 See Buitrago v. Landry’s, 949 So. 2d 1046 (Fla. 1st 2006); Mur- he received the Florida Justice Association’s Judicial ray v. Mariners Health/ACE USA, 946 So. 2d 38, 39 (Fla. 1st DCA Award, and in 2010, he was recognized as a 50-year 2006); Campbell v. Aramark, 933 So. 2d 1255 (Fla. 1st DCA 2006);

Workers’ Compensation Section 19 News & 440 Report review by certiorari of such orders continued until the Commission • First DCA – Exclusive Jurisdiction was abolished in 1979, except for a two-year period when the district courts of appeal were conferred review authority. Ch. 57-270, § 2; Ch. 59-142, § 1. Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506 (Fla. 1st DCA 2006); Wood v. Florida Rock Industries, 929 So. 2d 23 See Knight v. Munday Plastering Co., 220 So. 2d 357 (Fla. 542 (Fla. 1st DCA 2006). 1969) (scope of court’s review of workers’ compensation orders broader than in traditional certiorari; court will consider whether 18 See HRS District II v. Pickard, 778 So. 2d 299 (Fla. 1st DCA the Commission acted strictly according to law and whether there 1999); State v. Herny, 776 So. 2d 932 (Fla. 1st DCA 1999); Conklin was competent substantial evidence to support the order); Garcia v. Ford, 737 So. 2d 602 (Fla. 1st DCA 1999). v. Continental Vending Mach. Corp., 176 So. 2d 329 (Fla. 1963) 19 See University of West Florida v. Mixson, 752 So. 2d 92 (Fla. 1st (supreme court reviews record to determine whether Commis- DCA 2000); GAB Business Services, Inc. v. Dixon, 739 So. 2d 637 sion’s findings are supported by competent substantial evidence); (Fla. 1st DCA 1999). Andrews v. C.B.S. Division, Maule Industries, 118 So. 2d 206 (Fla. 1960) (supreme court, in its review of Commission order affirming 20 See United States Sugar Corp. v. Henson, 787 So. 2d 3 (Fla. 1st order of deputy commissioner adverse to claimant on ground of DCA 2000) (Frye issue); City of Hollywood v. Lombardi, 738 So. 2d competent substantial evidence, would determine whether there 491 (Fla. 1st DCA 1999) (subrogation lien question). was such evidence in accordance with logic and reason to sustain 21 See Buitrago v. Landry’s, 3 So. 3d 1192 (Fla. 2009); Murray the finding of the deputy commissioner). v. Mariner Health, 994 So. 2d 1051 (Fla. 2008); U.S. Sugar Corp. 24 Murray v. Mariners Health/ACE USA, 946 So. 2d 38, 39 (Fla. v. Henson, 823 So. 2d 104 (Fla. 2002); Ford v. Conklin, 781 So. 2d 1st DCA 2006). 1070 (Fla. 2001); Fla. Dep’t of Transp. v. Hogan, 780 So. 2d 905 (Fla. 2001); Fla. HRS Dist. II v. Pickard, 779 So. 2d 266 (Fla. 2001); State 25 Id. at 1061. v. Herny, 781 So. 2d 1067 (Fla. 2001); City of Hollywood v. Lombardi, 26 Id. at 1056. 770 So. 2d 1196 (Fla. 2000); Dixon v. GAB Business Servs., Inc., 767 So. 2d 443 (Fla. 2000); Florida Dep’t of Transp. v. Johns, 755 So. 2d 27 Many of the First District’s recent opinions have involved novel 603 (Fla. 2000); City of Clearwater v. Acker, 755 So. 2d 597 (Fla. statutory interpretations of the Workers’ Compensation Law, par- 1999). ticularly constructions of the amendments incorporated in chapter 2003-412, Laws of Florida; a number of which, arguably, would meet 22 See Ch. 28241, § 9, Laws of Fla. (1953). The supreme court’s the Duggan v. Tomlinson test. *** SAVE THE DATE! *** The Florida Bar Continuing Legal Education Committee, The Workers’ Compensation Section The WCCP Association and IARP present: 2011 Florida Bar Workers’ Compensation Forum April 10 - 12, 2011

**NOTE THIS CHANGE OF DATE!!!!** Omni Orlando Resort at ChampionsGate 1500 Masters Blvd., ChampionsGate, FL 33898, (800) 843-6664 TO REGISTER ONLINE: PLEASE VISIT: http://www.wccp.org/events/event_details.asp?id=139992

Registration Fee Includes: Two-day CLE Seminar, Two Continental Breakfasts, Two Lunches,·Exclusive Law Firm Sponsored Receptions, Course Book & CD.

Workers’ Compensation Section 20 News & 440 Report A Defining Moment By Greg White, Esq., Orlando, FL

As lawyers, we are acutely attuned to the defini- statutory amendments to mean that the industrial tions of words. Entire cases hinge on definitions. I accident must be more than 50% responsible for the began thinking of this concept as I read the case of injury as compared to all other causes combined. This Staffmark v. Merrell, 47 So.3d 792 (Fla. 1st DCA 2010) new definition of major contributing cause simply and concluded that something had gone terribly wrong changed the claimant’s burden of proof and neither with the First District Court of Appeal’s definition of definition of major contributing cause made any refer- pre-existing condition as applied to contribution and ence to the term pre-existing condition. Nonetheless, apportionment. the Paradise court stated that the 2003 statutory The problem began in the case of Pearson v. Para- change of major contributing cause made it evident dise Ford, 951 So.2d 12 (Fla 1st DCA 2007). Pearson that the legislature intended for the term pre-existing involved a claimant that had two open workers’ com- condition to be defined as a pre-existing condition pensation cases. The first accident occurred in 1999 unrelated to an employment accident. However, the and the second accident occurred in 2004. Both acci- court did not back up this assertion with any sup- dents resulted in injuries to the claimant’s low back. port. In fact, the dissent even noted that, “the statute The JCC allocated 80% of the claimant’s condition to draws no distinction between a pre-existing disease or the 1999 accident and 20% to the 2004 date of accident. condition attributable to work in the same or another The JCC then went on to absolve the carrier from the industry and a pre-existing disease or condition with 2004 date of accident from any liability because they a non-industrial etiology. were less than 50% responsible and therefore, not the The majority opinions discussion of this point is not, major contributing cause of the claimant’s condition moreover, necessary to today’s decision.” Despite the and need for treatment. This left the claimant respon- courts unnecessary definition of pre-existing condition sible for 20% of the condition. However, the First Dis- in Paradise Ford, it did not alter the proper holding. trict Court of Appeal reversed this ruling and assigned However, when it was extended to apportionment in 80% of the liability to the carrier for the 1999 date the case of Staffmark v. Merrell, 47 So.2d 792 (Fla. 1st of accident and 20% of the liability to the carrier for DCA 2010), it led to completely illogical results. the 2004 date of accident. The First District Court of In Merrell, the court noted that apportionment is Appeal cited to the case of B&L Services Inc., v Coach applicable when a claimant’s injury is a result of an USA, 791 So.2d 1138 (Fla. 1st DCA 2001) which holds acceleration of or aggravation of a pre-existing con- that major contributing cause does not apply in the dition. The Merrell Court then noted that the term context of contribution between carriers. Instead, each pre-existing condition had yet to be defined in the ap- carrier shall be responsible for their pro-rata share of portionment statute, but had been defined in Pearson responsibility even if it is less than 50%. v. Paradise Ford, 951 So.2d (Fla. 1st DCA 2007) in the Unfortunately, and inexplicably, the Paradise court context of major contributing cause. The Merrell Court went unnecessarily further and defined the term then extended the definition to apportionment and pre-existing condition as used in the context of major reasoned that a pre-existing condition in the context contributing cause. This was completely unnecessary of apportionment also means a pre-existing injury or to the holding of the case. Nonetheless, the court con- condition unrelated to an employment accident. As in cluded that a pre-existing condition actually means Pearson, there is no logic in arbitrarily limiting pre- a pre-existing injury or condition unrelated to an existing conditions to non-industrial conditions and employment-related accident. However, no logical the following example illustrates the point. support was given for this conclusion. Suppose a claimant injures his back at work. He has In Paradise, the court noted that the original major surgery and then settles his case. Five years later, af- contributing cause definition was announced in the ter the settlement money is all gone, the claimant goes case of Closet Maid v. Sykes, 763 So.2d (Fla. 1st DCA out and gets a new job. During the course and scope of 2000) as the single greatest cause rather than a great- his new employment, the claimant re-injures his back er cause then all other causes combined. The Paradise at the exact same level as the prior injury and the court then went on to note that the legislature changed doctor opines that 70% of the claimant’s condition is the definition of major contributing cause in the 2003 due to the new industrial accident and 30% is related

Workers’ Compensation Section 21 News & 440 Report • A Defining Moment carrier is no longer liable to the claimant by virtue of the settlement and, “A carrier can obtain contribution pursuant to §440.42(4) only if the carrier from which to the prior injury for which the claimant received a contribution is sought is liable to the claimant for st settlement. Staffmark v. Merrell, 47 So.2d 792 (Fla. 1 payment of benefits.” Medpartners/Diagnostic Clinic DCA 2010) holds that the new employer/carrier can Medical Group, PA., v. Zenith Insurance Company, 23 not utilize apportionment because the pre-existing So.2d 202 (Fla. 1st DCA 2009). If this were not true injury happened at work. Therefore, the claimant then a carrier could never truly settle with the claim- can receive a monetary windfall from the first date ant because the carrier from a subsequent accident of accident and hold the second carrier accountable would always look for contribution from the prior for the entire new injury just because the first injury carrier that had already settled out with the claimant. happened at work. However, if the claimant’s first The only real solution to this dilemma is to recede injury happened away from work; and he received the from the arbitrary definition of pre-existing condition same settlement; and the second industrial accident assigned by the court in Pearson v. Paradise Ford, 951 results in the same 70% - 30% apportionment; then So.2d 12 (Fla. 1st DCA 2007) and define pre-existing the subsequent carrier could apportion out 30% of the conditions to mean all pre-existing conditions. responsibility. There is no rational basis for this dis- tinction. In both cases the claimant received the same Gregory D. White was born in Granite City, Illinois on monetary settlement for the pre-existing condition. January 10, 1964. Mr. White attended the University of The application of apportionment should not hinge on Central Florida on a soccer scholarship and graduated whether the pre-existing condition is related to work. in 1986 with a degree in electrical engineering. He went The Merrell Court ultimately reasoned that the on to work as an engineer at Martin Marietta before carrier’s remedy when the pre-existing condition is resigning to go to law school in 1993. He attended law related to an industrial accident is to look to §440.42(4) school at Nova Southeastern University and began which governs the division of liability when two or working at Hurley, Rogner, Miller, Cox, Waranch & more workplace injuries combined to cause a claim- Westcott as a law clerk in 1994. He graduated from ant’s need for benefits. This logic works perfectly well law school in 1996 and has practiced at Hurley, Rog- in the context of contribution between carriers when ner, Miller, Cox, Waranch & Westcott ever since. Mr. all workplace injuries involve open claims. However, White became a Florida Bar board certified workers’ the logic does not work when the claimant’s prior in- compensation lawyer in 2002. He resides with his three dustrial accident is settled. That is because the prior children in Orlando, Florida.

Cover Photos Workers’The Compensation Florida Bar Section Needed!!! News & 440 Report We need your cover photos! This is a great opportunity to be published in full color!

If you would care to submit a (large format) cover photo of workers’ comp related scenes, local courts or Florida landscapes, please send it to our Editor, Mike Winer at [email protected], or Program Administrator, Arlee Colman at [email protected]. Volume XXX, No. 1 Fall 2010

Workers’ Compensation Section 22 News & 440 Report The Florida Bar Workers’ Compensation Section Intermediate Trial Advocacy Workshop June 10-11, 2011 OJCC, Rhode Building, Miami 401 NW 2ND AVENUE, MIAMI FLORIDA 33128

This is a hands-on program limited to 24 attorney participants. The focus of the program includes practical application of the Rules of Evidence, direct and cross examination of expert and lay witnesses and trial strategy.

Over 300 lawyers have experienced this program which was recently endorsed by Deputy Chief Judge David W. Langham, OJCC. “The fact that this program exists is a tribute to you and the rest of the faculty. I regret that this program was not available when I was beginning my life as a young litigator. However, it appears to me that there is significant value in this program even for experienced litigators. I concluded that, with the possible exception of a Board Certification Review Course years ago, I have never been to a more practical, effective continuing education opportunity”

This year’s participating judges: Honorable Marjorie Renee Hill, Honorable W. James Condry, Honorable Henry H. Harnage, Honorable Alan M. Kuker, Honorable Geraldine Brown Hogan, Honorable E. Douglas Spangler, and Honorable Stephen L. Rosen.

The faculty attorneys: Jim Fee, Frederick J. Daniels, Karen Gilmartin, Steven Kronenberg, Ramon Malca, Ger- ald Rosenthal, Alison Schefer, Richard Sicking, Richard Thompson, Glen Wieland, Mark Zientz and Jeffrey I. Jacobs.

Whether you are a recent graduate or a seasoned professional, the Trial Advocacy Work- shop will change the way you approach trials, improving your performance exponentially. The trial conducted by participants will include issues involving the “fraud defense”, eligi- bility of undocumented workers to receive benefits, the applicability of major contributing cause and the use or exclusion of surveillance evidence.

The program is limited to twenty-four (24) attorney participants. To be considered for this year’s event prospective registrants are asked to fill out the application form on the next page and return it to [email protected]. Registration forms will be distributed in March. For questions please call Arlee J. Colman at: 850-561-5625.

Workers’ Compensation Section 23 News & 440 Report The Florida Bar Workers’ Compensation Section Intermediate Trial Advocacy Workshop Application Form

Name______Florida Bar #______

E-mail Address ______

Firm Name ______

Mailing Address ______

Phone Number ( ) ______ext. _____Fax Number ( )______

Please answer the following:

1) Have you handled workers’ compensation claims in the past? If yes, how many years?______

2) How many merits final hearings have you participated in? ______

3) Do you primarily work for the: o Claimant or o Defense

o Please check here if you have a disability that may require special attention or services. To ensure availability of appropriate accommodations, attach a general description o f your needs. We will contact you for further coordination.

Please fax applications to Arlee J. Colman at: 850-561-5825 or email: [email protected].

Workers’ Compensation Section 24 News & 440 Report Inadvertent Disclosure of Privileged Material By Richard Robbins & Thomas Owens, Barry University Dwayne O. Andreas School of Law

The possibility of inadvertently disclosing confiden- lege is “to encourage full and frank communication tial materials is a reality that every attorney faces.1 between attorneys and their clients, and thereby Inadvertent disclosure2 of privileged materials is even promote broader public interests in the observance more common when the case is complex and involves of law and administration of justice.”10 This privilege the production of large amounts of material.3 In the recognizes that legal advice serves public ends, and course of a large document production, it does not that such advice “depends upon the lawyer’s being take a stretch of the imagination to see how privileged fully informed by the client.”11 materials can escape the attention of the producing The attorney-client privilege is the only privilege individual. The likelihood of inadvertent disclosure recognized by every state; however, each state de- increases even further when the producing party is termines its own rules that govern the privilege.12 not an attorney. Attorney-client privilege in federal jurisdictions follow Inadvertent disclosure raises a number of issues rule 501 of the Federal Rules of Evidence, and the Su- related to the attorney-client privilege. One issue is preme Court has held that issues of privilege should whether inadvertent disclosure amounts to a waiver be determined on a case-by-case basis.13 of the privileged material. A second issue is whether Most courts use either the Wigmore or Restatement the attorney who inadvertently receives the material definitions of attorney-client relationship to determine may be subject to an ethical violation. Finally, an issue if the privilege exists. Under the Wigmore standard, a is what happens to the privileged material itself once client-relationship is established: (1) where legal ad- inadvertently disclose. vice of any kind is sought; (2) from a professional legal This article will discuss the duties of the sending advisor in his capacity as such; (3) the communications and receiving party with respect to confidential docu- relating to that purpose; (4) made in confidence; (5) by ments. Also, this article will highlight what, if any, the client; (6) are at his instance permanently protected; remedies are available when privileged documents (7) from disclosure by himself or by his legal advisor; (8) are inadvertently disclosed. except when the protection is waived.14 Under Restatement (Third) Governing Lawyers, I. Confidentiality the elements needed to establish an attorney-client There are three key doctrines of confidentiality; relationship are: (1) communication; (2) made between the attorney-client privilege; the work product privi- privileged persons; (3) in confidence; (4) for the purpose lege; and the ethical duty to maintain confidence.4 of obtaining or providing legal assistance to the client.15 Although these doctrines appear to be similar, they In either test, written or electronic communications do are in fact distinct.5 Attorney-client privilege protects not have to be identified as privileged or confidential against compelled disclosure of confidential commu- in order for the attorney-client privilege to attach.16 nications between client and lawyer.6 Work product Furthermore, a communication cannot be shielded extends beyond client communications and protects from discovery simply by labeling it confidential or material from discovery that a lawyer generates in privileged.17 The proper test is always “whether a preparation for litigation.7 Lastly, a lawyer’s ethical communication satisfies the elements necessary to duty to maintain confidence covers all information establish the privilege- not how the communication is relating to the representation, not just client commu- identified or labeled.”18 nication.8 B. Work Product A. Attorney-Client Privilege “The attorney-client privilege and the work product The oldest privilege for confidential communica- doctrine are separate and distinct.”19 tions known to the common law is the attorney-client A key difference between work product and attor- privilege.9 The purpose of the attorney-client privi- ney-client privilege is that a lawyer can disclose work

Workers’ Compensation Section 25 News & 440 Report • Inadvertent Disclosure the Model Rules of Professional Conduct (Model Rules) and require the information relating to cli- ent representation to be held in confidence, with two 34 product to a person not assisting the lawyer in pretrial, exceptions. The two exceptions are when the lawyer without losing immunity status, as long as the disclo- reasonable believes it is necessary to prevent the client sure does not pose a substantial risk of divulgence to from committing a criminal act the lawyer believes the other party in litigation.20 will likely result in impendent death or substantial Attorney work product doctrine is based on federal bodily harm, and to establish a claim or defense on 35 law and protects materials prepared in anticipation of behalf of the lawyer in particular controversies. The litigation that reveal an “attorney’s strategy, intended exceptions to the rules are permissive and not manda- lines of proof, evaluation of strengths and weaknesses, tory. Further, the duty of confidentiality remains after 36 and inferences drawn from interviews.”21 Materials the representation has ended. Confidentiality under and documents that are produced in the ordinary the Model Rules attaches to all information relating course of business or other non-litigation purposes do to the representation, not just matters communicated 37 not qualify as work product.22 Work product applies in confidence by the client. to material prepared in anticipation of litigation.23 Litigation does not need to be threatened or imminent, II. Waiver Through Inadvertent as long as there is potential litigation from claims Disclosure that have already arisen.24 However, in order for work With the number of attorney-client disputes on the product to apply, some courts require anticipation of rise, the issue of waiver is one of the most frequently litigation to be a substantial probability that litigation litigated issues of attorney-client privilege.38 When will ensue.25 considering waiver, the courts look too the existence Materials prepared in anticipation for litigation are and scope of a waiver based on a fairness standard.39 generally protected from discovery unless the party A waiver of the attorney-client privilege is absolute seeking discovery has a need of the materials and is and broadly construed against the party claiming the unable to obtain a substantial equivalent without an privilege.40 undue hardship.26 The rational for the work product The issue of involuntary waiver differs in federal doctrine is that “one party is not entitled to prepare and state jurisdictions. Traditionally, all courts fol- his case through the investigative work product of his lowed one of three approaches when determining if adversary where the same or similar information is there has been a waiver of privilege.41 First, courts available through original investigative techniques use the traditional rule addressing inadvertent dis- and discovery procedures.”27 closure, known as the Wigmore “strict responsibility The two types of work product; fact and opinion doctrine.”42 Under this doctrine, any disclosure of work product.28 Fact work product protects infor- privilege material waives the privilege. Second, some mation that relates to the case and is gathered in courts hold the “mere inadvertent production by the anticipation of the litigation.29 Opinion work product attorney does not waive the client’s privilege.43 Finally, consists of the attorneys mental impressions, conclu- the “majority rule” determines if an inadvertent disclo- sion, opinions, and theories.30 While fact work product sure by weighing five factors: (1) The reasonableness is subject to discover upon the showing of need or of the precautions taken to prevent inadvertent disclo- undue hardship, opinion work product usually remain sure; (2) the number of inadvertent disclosures; (3) the protected from disclosure.31 extent of the disclosure; (4) any delay and measures When work product is inadvertently disclosed to op- taken to rectify the disclosures; and (5) whether over- posing counsel, the party making the claim of privilege riding interests of justice would be served by relieving must notify the party that received the information.32 a party of its error.”44 After being notified, the party must “promptly return, A plurality of the courts analyzed wavier under sequester, or destroy the specified information and any the “majority rule;” however, on September 19, 2008, copies it has; must not use or disclose the information President Bush signed a Bill which amended the Fed- until the claim is resolved; must take reasonable steps eral Rules of Evidences. The new amendment includes to retrieve the information if the party disclosed it be- a rule that specifically addresses many of the problems fore being notified;” and may present the information to associated with waiver of the attorney-client privilege the court underseal for a determination of the claim.33 and work product doctrine.45 Section (b) of Rule 502 address waiver of the attorney-client privilege through C. Ethical Duties of Confidentiality inadvertent disclosure of privileged or protected mate- Ethical obligations of attorneys are governed by rial.46

Workers’ Compensation Section 26 News & 440 Report • Inadvertent Disclosure to have waived the privilege upon the inadvertent production of attorney-client privileged documents.51 This concept is codified in Florida law, which specifies In a federal proceeding, rule 502 provides that an the waiver of the attorney-client privilege must be inadvertent disclosure does not amount to a waiver voluntary.52 in either federal or state court if: (1) the disclosure Under Florida law, the courts do not apply a strict is inadvertent; (2) the holder of the privilege or pro- rule that counsel’s inadvertent production by itself 53 tection took reasonable steps to prevent the disclo- waives the attorney-client privilege. Instead, the sure; (3) the holder promptly took reasonable step courts follow the five factors outlined in the “majority 54 to rectify the error (if applicable) following Federal rule.” In Nova Se. Univ. v. Jacobson, an employee of the University was fired for, inter alia, negligence Rule of Civil Procedure 26(b)(5)(B).47 Although the and inefficiency.55 During her deposition, she testified advisory committee decided not to codify the five fac- that before she was fired she discovered a fax between tor “majority rule” used by most courts to determine school officials and the school’s law firm concerning if the privilege has been waived, under Rule 502 the matter.56 The law firm stated in the letter that courts may consider, but are not required to adopt, the school did not have enough performance issues to 48 the same guidelines used under the “majority rule.” fire her, and any termination would have to be based When analyzing whether inadvertent disclosure on a business decision.57 The attorney objected to the of privileged documents constitutes a waiver under letter during the deposition, claiming the letter was Florida law, Florida recognizes the waiver of such a protected by attorney-client privilege and noted that privilege “imports the intentional relinquishment of it was obviously sent accidently.58 The Court held a known right.”49 It has been recognized by Florida that such inadvertent disclosure did not amount to a courts that “inadvertent production is the antithesis waiver of the attorney-client privilege.59 The holding in of that concept.”50 Therefore, one cannot be deemed Nova Se. Univ., is consistent with Florida law. Under

Florida Insurance Commissioner Issues Order with Respect to NCCI’s Workers’ Compensation Rate Filing

On 10/15/10, Florida Insurance Commissioner the state’s average rates in 2009. Prior to the 2003 Kevin McCarty announced that he has advised legislative reforms, Florida consistently ranked No. the National Council on Compensation Insurance 1 or No. 2 in the country for the highest workers’ (NCCI) that he would approve a rate filing to in- compensation rates; however, post-reform Florida crease Florida’s workers’ compensation insurance rates have become some of the most competitive in rates by 7.8 percent to be effective January 1, 2011 the nation. for new and renewal business. Commissioner Mc- The Office conducted a public hearing on this Carty’s action is technically a denial of NCCI’s re- rate issue on October 5, 2010 in the Senator Jim cent rate filing that sought an 8.3 percent increase.1 King Committee Room in the Senate Office build- "The rate increase that that has been justified ing. NCCI presented its analysis; other industry would still give Florida the lowest rates in the experts and the Florida’s Consumer Advocate also southeast, and likely keep us in the top 10 states provided testimony. The Office’s analysis used a nationally for most affordable workers’ compensa- different medical trend factor than the one used in tion insurance," said Commissioner McCarty. "The the NCCI filing which led to a marginally different NCCI’s prior seven annual filings represent the outcome.2 largest consecutive cumulative decrease in rates in our state’s history." Endnotes: If NCCI accepts the Commissioner’s findings 1 See http://www.floir.com/pdf/NCCI112186-10.pdf and makes a re-filing, this would give Florida a 2 The Office prepared a graph available for viewing at http:// www.floir.com/pdf/WCCumulativeRateLevelGraph.pdf. This il- cumulative decrease of 61.9 percent since 2003, and lustrated the rate changes from 2003 to present. The last data keep Florida’s workers’ compensation rates below point is what the Office would approve.

Workers’ Compensation Section 27 News & 440 Report • Inadvertent Disclosure There is an additional ethical obligation imposed by Florida in the Professional Ethics of Florida Bar Opinion 06-2, which states: Florida Statutes, section 90.507, privilege cannot be “A lawyer who is sending an electronic document waived if disclosure is involuntary.60 However, under should take care to ensure the confidentiality of all Federal law, courts will consider whether inadvertent information contained in the document, including disclosures amounts to a waiver using the three-part metadata. A lawyer receiving an electronic document test outlined in Rule 502.61 Because federal courts should not try to obtain information from metadata that the lawyer knows or should know is not intended consider more than whether the disclosure was invol- for the receiving lawyer. A lawyer who inadvertently untary, the holding the case may have been different. receives information via metadata in an electronic document should notify the sender of the information’s III. Ethical Obligations Connected receipt. The opinion is not intended to address with Inadvertent Disclosures metadata in the context of discovery documents.”72 A states adopted rule of waiver aids the receiving To maintain the requisite knowledge and skill for attorney’s decision on what to do with inadvertently competent representation, the obligations laid out disclosed documents; however, the choice is ultimately in the Ethics Opinion may require a lawyer to con- an ethical decision.62 Although rules of evidence may tinually acquire training and education in the use of 73 permit, or even encourage, the use of inadvertently technology to protect client confidentiality. disclosed documents, the rules of ethics may suggest otherwise.63 IV. Remedies The ABA issued an ethical opinion in 1992, which A wavier of the attorney-client privilege in an discussed the ethical obligation of attorneys who inadvertent disclosure situation is examined by the inadvertently received privileged documents.64 This courts as an evidentiary question.74 When there opinion was abandoned after the adoption of the Model is an inadvertent disclosure of privileged information, Rules of Professional Conduct 4.4(b).65 Rule 4.4(b) courts have a variety of options to correct the situation. states, “A lawyer who revives a document relating to Such remedies include ordering the destruction of the the representation of the lawyer’s client and knows documents, the return of the documents, and possible or reasonably should know that the document was sanctions or disqualification of the attorney.75 inadvertently sent shall promptly notify the sender.”66 The most common remedy for inadvertently dis- However, in the comments, it is noted that, “whether closed documents are orders for the destruction or the lawyer is required to take additional steps, such return of inadvertently disclosed documents. In Heriot as returning the original document, is a matter of law v. Byrne, requesting counsel by accident was sent beyond the scope of these Rules, as is the question of 1,500 documents, through a third party electronic whether the privileged status has been waived.”67 imaging company, labeled either “confidential or In 1994, the Florida Bar issued an ethics opinion highly confidential.”76 Requesting counsel contacted on inadvertent disclosure that required “an attorney, the sending party and queried if any documents had upon realizing or reasonably believing that he or she been withheld on the basis of privilege.77 The sending has received a document or documents that were party responded that no privileged documents were inadvertently misdelivered, is ethically obligated to withheld.78 Shortly thereafter, the sending party real- promptly notify the sender of the attorney’s receipt of ized their mistake and requested the documents be the documents. It is then up to the sender to take any destroyed.79 further action.”68 The court rejected the defendant’s claim that the In 2006, the ethics opinion was codified in the five factors under the “majority rule” should apply.80 Rules Regulating the Florida Bar under “Respect Instead, because the case was in federal court, Rule for Rights of Third Persons.”69 The Rule states, inter 502 applies.81 Under 502 the court uses 3 factors to de- alia, “A lawyer who receives a document relating to termine if there was a waiver of privilege documents: the representation of the lawyer’s client and knows (1) was disclosure inadvertent; (2) were reasonable or reasonably should know that the document was steps to prevent the disclosure; (3) did the holder inadvertently sent shall promptly notify the sender.”70 promptly take reasonable step to rectify the error.82 By using the term “shall,” this rule requires a lawyer Ultimately, under the 502 analysis the court found to promptly notify the sender to permit the sender to the plaintiff satisfied the three factors and ordered take protective measures.71 However, this rule does the destruction of the privileged documents.83 not require the attorney take additional steps, such Under Florida law, when determining which rem- as returning the original documents. edy is appropriate, courts will use the five factors laid

Workers’ Compensation Section 28 News & 440 Report 91 • Inadvertent Disclosure to use the information as evidence. The court found that the privilege was not waived and that opposing counsel had used the information to gain a strategic out in the “majority rule.”84 In addition to the elements advantage. Further, the court noted that there was an within Rule 502, the “majority rule” looks to the scope ethical duty for “an attorney who receives confidential of discovery, the extent of the disclosure, and the over- documents of an adversary as a result of an inadver- 85 tent release is ethically obligated to promptly notify riding issue of fairness. Courts under the “majority 92 86 the sender of the attorney’s receipt of the documents.” rule” look to all 5 factors. However, the advisory In a separate order, the court held “[t]he receipt of committee notes that under Rule 502, courts may, but privileged documents is grounds for disqualification need not, use some or all of the 5 factors. Therefore, if of the attorney receiving the documents based on the heard in Florida, the defendant may have prevailed unfair tactical advantage such disclosure provides. on the five factor test analysis. Moreover . . . a movant is not required to demonstrate The most drastic measure is the disqualification of specific prejudice in order to justify disqualification.”93 the attorney. In Florida, the first case to deal with the Since there is no requirement that prejudice be shown, issue was General Acceptance Ins. Co. v. Borg-Warner and it is often difficult to measure how much of an Acceptance Corp., where the court inadvertently sent advantage, if any, is obtained due to the inadvertent the defendants file to the plaintiff’s counsel.87 After disclosure of privileged documents, the court must look plaintiff’s counsel reviewed the documents, the de- to the actions of the receiving lawyer in deterring if disqualification is warranted.94 fense moved to have plaintiff’s counsel disqualified To avoid establishing an automatic disqualifying because they had acquired an unfair advantage. 88 The rule, the court stated that an attorney who complied court denied the motion but noted: with the ethics opinion and promptly notifies the send- “Like so many other ethical considerations in the er and returns immediately inadvertently disclosed practice of law, perceptions are of the utmost importance. documents would not be subject to disqualification.95 Thus, how much of an advantage, if any, one party may gain over another we cannot measure. However, The factors to consider when determining if a lawyer the possibility that such an advantage did accrue should be disqualified were identified as (1) the ef- warrants resort to this drastic remedy for the sake of fects of the inadvertent disclosure; (2) the plaintiffs’ the appearance of justice, if not justice itself, and the defiance; and (3) the “unfair tactical advantage gained public’s interest in the integrity of the judicial process”89 from such disclosure.”96 Although the courts will look to see if a tactical In Hous. & Dev. v. Lisa Daly Lady Décor, the pro- ducing counsel sought the return of a letter contain- advantage is gained, some court have argued that ing a preliminary analysis of the litigation after gaining a tactical advantage is not enough to support inadvertently disclosing the information to opposing a remedy so drastic as to disqualify the attorney.97 In counsel.90 Upon receiving the request, opposing coun- Kusch v. Ballard, an order disqualifying an attorney sel reviewed the privileged documents and proceeded was vacated and the court expressed its disagreement

JOIN THE FLORIDA BAR’S LAWYER REFERRAL SERVICE! Every year, The Florida Bar Lawyer Referral Staff makes thousands of referrals to people seeking legal assistance. Lawyer Referral Service attorneys annually collect millions of dollars in fees from Lawyer Referral Service clients.

The Florida Bar Lawyer Referral Service: CONTACT: • Provides statewide advertising The Florida Bar Lawyer Referral Service, • Provides a toll-free telephone number 651 E. Jefferson St., Tallahassee, FL 32399-2300, • Matches attorneys with prospective clients phone: 850/561-5810 or 800/342-8060, ext. 5810. • Screens clients by geographical area and legal problem Or download an application from The Florida Bar’s • Allows the attorney to negotiate fees web site at www.FloridaBar.org. • Provides a good source for new clients

Workers’ Compensation Section 29 News & 440 Report • Inadvertent Disclosure Ultimately if the court finds the documents they will order the return or destruction of the documents, and in the rare case disqualify the attorney. If the court finds the privilege was waived, the receiving attorney with the method of disqualifying lawyers for inadver- gets to keep the material and may gain an advantage. tent disclosure. 98 Judge Glickstein showed particular There is also an ethical issue of what the receiv- concern for abusive tactics that could be implemented ing attorney should do. Under both Model Rules and to invoke the disqualification of counsel: Florida’s Rules, the receiving attorney has an ethical if we permit the receiving lawyer’s disqualification, duty to contract the sender if he knows or reasonably an unethical lawyer could intentionally fax a should know that the documents were inadvertently privileged communication to a formidable opponent, sent. However, under this hypothetical the sender was claim inadvertence, and successfully have the the adjuster not the adjuster’s lawyer. Technically, the lawyer disqualified. Moreover, we are not certain if the information was revealed by the lawyer to receiving attorney fulfilled his obligation by notifying the client, particularly if the lawyer believed the the sender. The question is whether he should also information was privileged and received inadvertently. have contacted the adjuster’s attorney? Finally, whatever the receiving lawyer’s client could In the second hypothetical, the adjuster sends the legitimately do with the information, he could also do claimant’s attorney information, which includes the without it.99 adjuster’s attorney’s thoughts outlining the strengths of the claimant’s case. This is an issue of waiver. Under Not only is the use of disqualifying an attorney looked down on because it provides a possible means of the hypothetical the disclosure was not inadvertent, in impropriety, but also because individuals have a right fact the adjuster intended for the receiving attorney to to counsel of their choice. By disqualifying an attorney, see the information. In Florida, the court will look to the court has in effect determined who can or cannot see if the disclosure was voluntary. Here it is. Under represent the individual.100 One final note, although Florida Statute 90.507, the privilege is waived if the not common, courts have also imposed sanction on at- holder of the privilege voluntarily discloses. In an ef- torneys for willfully failure to inform opposing counsel fort to intimidated the opposing counsel by disclosing of an inadvertent disclosure.101 the weakness of their case, the adjuster may have in provided access to their enter most thoughts and as a V. Revisiting the Hypos result weakened their own case in the process. In the first hypothetical the claims adjuster copied In the last hypothetical, the adjuster acknowledges and sent opposing counsel notes and letters from his the privileged information sent was done voluntarily. attorney. If the court finds this material to be work This would constitute a waiver. However, the issue product, then federal law would apply. Under Federal here is an ethical one. Under federal and Florida law, when determining if there has been a wavier of law, the receiving attorney is required to notify the work product privilege the court will look see if the sender if they believe they have received privileged disclosure was inadvertent, if the party took rea- documents by mistake. Here the receiving attorney sonable steps to prevent the disclosure, and if they had the intention of reopening the matter under a promptly took reasonable steps to rectify it.102 Under different theory of law. The question is if the attor- the facts, there would be an issue as to if the adjust- ney then has the obligation to inform the sender of ers attorney promptly took reasonable steps to rectify his intentions to allow the sender to take reasonable the error. The court may find that Five days was not steps to protect the privileged material? The rules only reasonable, however this will a factual determination require the receiving attorney notify the sender of the by the court. For instance, the adjuster may not have documents, nothing more. However, professionalism notified his attorney about the message for four days. should require the attorney to do more than the mini- This may indicate that the call five days later was in mal ethical standards require. In a profession where fact reasonable. your reputation is paramount, attorneys should not The court will also look to the steps the sender took take advantage of other people for their personal gain. to prevent the disclosure. For example, were the docu- ments marked confidential, were they kept in separate VI. Conclusion file cabinets, or were they mixed in with documents Where confidential information is mistakenly or in- produced in the ordinary course of business. The advertently sent, the act of sending alone does not con- more a party does to protect the privileged documents stitute a waiver. Reasonable care is the standard that from inadvertent discover the more likely the court should be used to determine if there is wavier. How- will find the second prong of the analysis is satisfied. ever, in today’s age of mass communication through

Workers’ Compensation Section 30 News & 440 Report 21 Fed. R. Civ. P. 26(b)(3); Auto Owners Ins. Co. v. Totaltape, Inc., 135 • Inadvertent Disclosure F.R.D. 199, 201 (M.D. Fla. 1990). 22 Fed. R. Civ. P. 26(b)(3). 23 Fed. R. Civ. P. 26(b)(3). electronic media, mistakes are bound to be made. The 24 Nat’l Tank Co. v. 30th Judicial Dist. Ct., 851 S.W.2d 193, 205 (Tex. 1993). privilege exits to protect the clients, and this should 25 Wichita Eagle & Beacon Pub. Co. v. Simmons, 50 P.3d 66, 85 (Kan. be considered when determining if something loses its 2002). privilege when inadvertently disclosed. 26 S. Bell Tel. & Tel.Co. V. Deason, 632 So. 2d 1377, 1384 (Fla. 1994). 27 Id. Richard Robbins is a Juris Doctor candidate, Decem- 28 Id. ber 2010, Barry University Dwayne O. Andreas School 29 Id. of Law; B.S. 2000; Thomas Owens is a Juris Doctor 30 Id. candidate, December 2010, Barry University Dwayne 31 Id. O. Andreas School of Law; B.S. 2001, East Carolina 32 Fed. R. Civ. P. 26(b)(5)(B). University. 33 Id. 34 Model Rules of Prof’l Conduct R. 1.6(b) (2004). Endnotes: 35 Id.; McClure v. Thompson, 323 F.3d 1233, 1250 (9th Cir. 2003). 1 Audry Rogers, New Insights on Waiver and the Inadvertent Disclosure 36 Kala v. Aluminum Smelting & Ref. Co. 688, N.E.2d 258, 262 (Ohio of Privileged Materials: Attorney Responsibility as the Governing Precept, 1998). 47 Fla. L. Rev. 159 (1995). 37 State ex rel. Okla. Bar Ass’n v. McGee, 48 P.3d 787, 791 (Okla. 2 Inadvertent disclosure is an “unintentional revelation of the 2002). contents of a document otherwise subject to the attorney-client privilege. Inadvertent Disclosure of Documents Subject to the 38 Roberta M. Harding, Waiver: A Comprehensive Analysis of a Consequence Attorney-Client Privilege, 82 MICH. L. REV. 598, 598. n.5 (1983). of Inadvertently Producing Documents Protected by the Attorney-Client Privilege, 42 Cath. U. L. Rev. 465, 465-68 (1993). 3 Id. 39 United States v. Woodall, 438 F.2d 1317, 1324 (5th Cir. 1970). 4 See Charles W. Wolfram, The U.S. Law of Client Confidentiality: Frame- 40 work for an International Perspective, 15 Fordham Int’l L.J. 529, 540-44 J. Triplett Mackintosch & Kristen M. Angus, Conflict in Confidentiality: (1992). How E.U. Laws Leave In-House Counsel Outside the Privilege, 38 Int’l Law. 35, 43 (2004). 5 Arthur Garwin, Confidentiality and Its Relationship to the Attorney- Client Privilege, in Attorney-Client Privilege in Civil Litigation 31 (Vincent 41 Abamar Hous. & Dev., Inc. v. Lisa Daily Lady Decour, Inc, 698 So. 2d S. Walkowiak ed., 2004). 276, 278 (Fla. 3d DCA 1997). 6 Model Rules of Prof’l Conduct R. 1.6 cmt. 3 (2009). 42 Id. 7 See Charles W. Wolfram, The U.S. Law of Client Confidentiality: Frame- 43 Id. quoting Georgetown Manor, Inc. v. Ethan Allen, Inc., 753 F. Supp. 936, 937 (S.D. Fl. 1991). work for an International Perspective, 15 Fordham Int’l L.J. 543. 8 Model Rules of Prof’l Conduct R. 1.6 cmt. 3 (2009). Arthur Garwin, 44 Abamar Hous., 698 So. 2d at 278. Confidentiality and Its Relationship to the Attorney-Client Privilege, in 45 Fed. R. Evid. 502.; Attorney Client Privilege and Work Product; Limita- Attorney-Client Privilege in Civil Litigation 31 (Vincent S. Walkowiak ed., tions on Waiver, Pub. L. 10-322 (Sept 19, 2008). 2004). 46 Fed. R. Evid. 502(b). 9 Upjohn Co. v. United States, 449 U.S. 383,389 (1981). 47 Fed. R. Evid. 502(b); Fed. R. Civ. P. 26(b)(5)(B) (“If information pro- 10 Id. . duced in discovery is subject to a claim of privilege or of protection as trial- preparation material, the party making the claim may notify any party that 11 Id. received the information of the claim and the basis for it. After being notified, 12 Daiske Yoshida, The Applicability of the Attorney Privilege to Commu- a party must promptly return, sequester, or destroy the specified information nications with Foreign Legal Professionals, 66 Fordham L. Rev. 209, 212 and any copies it has; must not use or disclose the information until the claim (1997). is resolved; must take reasonable steps to retrieve the information if the party 13 Fed. R. Evid. 501; Upjohn Co., 449 U.S. at 396. disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party 14 8 John Henry Wigmore, Evidence § 2292 (McNaughton Rev. 1961). must preserve the information until the claim is resolved.”). 15 Restatement (Third) of the Law Governing Lawyers § 68 (2000). 48 Fed. R. Evid. 502 advisory committee’s note. 16 See Chrysler Corp. v. Sheridan, No. 227511, 2001 WL 773099, at *3 49 Fla. Stat. § 90.502(1)(C) (1995); Preto v. Union Am. Ins., 673 So. 2d (Mich. Ct. App. July 10, 2001) (“[D]ocuments expressly marked ‘confiden- 521, 523 (Fla. 3d DCA 1996). tial’ or ‘privileged’ were protected under eth attorney-client privilege, the presence of those statements was not dispositive of the holdings.”). 50 Kusch v. Ballard, 645 2d 1035, 1039 (Fla. 4th DCA 1994). 51 Abanar Hous., 698 So. 2d at 278. 17 Ledgin v. Blue Cross & Blue Shield of Kan. City, 166 F.R.D. 469, 499 (D. Kan. 1996). 52 Id.; Fla. Stat. § 90.507 (1995). 18 Douglas. R. Richmand & William Freivogel, The Attorney-Client 53 Abanar Hous., 698 So. 2d at 276. Privilege and Work Product in the Post Enron Era, 1, 2, 3 (A.B.A. Sec. Bus. 54 Id. L. ed. 2004), available at http://www.abanet.org/buslaw/newsletter/0027/ 55 25 So. 3d 82, 84 (Fla. 4th DCA 2009). materials/11.pdf. 56 Id. 19 Elkton Care Ctr. Assocs. Lts. P’ship v. Quality Care Mgmt., Inc., 805 A.2d 1177, 1183 (Md. Ct. Spec. App. 2002). 57 Id. 20 Charles W. Wolfram, The U.S. Law of Client Confidentiality: Framework 58 Id. for an International Perspective, 15 Fordham Int’l L.J. 529, 540-44 (1992). 59 Id. at 88.

Workers’ Compensation Section 31 News & 440 Report • Inadvertent Disclosure

60 Fla. Stat. § 90.507 (1995). 61 Fed. R. Evid. 502(b). 62 Joshua K. Simko, Inadvertent Disclosure the Attorney-Client Privilege, and Legal Ethics: An Examinatino and Suggestion for Alaska, 19 Alaska L. Rev. 461, 477 (2002). 63 Id. 64 ABA Comm. On Ethics and Prof’l Responsibility, Formal Op. 92-368 (1992). 65 Model Rules of Prof’l Conduct R. 4.4(b) (2002). 66 Id. FloridaFlorida BarBar CLECLE 67 Model Rules of Prof’l Conduct R. 4.4 cmt. 2. 68 Prof’l Ethics of the Florida Bar, Op. 93-3 (2006). 69 Rules Regulating The Florida Bar, 4-4.4(b). For the Bar... 70 Id. 71 Rules Regulating The Florida Bar, 4-4.4 cmts. 72 Prof’l Ethics of the Florida Bar, Op. 93-3 (2006). By the Bar... 73 Id.; Rules Regulating The Florida Bar, 4-1.6(a) (2009). 74 Gloria A. Kistopek, To Peek or Not to Peek: Inadvertent or Unsolicted Disclosure of Docutments to Opposing Counsel, 33 Val. U. l. Rev. 643, 677 (1999). www.FloridaBar.org/cle 75 See, e.g., Bon Secours-Maria Manor Nursing Care Ctr. v. Seaman, 959 So. 2d 774, 775 (Fla. 2d DCA 2007); Akrey v. Kindred Nursing Ctrs. E., LLC, 837 So. 2d 1142, 1144 (Fla. 2d DCA 2003); Resolution Trust Corp. v. First of Am. Bank, 868 F. Supp 217, 221 (W.D. Mich. 1994). • Quality Speakers 76 257 F.R.D 645, 651 (N.D. Ill. 2009). 77 Id. 78 Id. • Online Registration 79 Id. 80 Id. at 654. • Convenient Locations 81 Id. at 655. 82 Fed. R. Evid. 502(b). 83 257 F.R.D at 669. • CLE Certification Credit 84 Abamar Hous., 698 So. 2d at 278. 85 257 F.R.D at 654. • Audio CDs / Video DVDs 86 Id. at 655; Fed. R. Evid. 502(b). 87 483 So. 2d 505, 505 (Fla. 4th DCA 1986). 88 Id. at 506. • Live Webcasts 89 Id. 90 698 So. 2d 276, 277 (Fla. 3d DCA 1997). • 24/7 Online CLE 91 Id. at 278. 92 Id. at 279. 93 Abamar Hous. & Dev. v. Lisa Daly Lady Décor, Inc., 724 So. 2d 572, 573 (Fla. 3d D.C.A. 1998). 94 Atlas Air, Inc. v. Greenberg Traurig, P.A., 997 So. 2d 1117, 1118 (Fla. 3d. DCA 2008). 95 Abamar Hou., 724 So. 2d at 573-74. 96 Id. 97 Etan Mark, Inadvertent Document Productions and The Threat of Attorney Disqualification, 83 Fla. Bar J. 8 (2009). 98 645 So. 2d. 1035, 1035 (Fla. 4th DCA 1994). 99 Id. 100 See generally General Acci. Ins. Co., 483 So.2d at 506. 101 Aerojet-Gen. Corp. v. Transp. Indem. Ins., 22 Cal. Rptr. 2d 862, 866 (Ct. App. 1993). 102 Fed. R. Evid. 502(b);

Workers’ Compensation Section 32 News & 440 Report Florida Office of Insurance Regulation Releases Annual Workers' Compensation Report

Wednesday, January 5, 2011

CONTACT: Jack McDermott Brittany Benner 850-413-2515 850-413-2515 [email protected] [email protected]

TALLAHASSEE, Fla. – The Florida Office of Insurance Regulation (Office) released to the Florida Legislature its 2010 Workers' Compensation Annual Report on the state of the workers' compensation insurance market in Florida. The report analyzed the availability and affordability of coverage for workers' compensation insurance in Florida with data for the calendar year 2009 with the benefit of information available from 2010 and concluded that Florida’s market is competitive.

"The 2010 report clearly demonstrates a healthy marketplace in Florida with multiple competitors, numerous options for purchasing insurance, and competitive premiums relative to other states," said Insurance Commissioner Kevin McCarty. "Maintaining competition and consumer choice is especially important for Florida businesses given the current economic environment."

The report shows the Florida market features 260 entities writing workers’ compensation insurance -- 255 private insurers, four self-insurance funds, and the Florida Workers’ Compensation Joint Underwriting Association (FWCJUA). The residual market, the FWCJUA, had 746 policies as of October 2010 with corresponding premiums of $5.5 million. This is a fraction of Florida’s overall workers’ compensation premium, which reported a total of $1.71 billion in written premium in the private market in 2009, ranking Florida seventh nationally.

On November 2, 2010, Florida Insurance Commissioner Kevin McCarty issued a final order approving the National Council on Compensation Insurance's amended rate filing for workers' compensation insurance rates to become effective Jan. 1. The 7.8 percent rate increase follows a decrease earlier in 2009 and still results in rate decreases accumulating to 61.9 percent since the 2003 reforms.

# # #

Workers’ Compensation Section 33 News & 440 Report Governor Appoints Two, One Retires, One Moves to Circuit, and a Final Goodbye By Judge David Langham, Pensacola, FL

The Office of Judges of Compen- help her serve with sound judg- sation Claims is honored by the ment,” said Governor Crist. “I am appointment of two new Judges. confident she will serve fairly and The Governor’s appointments on with great integrity.” Sojourner, December 16, 2010 returns the 56, has been a partner at Langs- OJCC to full strength, filling the ton, Hess, Augustine, Sojourner last vacancies resulting from Judge and Moyles since 1998. Previously, Hafner’s retirement and the unfor- she practiced at the Law Offices of tunate, untimely passing of Judge Jeffrey Slater, formerly known as Farrell in Orlando last summer. Frank and Brightman, from 1987 to Judge Hafner served many years, 1998. From 1984 to 1987, Sojourner with compassion, dedication and en- HOLLEY HUMPHRIES was a partner at Daze and Sojourn- thusiasm. The OJCC and the people er. She practiced at Haas, Boehm, of Florida are diminished by her departure and she will Brown, Rigdon and Seacrest between 1981 and 1983, be missed. Judge Hafner was a consistent and persistent and was a staff attorney for the State of Florida’s Fifth adjudicator who was honored to serve as Judge, and it District Court of Appeal from 1979 to 1981. Sojourner showed in the way she presided. Congratulations Judge received her bachelor’s degree from the University of Hafner on a well-earned retirement! Florida and her law degree from the Stetson University Judge Mark Hofstad was appointed by Governor Crist College of Law. to the Circuit bench last Summer. Judge Hofstad was a “Ray brings to the bench enthusiasm to enhance the compassionate and dedicated adjudicator, who served in legal profession, as well as a strong commitment to public Lakeland District for many years, presiding over a busy and community service,” said Governor Crist. “He main- and challenging docket. Such transfers are always a tains a high level of integrity and respect for the law and challenge, compared to a retirement, just because of the every person involved in its administration.” timing. Many Judges stepped in to assist in Lakeland Holley, 41, has practiced with Amy Warpinski as in- following Judge Hofstad’s departure. house counsel for Liberty Mutual since 2002 and was a Judge Farrell worked in all aspects of workers’ com- staff attorney with TNT Logistics North America from pensation, and had made it a career. He sought to cap 2000 to 2002. He served as an assistant state attorney that career with service as a Judge, and was appointed for the Fourth Judicial Circuit from 1997 to 2000. He to replace Judge Thurman in Orlando. Joe was patient, received his bachelor’s degree from the Stetson Univer- professional and intelligent. He passed away in the sum- sity, a master’s degree in public administration from mer of 2010 after a brief illness. University of North Florida, and a law degree from the Judge Stephen Rosen has served two years in Jack- Stetson University College of Law. Judge Holley will sonville with distinction and assumed his new role in manage the division formerly handled by Judge Rosen. St. Petersburg December 27, 2010 replacing the Judge He will also manage a docket of “out of district” cases in Hafner. Judge Pitts served Jacksonville for the last year, the Ft. Lauderdale District. and transferred December 1, 2010 to Orlando to replace “Throughout Ralph’s career, he has shown great re- Judge Farrell. Their undertaking these new roles is great spect for the judicial system and the tremendous impact news for Orlando and St. Petersburg. it has on people’s lives,” Governor Crist said. “He brings The OJCC is responsible for determinations of entitle- considerable knowledge and experience to the Office and ment to disputes workers’ compensation benefits. The is qualified to serve fairly and ethically.” efficient and unbiased consideration of those disputes Humphries, 57, practiced with Boyd and Jenerette. He is critical to Florida’s workers and employers. Although has practiced as either a sole practitioner or intermit- the Judicial vacancies of 2010 have presented challenges, tently with partners and associates since 1979. From the overall effectiveness of this Office has been main- 1976 to 1979, he was an assistant public defender for tained by the dedication and focus of the other Judges the Fourth Circuit. He received his bachelor’s and law around the state. degrees from the University of Florida. Judge Humphries On October 1, 2010 Governor Crist appointed Marga- will handle Judge Pitts’ former division in Jacksonville, ret Sojouner to serve as Judge in Lakeland. On December and will manage a docket of “out of district” cases in the 16, 2010 Governor appointed William R. Miami District. “Ray” Holley and Ralph J. Humphries, both of Jackson- The OJCC is proud of our newest Judges. I know that ville, as Judges of Compensation Claims. their experience and dedication will benefit the Jackson- “Margaret’s extensive experience practicing law will ville District Office and the State of Florida.

Workers’ Compensation Section 34 News & 440 Report The Florida Bar Continuing Legal Education Committee and the Workers’ Compensation Section present Critical Errors in Trying Your Case Before DOAH COURSE CLASSIFICATION: INTERMEDIATE LEVEL Telephonic Seminar: Tuesday, February 8, 2011 12:00 noon - 1:30 p.m. EST Course No. 1160R DIAL IN AND GET UP-TO-DATE!

What distracts or persuades the judge? This question haunts the practitioner, and if it doesn’t, it should. Persuade and prevail, distract and fail. This trip through the effective presentation of a case will prime the new practitioner, reaffirm the careful practitioner and reinforce even the most experienced practitioner.

11:50 a.m. – 12:00 noon (EST) How Telephone Broadcasting Works: Connection Time Registrants will receive dial-in connection instructions two days 12:00 noon – 12:05 prior to the scheduled course date via e-mail. In the instructions, Welcome and Introductions you will be given a personal identification number (PIN) and a Dawn Traverso, Aventura toll-free number for you to access the program. If you do not have an e-mail address, contact Order Entry Department at 12:05 p.m. – 1:15 p.m. 850-561-5831, two days prior to the event for the instructions. Critical Errors in Trying Your Case The operator will verify the entry of each call. Only those at- Judge David Langham, Division of Administrative torneys registered for this seminar will receive CLE credit. CLE Hearings, Pensacola credit will be applied within two weeks after the attendance I. Effective evidence presentation record has been verified. a. Outlining the outcome b. Organizing the presentation effectively CLE CREDITS c. Effective opening statement or trial memo CLER PROGRAM II. The distraction of evidentiary objections (Max. Credit: 2.0 hours) a. Effective listening General: 2.0 hours Ethics: 2.0 hours b. Understanding alternatives c. Effective response CERTIFICATION PROGRAM (Max. Credit: 1.5 hours) III. Ordering evidence Workers’ Compensation: 1.5 hours a. Primacy, recency, frequency b. Organization and logic c. Context versus confusion REGISTRATION FEE: IV. Needless repetition • Member of the Workers’ Compensation Section: $95 a. The fine line between bolstering and boredom • Non-section member: $145 b. “Just in case” coverage • Full-time law college faculty or full-time law student: $60 V. Effective closure • Persons attending under the policy of fee waivers: $0 a. Repetition, for both frequency and recency Members of The Florida Bar who are Supreme Court, Federal, DCA, circuit judges, county judges, magistrates, judges of compensation 1:15 p.m. – 1:25 p.m. claims, full-time administrative law judges, and court appointed hearing Question and Answers officers, or full-time legal aid attorneys for programs directly related to their client practice are eligible upon written request and personal use 1:25 p.m. – 1:30 p.m. only, complimentary admission to any live CLE Committee sponsored Closing Remarks course. Not applicable to webcast. (We reserve the right to verify employment.)

To register for this seminar, or order the audio CD, go to flORIDabar.org/CLE and search by “Sponsor” then “Workers’ Compensation Section” OR by course number 1160R.

Workers’ Compensation Section 35 News & 440 Report The Florida Bar Foundation: A Cause We Can Share By John A. Noland, President, The Florida Bar Foundation

I hope lawyers in Florida will join me in supporting a common cause: The Florida Bar Foundation. The Foundation, a 501(c)(3) public charity, is a means through which lawyers can support a commonly held belief that everyone should have access to legal representation – regardless of his or her ability to pay. The Florida Bar Foundation’s mission to provide greater access to justice is accomplished through fund- ing of programs that expand and improve representation and advocacy for the poor in civil legal matters; improve the fair and effective administration of justice; and make public service an integral component of the law school experience. In 1981, financial support for the Foundation increased significantly when the Florida Supreme Court adopted the nation’s first Interest on Trust Accounts (IOTA) program. Over the past 29 years, the Florida IOTA program has distributed more than $350 million to help hundreds of thousands of Florida’s poor receive critically needed free civil legal assistance and to improve Florida’s justice system. More than 30 percent of the total funding for legal aid organizations in Florida comes from The Florida Bar Foundation. Domestic violence, predatory lending and foreclosure, and access to public benefits are among the types of cases flooding legal aid offices throughout the state. For the sake of those throughout Florida with nowhere else to turn for legal help but to Legal Aid, your support of The Florida Bar Foundation is vital. Gifts to the Foundation provide added value to your local legal aid organization because of Foundation initiatives such as salary supplementation and loan repayment programs to help retain legal aid attorneys, a Summer Fellows program that places law students at legal aid organizations for 11 weeks each summer, new technological efficiencies such as a statewide case management system, and training opportunities for legal aid staff attorneys. The Foundation is unique as a funder in providing leadership, along with its financial support, by working with its grantees to improve Florida’s legal services delivery system and identifying and addressing the legal needs of particularly vulnerable client groups. You can learn more about the Foundation at www. floridabarfoundation.org. I hope you will come to consider The Florida Bar Foundation one of your charities. It’s truly an organiza- tion in which all of us, as Florida attorneys, can take tremendous pride.

Workers’ Compensation Section 36 News & 440 Report P.O. Box 1553 • Orlando, Fl 32802-1553 407-843-0045 • 800-541-2195 • Fax: 407-839-0287 www.flabarfndn.org

FACT SHEET

Mission: To provide greater access to justice through grants that: • Expand and improve representation and advocacy on behalf of low-income persons in civil legal matters • Improve the fair and effective administration of justice • Promote service to the public by members of the legal profession by making public service an integral component of the law school experience.

Established: 1956 as 501(c)(3) public charity to foster law-related public interest programs. Total Grants Awarded in FY 2009-10: $37.1 Total Grants Awarded since 1982: $352.4 million Management and General, and Fundraising expenditures as a percentage of total expenses for FY 2009-10: 8.9 percent 2010-11 operating budget (management and general, program-related and fundraising): $4.38 million. 22 FTE staff. General Support grants for Legal Aid in Florida for FY 2009-10: Provides 32.6 percent ($29.38 million) of legal services funding in Florida at 31 organizations serving all 67 Florida counties. Grants support work of 400 full-time and 40 part-time legal aid attorneys and grantees’ pro bono programs involving more than 12,300 volunteers. Legal Aid cases handled with general support funds in calendar year 2009: 100,367 Children’s Legal Services grants awarded in FY 2009-10: $2.8 million to 23 grantees. 100% of donations to Lawyers’ Challenge for Children on Florida Bar Fee statement go to CLS grants. 2010 Legal Services Summer Fellows Program: Supported 40 law students as 11-week Summer Fellows at Foun- dation legal aid grantees. The students were from all 11 Florida accredited law schools and out-of-state law schools such as George Washington University and the University of Pennsylvania. Improving Florida’s Justice System: The Foundation’s Improvements in the Administration of Justice (AOJ) Grant Program provides funding in four areas: • Improvement in the operation and management of the court system • Improvement and reform of the criminal, civil and juvenile justice systems • Public education and understanding about the law, including law-related education • Promotion and support for public interest legal representation The Innocence Project of Florida, which has exonerated more than 11 wrongly convicted people using DNA evi- dence, is an example of an AOJ-funded project. AOJ funds also support the Voluntary Bar Association Community Service Grant Program. Fundraising: More than 2,000 Florida lawyers and members of the general public have made a pledge of $1,000 to become lifetime members of The Florida Bar Foundation and support its core mission ($200/year or $100/year for young lawyers, judges, government and nonprofit employees). The Foundation also offers charitable gift annuities and other forms of planned giving and has received cy pres awards from state and federal cases. Last updated 7/2010 The Florida Bar Foundation P.O. Box 1553 • Orlando, Fl 32802-1553 407-843-0045 • 800-541-2195 • Fax: 407-839-0287 www.flabarfndn.org

Workers’ Compensation Section 37 News & 440 Report Statute of Limitations: Remedial care By Jonathan Cooley, Esq., Fort Myers, FL

Florida Statutes s. 440.19(2) provides that the with the E/C’s knowledge, constitutes remedial treat- “furnishing of remedial treatment, care or attendance ment furnished by an E/C that tolls the statute of shall toll the limitations period,” for one year from the limitations.” The Court cited both Fuster v. Eastern date of such “payment.” “Remedial treatment” is not Airlines, 545 So.2d 286 (Fla. 1st DCA 1988) and Taylor v. defined in the statute. The Courts have interpreted Metro Dade County, 596 So.2d 798 (Fla. 1st DCA 1992) “remedial” to mean treatment mitigating the effects of that held that the wearing of a prescribed back brace an injury, including palliative care. See City of Orlando tolled the statute of limitations if worn with knowledge v. Blackburn, 519 So.2d 1017, 1018) of the employer or carrier. For the practitioner, determining whether some- Additionally, the Court cited the case of Lee v. City one received remedial treatment had seemed fairly of Jacksonville, 616 So.2d 37 (Fla. 1993) wherein the simple. However, the Court’s most recent decision on Florida Supreme Court held that the claimant’s con- the issue will require the parties to examine the issue tinuous use of a medical device constituted remedial more closely; and will likely open up the potential for treatment when the employer or carrier had actual litigation on many files presumed closed. knowledge of the use. However, if the employer/carrier The issue was most recently addressed in the case did not have knowledge of use, the care in question, of Gore v. Lee County School Board, 2010 WL 3421581 specifically a TENS unit, was not remedial. (Fla. 1st DCA 2010). This case addressed the 1993 In reversing the Judge of Compensation Claims, amendments to s. 440.19(2), specifically, the Legis- the Court in Gore found that there was no reason to lature’s deletion of an exemption from the statute of treat a prosthetic differently than any other medically limitations for cases dealing with prosthetic devices. necessary apparatus, as the prosthetic was intended The claimant, Gore, had a partial knee replacement, to mitigate the effects of the injury. reaching maximum medical improvement in 2003. No The issue of remedial care was also addressed in indemnity was paid after 2003. No indemnity benefits Ginsberg v. ChemMED Corp., 929 So.2d 633 (Fla. were paid after 2003. A Petition for Benefits was filed 1st DCA 2006). In Ginsberg, the Court held that the in 2009, which the carrier denied, asserting the stat- Claimant’s use of prescribed medication during the ute of limitations defense. The Claimant argued the period of prescription constituted remedial care with continued use of the replacement knee, constituted the Employer/Carrier’s knowledge, and tolled the the continued provision of remedial care. statute of limitations. The Judge of Compensation Claims denied the Peti- The concurring opinion in Ginsberg noted that a tion for Benefits, accepting that the Legislature’s dele- bright line rule would be preferable in enforcing a tion of the statutory exemption from the statute for statute of limitations defense. In dealing with the prosthetic devices was done with the intent to amend prescription issue, the concurring opinion notes that or alter the law. The First District Court of Appeals the furnishing of remedial treatment could be the date reversed the decision of the Judge, holding that the the prescription was filled. prosthesis constituted a medical device. Prior to the 1993 amendments to s. 440.19, Florida The Court held, “It is well-established that a claim- Statutes provided that, ant’s use of a prescribed medical device or apparatus “(1)(a) The right to compensation for disability,

Workers’ Compensation Section 38 News & 440 Report • Statute of Limitations such payment. It would seem as though the Legis- lature did assign a bright line rule in rewriting the statute to toll the statute from the date of payment. rehabilitation, impairment, or wage loss under this However, the Court has not addressed this approach. chapter shall be barred unless a claim therefore which Therefore, it will be necessary for those handling meets the requirements of paragraph (e) is filed within workers’ compensation claims, to determine whether 2 years after the time of injury, except that, if payment the Claimant has received “remedial” treatment of compensation has been made or remedial treatment including the use of devices, prosthetics or prescrip- or rehabilitative services have been furnished by the tions. Additionally, it is necessary to determine employer on account of such injury, a claim may be filed within 2 years after the date of the last payment whether the Employer or Carrier had knowledge of of compensation or after the date of the last remedial the continued receipt of such care. Finally, it would treatment or rehabilitative services furnished by the appear as though for those case dealing with joint employer.” replacement, there would be no statute of limitations as the carrier will have actual knowledge of use of In 1993, the Statute was amended to state, the replaced joint. (2) Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to Jonathan L. Cooley is an associate of Hurley, Rogner, either a notice of injury or a petition for benefits shall Miller, Cox, Warranch & Westcott, where he practices toll the limitations period set forth above for 1 year workers’ compensation defense. He began working for from the date of such payment. HRMCWW at their Fort Pierce office in 2003. In 2008, he opened the firm’s Fort Myers location. He was admit- The Court does not appear to put any weight on the ted to the bar in 2002, after earning a bachelor of sci- change to the statute that indicated the limitations ence in Communications from Liberty University and period would be tolled for one year from the date of juris doctorate from Nova Southeastern University.

Signatures sought for Jake Schickel’s Bar Presidential Campaign

Dear Fellow Section Members: After you have accumulated as many signa- tures as you can, please send the form directly Our colleague, Jake Schickel, is running for back to Jake at the following address: the position of President Elect of The Florida Jake Schickel Bar. In order to qualify, he needs 900 signa- Coker, Schickel, Sorenson & Posgay PA tures in support of his candidacy. 136 East Bay Street I have personally observed the hard work and Jacksonville, FL 32202 dedication Jake has put into his work, not Phone: (904) 356-6071, Fax: (904) 353-2425 only on behalf of our Section, but also for The [email protected] Florida Bar. He truly exemplifies what the President of our Bar should be. I also think it Thanks and Best of Luck to Jake! is time that we had a Workers’ Compensation lawyer at the helm of the Bar. Accordingly, as Mike Winer, Esquire loyal editor of your publication, I am asking Law Office of Michael J. Winer, P.A. for your support in obtaining the requisite 110 North 11th Street, 2nd Floor number of signatures for Jake. Tampa, Florida 33602 Please obtain as many signatures as possible Phone: (813) 224-0000 by accessing Jake’s petition at www.jake- Fax: (813) 224-0088 schickel.com [email protected]

Workers’ Compensation Section 39 News & 440 Report Attacks on Workers’ Compensation Immunity Increase Both Workers’ Compensation and Liability Exposures

By Bill Rogner, Esq., Orlando, FL

Workers’ compensation immunity is under attack industry gave up traditional common law defenses. and weakening. First, improvident denials of work- The workers’ compensation law was approved by the ers’ compensation claims now expose the employer Supreme Courts of both Florida and the United States. and carrier to potentially un-capped liability. Second, See South Atlantic S.S. Co. of Delaware v. Tutson, 190 repeated denials of benefits to seriously injured work- So. 675 (Fla. 1939). ers, which may show an intention to harm the claim- The majority of workers’ compensation in Florida ant, expose the adjuster, carrier, TPA, employer, case is provided through insurance. The standard work- manager, or defense attorney to tort liability. As a ers’ compensation insurance policy consists of two result of these two trends, it is imperative to establish primary parts. They are known as Part I and Part II coordination between the workers’ compensation and (formerly coverage A and coverage B). A Florida work- liability decision makers along with robust quality ers’ compensation policy is essentially a standardized control procedures within claims handling operations. contract. It includes a declarations page; coverage Workers’ compensation has its roots in early 1800’s form; endorsements; and statutory requirements. In Germany and England. In those countries “sickness making a coverage determination, one must obtain funds” were created to benefit workers who had es- the entire policy and read it. sentially no rights under the law. Prior to workers’ Part II of the standard workers’ compensation compensation laws, a U.S. employer was liable under policy states that “This employer’s liability insurance the common law only when there was a breach of the applies to bodily injury by accident or bodily injury by obligation to provide a reasonably safe work place; disease... that arises out of and in the course and scope to provide reasonably safe tools, materials, and ma- of employment.” To be covered, the injury must occur in chinery; and to hire suitable and competent fellow a designated coverage area or state during the policy servants. Moreover, the employer was protected from period. If the injury is a disease it must be caused or suit by common law defenses such as contributory aggravated by conditions of the employment. negligence and assumption of the risk. Most injured If a claim is potentially covered then exclusions workers went without legal remedy entirely while, on must be considered. Typical exclusions relate to con- the other hand, a select few received large verdicts tractual obligations; obligations imposed by workers’ after time consuming litigation. compensation laws; an injury intentionally caused Workers’ compensation began in Florida with or aggravated by the employer; damages arising the passage of House Bill 29 in May 1935. Governor from demotion, evaluation, harassment, or person- Sholtz successfully pressed for the law and argued nel practices; and bodily injury to an employee while that workers’ compensation was needed so that busi- employed in violation of the law with the employer’s ness and industry in Florida could grow and compete. actual knowledge. An employer who obtains workers’ The essential idea was a tradeoff between labor and compensation coverage for its employees gains statu- industry. Labor gave up the right to sue in tort, and tory immunity from suits filed by injured employees

Workers’ Compensation Section 40 News & 440 Report • Attacks on Immunity DCA 1990), an illiterate claimant was injured while working as a dishwasher at the Pink Pussycat Club. The carrier accepted the claim as compensable, paid Occasionally an injury arises and there is a ques- medical bills, and sent the claimant a check for TTD. tion as to whether the injury is covered by workers’ The check, however, was sent to the employer who compensation. An employer or carrier that denies the cashed it and kept the money. The employer paid the claim entirely risks the possibility of the claimant then claimant’s rent and food while he was disabled, but suing the employer in tort. When the employer then then deducted those amounts from the claimant’s defends the suit on the basis of workers’ compensation paychecks. No one ever specifically told the claimant immunity the claimant may argue that the employer is about workers’ compensation. The appellate court re- estopped from raising the defense based on the denial versed a summary judgment in favor of the employer of the workers’ compensation claim. Elements of estop- in a subsequent tort suit. The court reasoned that it pel are: (1) a representation as to a material fact that was for the jury to decide whether the employer or is contrary to a later-asserted position; (2) reliance carrier failed to inform the claimant about workers’ on that representation; and (3) a change in position compensation benefits and whether “the employee was detrimental to the party claiming estoppel, caused by led to believe that no workers’ compensation benefits the representation and reliance thereon. See Bristol were available.” West Ins. Co. v. Albertson, 41 So.3d 378 (Fla. 4th DCA The first modern application of estoppel came in 2010). Byerly v. Citrus Publishing, 725 So.2d 1230 (Fla. 5th The first important workers’ compensation estop- DCA 1999). The claimant completed work and clocked pel case is Quality Shell Homes and Supply Co. v. out. She was walking to pick up some boxes to take Roley, 186 So.2d 837 (Fla. 1st DCA 1966). Mr. Roley, home when she tripped and was injured. The claimant the employee of a subcontractor, was injured. The filed a claim for workers’ compensation benefits which subcontractor had no workers’ compensation cover- was denied. The denial stated that the “injury did not age. The claimant inquired as to whether the general rise out of the course and scope of employment.” The contractor would pay the medical bills. The manager claimant then filed a tort action which was defended of the general contractor stated that the bills would on workers’ compensation immunity. The trial court not be paid. He also wrote a letter stating: “We can- granted summary judgment for employer. The appel- not make payment as Mr. Roley was not working for late court reversed. They reasoned that the claimant Quality Homes. He was working for a contractor that was presented with a “Hobson’s choice.” How could was building a Quality Home, and therefore the con- there be no remedy in either system? The case was tractor is responsible for payment as all contractors remanded for trial. are suppose (sic) to have insurance on all men who Tractor Supply v. Kent, 966 So. 2d 978 (Fla. 5th DCA work for them.” The subcontractor asked the general 2007) involved a claimant allegedly injured through contractor for proof of insurance. The request was exposure to hydrated lime dust. The claim was denied ignored, although the general contractor did have by the employer/carrier because the “condition was workers’ compensation coverage. The court held that pre-existing and not related to employment.” The the general contractor was estopped from raising im- claimant then filed a tort claim which was defended on munity in the subsequent tort suit and affirmed a jury immunity. The trial judge ruled that employer/carrier verdict in favor of the claimant. was estopped from raising the defense. The appellate In Elliott v. Dugger, 542 So. 2d 392 (Fla. 1st DCA court reversed. An employer/carrier is permitted to as- 1989), the claimant, a prison guard, ingested coffee sert a causation defense and doing so does not result in contaminated by an inmate with HIV infected blood. loss of workers’ compensation immunity. Importantly, The servicing agent advised the claimant that the according to the court, the employer/carrier did not incident was not covered by workers’ compensation: deny an employer/employee relationship or assert that “Ingestion of positive serum did not arise naturally the claim was not covered by workers’ compensation. or unavoidably as the result of his employment.” The In Coca-Cola Enterprises v. Montiel, 985 So.2d 19 claimant filed a tort suit which was defended based (Fla. 2nd DCA 2008), the claimant was injured while on workers’ compensation immunity. Summary judg- unloading boxes. The employer/carrier accepted the ment was entered for the employer. On appeal the claim as compensable and provided workers’ com- court reversed and remanded for a jury trial. The pensation benefits for 12 weeks. The employer/carrier court reasoned that the denial was vague and the jury then denied the claim based on major contributing should have been able to decide if estoppel applied. cause. The claimant filed a tort claim which was de- Then, in Francoeur v. Pipers, 560 So.2d 244 (Fla. 3rd fended on immunity. The employer sought summary

Workers’ Compensation Section 41 News & 440 Report • Attacks on Immunity Finally, in Catalfumo Constr., LLC v. Varella, 28 So.3d 963 (Fla. 3rd DCA 2010), the claimant was hurt while working for a subcontractor and filed for judgment which the trial court denied. On appeal, workers’ compensation against the subcontractor. the court reversed and held that the acceptance of The workers’ compensation claim was denied by the the workers’ compensation claim coupled with a later subcontractor who asserted that the “accident was not denial based on medical causation meant that the in the course and scope of employment.” The claimant employer was protected by immunity. sued the general contractor and the trial court ruled Schroeder v. Peoplease Corp., 18 So.3d 1165 (Fla. 1st that immunity was waived by the subcontractor’s DCA 2009) is the most important case addressing this denial. The appellate court reversed. A denial by the issue. In Schroeder, the claimant was told to unload subcontractor does not result in waiver of immunity a truck although he did not have the proper tools to for the general contractor. do so. The claimant then suffered a heart attack. The When the employer is estopped from raising im- employer/carrier entered a denial of the subsequent munity, Part II of the workers’ compensation policy workers’ compensation claim which read: covers the claim. Since the suit involves an injury to • Condition is not the result of injury arising out of an employee, the employer’s general liability policy and in the course of his employment will not cover the claim because such policies exclude • Condition due to natural causes unrelated to suits filed by injured employees. The suit instead in- employment volves an injury to an employee that is not covered by • Condition is not the result of an injury as defined Chapter 440. Thus, Part II of the workers’ compensa- by the Fla. WC act tion policy will cover the suit. • Condition is due to pre-existing disease As a result, in many cases the workers’ compensa- tion carrier will avoid paying workers’ compensation, • No causal connection between condition and only to end up paying tort damages for the same in- employment jury. In essence, the Employer’s Liability Insurance The claimant sued in tort and the claim was defend- provides “gap” insurance to the employer in situa- ed under immunity. The employer sought summary tions where the employee may maintain a tort action judgment and attached an affidavit of the adjuster to against the employer despite the exclusive remedy the motion. The adjuster claimed that she never in- provisions of the Workers’ Compensation Act. See, e.g., tended to deny the claim based on a lack of employee Travelers Indem. Co. v. PCR Inc., 889 So.2d 779 (Fla., relationship, or because the incident occurred outside the scope of the employment. She intended merely to 2004); See also, Ottumwa Housing Authority v. State dispute that the injury was compensable. The trial Farm, 495 N.W.2d 723 (Iowa, 1993) (quoting 7B John court granted the motion for summary judgment. On Alan Appleman, Appleman, Insurance Law & Practice appeal the court reversed because there was a fact is- Section, § 4571 at 2 (Walter F. Berdal Ed., 1979)). sue as to what was meant by the denial and the jury Employers and carriers need to be cognizant of the should decide the case. Immunity would not apply if proper way to deny claims so as to avoid tort action the reasons for the denial included: against the employer for an injury that should be dealt The alleged injury was not encompassed within the with inside the workers’ compensation system. Often, Act; or an employer/carrier will want to deny a claim “in its The alleged injury was not covered by the Act entirety” for reasons such as: Schroeder was followed almost immediately by • Major Contributing Cause; Coastal Masonry, Inc. v. Gutierrez, 30 So.3d 545 (Fla. • Misrepresentation; 3rd DCA 2010). The claimant alleged a back injury • Statute of limitations; while lifting concrete blocks. The claim was “denied • Notice; in its entirety” because the “present condition is not the result of an injury by accident arising out of and • Intoxication, horseplay, or deviation in the course and scope of employment.” The claimant It must be made clear that the incident, if compen- sued the employer in tort. The employer defended the sable, is covered by the workers’ compensation law suit by alleging both workers’ compensation immunity and a valid policy. For example, when the defense is and, incredibly, that the claimant was not an employee that the claimant simply made up the accident, the (an employer cannot be immune from suit if the plain- following denial language is problematic: tiff is not an employee). The employer was estopped “The claimant did not suffer an injury arising out of from raising immunity because of its inconsistent and in the course and scope of employment.” positions asserted in the workers’ compensation claim and in circuit court. Instead, preferred language would be as follows:

Workers’ Compensation Section 42 News & 440 Report • Attacks on Immunity action and not a claim for bodily injury. Part II coverage has also been applied in ‘substan- tially certain’ tort claims. For example, in Travelers “The claimant was engaged in the course and scope of Indemnity Co. v. PCR, Inc., 889 so.2d 779 (Fla. 2004), employment on the date of accident, but the employer/ an injured employee filed a tort claim alleging an ex- carrier asserts that the accident described by the ception to immunity because the injury was substan- claimant did not occur.” tially certain to occur. The employer sought coverage When the denial is based on 440.09(4), then the under Part II of the workers’ compensation policy. The following is problematic: carrier argued that the policy contained an exclusion “The claim is denied in its entirety.” for intentional torts. Moreover, the workers’ compensa- The following language is preferred: tion law refers to the ‘substantially certain’ injuries as ‘intentional torts.’ Thus, those injuries are excluded “The claimant suffered a compensable accident, but from coverage under the policy. the claimant made false and misleading statements The Florida Supreme Court held that the exclusion for the purpose of securing workers’ compensation benefits. All benefits are denied as a result.” applied only to injuries intentionally caused by the employer and that those injuries that are accidental When the defense is intoxication, the following (although substantially certain to occur) are covered permits a law suit: by Part II of the workers’ compensation policy. The “The claimant’s accident is not covered by workers’ Court implied, however, that suits brought under the compensation.” heightened ‘virtually certain’ standard effective Octo- The following does not: ber 1, 2003 might not be covered by Part II, thereby “The claimant was in the course and scope when he fell, leaving an employer with no coverage at all. See also, th but the accident was occasioned by his intoxication.” FCCI Ins. Co. v. Horne, 890 So.2d 1141 (Fla. 5 DCA 2004); Griffin Bros. Co., Inc. v. Mohammed, 918 So.2d When denying a claim based on an idiopathic injury 425 (Fla. 4th DCA 2006) (also holding that Part II of defense, the following allows the claimant to sue the the policy covers ‘substantially certain’ claims). employer in tort: “The injury did not arise out of the employment” Employer, carrier, third party The preferred denial would state: administrator, adjuster, case manager, “The claimant fell while in the course and scope and attorney liability for intentional of employment, but the MCC of the injury was a torts committed against the claimant condition personal to the claimant.” The benefits available under Chapter 440 are the There are a couple of related situations where Part exclusive remedy of a claimant who suffers an injury II of the workers’ compensation policy will not apply. within the course and scope of employment. Generally, For example, in TIG Insurance Co. v. Sweet Factory, the claimant may not sue based on actions taken dur- th Inc., 748 So.2d 337 (Fla. 5 DCA 2000), the plaintiff ing the claims administration process. Certain situa- was sexually harassed by a manager. The plaintiff tions, however, permit direct suit against the carrier, sued the employer and the employer sought a defense TPA, adjuster, defense attorney, or case manager. and indemnification from its workers’ compensation The seminal case is Aguilera v. In Services, Inc., carrier under Part II of the policy. The carrier argued that there was an unambiguous exclusion in the 905 So. 2d 84 (Fla. 2005). The facts, while horrific, policy. The trial court granted the employer’s motion were taken from the complaint because it was an ap- for summary judgment and the carrier appealed. The peal of a summary judgment adverse to the plaintiff. appellate court reversed and found the exclusion of Thus, there is no way to know if the facts alleged are harassment claims to be unambiguous and enforce- accurate. The allegations are that a fork lift struck the able. claimant and pushed him into a pallet. The workers’ In Humana v. Home Emergency Services, 842 compensation claim was accepted as compensable. So.2d 778 (Fla. 2003), the employer disposed of a The claimant then developed kidney and bladder pain broken ladder that allegedly caused the work related and he asked for a urologist. The request was denied. injury, resulting in a spoliation claim. The employer The claimant’s urine began to smell of feces. The car- demanded that the workers’ compensation carrier rier responded by terminating indemnity benefits. An defend and indemnify under Part II of the policy. The emergency room physician prescribed medications for carrier sought summary judgment which was granted. the urinary problem, but they were denied. On appeal the court affirmed. Part II covers claims for The claimant again asked for a urologist and the bodily injury and a spoliation claim is an independent request was denied although the carrier had evidence

Workers’ Compensation Section 43 News & 440 Report • Attacks on Immunity lowed and that the employer/carrier would be seeking reimbursement for previously paid bills. The attorney for the employer/carrier allegedly sent a letter to the that one was medically necessary. The authorized doc- doctor threatening him with penalties and sanctions tor prescribed urgent urology care which was again based on rules that the attorney knew had been re- denied. The authorized doctor prescribed urinary test- pealed. Dr. Lichtblau then refused to continue to see ing and medications which were denied. The doctor the claimant. The claimant then sued the carrier. The then scheduled diagnostic testing which was unilat- appellate court ruled that the complaint stated a cause erally cancelled by the carrier. The testing, however, of action against the workers’ compensation carrier. was done over the carrier’s objection and it confirmed In Ingraham v. Traveler’s Indemnity Co., 925 So.2d that the claimant had a fistula (hole) in his bladder. 377 (Fla. 3rd DCA 2006), the claimant filed a work- The claimant asked for emergency surgery to repair ers’ compensation claim for a ‘repetitive talking’ the fistula, but the request was again denied. injury which was denied. The claimant settled, while The employer/carrier then obtained an IME. The represented, for $5,000. The claimant then sued the case manager attended the evaluation after promising carrier pro se and alleged fraud and ‘meritless de- the claimant’s attorney that she would not do so. She fense’ of his denied workers’ compensation case. The advised the claimant to lie to his lawyer about her appellate court ruled for the carrier and found that presence at the evaluation. The case manager then the claimant’s allegations were not the ‘exceptional told the claimant to undergo painful invasive tests circumstances’ described in Aguilera that would allow not recommended by the claimant’s physician. When a separate tort claim. the claimant refused the employer/carrier raised the Marshall v. Amerisys, Inc., 943 So. 2d 276 (Fla. 3rd refusal as an additional basis to deny benefits. When DCA 2006) involved a claimant injured in a compen- the case manager and a nurse finally agreed that sable MVA. The claimant became frustrated with surgery was necessary they were over-ruled by the myriad managed care denials and complex grievance adjuster. The claimant urinated feces and blood for ten procedures. The claimant told the case manager that months before surgery was authorized. All six doctors he was very angry and he might become destructive. who saw the claimant agreed that the condition was When she asked what that meant, the claimant said, causally related to the work injury and that surgery “I know how to make bombs and silencers, how’s that was medically necessary. for destructive?” The case manager sent an email to The Supreme Court of Florida held that the claim- the adjuster stating that the claimant was “pissed off ant had a separate tort action against the case man- and is making bombs and silencers.” She later sent a ager, the adjuster, and their employers. ‘Minor delays’ second stating that the claimant was “building bombs.” or actions amounting to simple bad faith are protected The claimant sued, alleging defamation, libel, fraud, by immunity. A claimant cannot transform ‘simple and intentional infliction of emotional distress. The delay’ into a tort claim. Immunity protects negligent appellate court ruled that the claimant had no case. At conduct, but not all conduct. The facts presented al- best, the case manager’s actions were mere negligence leged an actionable intentional tort: intentional inflic- which is not actionable. tion of emotional distress (“IIED”). The elements of In Valdes v. GAB Robins, 924 So. 2d 862 (Fla. 3rd such a claim are: (1) deliberate or reckless infliction DCA 2006), the claimant was receiving PTD benefits of mental suffering; (2) outrageous conduct; (3) the and the employer/carrier assigned surveillance which conduct caused emotional distress; and (4) the distress showed that the claimant was physically active. is severe. Additionally, the conduct must be so outra- He was deposed, benefits were terminated, and the geous in character, and so extreme in degree, that it employer/carrier then referred the case to the Fraud is considered atrocious and utterly intolerable in a Division. The claimant was arrested, but the charges civilized community. See Metropolitan Life Ins. Co. v. were later dropped by the state. The claimant sued McCarson, 467 so.2d 277, 278 (Fla. 1985). the carrier, the TPA, and the adjuster for conspiracy, Aguilera was followed by Protegrity Services, Inc. false imprisonment, malicious prosecution, abuse of v. Vaccaro, 909 So.2d 448 (Fla. 4th DCA 2005). The process, outrageous conduct, loss of consortium, and claimant was seriously injured and came under the IIED. The appellate court ruled for the defendants. An care of a Dr. Lichtblau who then treated claimant for employer/carrier has the right to refer claimants to many years. Dr. Lichtblau also prescribed massage the Fraud Division in good faith. Moreover, employer/ therapy for an extended period of time. The employer/ carriers do not arrest or detain people. The state does. carrier did a utilization review and then advised Dr. If the claimant disagrees with a denial of workers’ Lichtblau that bills for the therapy would be disal- compensation benefits his sole remedy is with the JCC.

Workers’ Compensation Section 44 News & 440 Report • Attacks on Immunity the lawyer signed and deposited the check they would be committing fraud according to the plan. The conspirators hired an investigator to find Ms. Thristino v. Crawford & Co., 932 So. 2d 1162 (Fla. Rothstein who showed her a copy of the check and told 4th DCA 2006) involved a claimant who suffered mas- her she would be committing fraud if she cashed it. sive injuries to her head, spine, and face. She died The investigator arranged for Ms. Rothstein to meet fourteen years later. Her husband sued the carrier with the defense attorney. He allegedly had her sign an and case manager and alleged that the employer/ affidavit that she had not been providing care to the carrier intentionally harmed his wife by repeatedly claimant. He also allegedly gave Ms. Rothstein a ‘get denying and delaying care over the course of fourteen out of jail free’ letter allowing her to sign the check so years. The trial court dismissed the case. On appeal that the claimant and the claimant’s attorney could the court ruled that the complaint stated a cause of then be prosecuted for fraud. action for IIED and remanded the case for a jury trial. The $52,000 attendant care check was sent to the The allegation that a carrier purposefully harmed the claimant’s attorney. claimant will be sufficient to withstand a motion to The claimant’s attorney and the claimant met with dismiss. Ms. Rothstein who secretly recorded the conversation In Liberty Mutual v. Steadman, 968 So. 2d 592 (without the knowledge of the defense lawyer). (Fla. 2nd DCA 2007) the claimant had pre-existing The claimant’s attorney returned the check and cystic fibrosis and suffered an exposure injury to asked that it be re-issued to the claimant only. her lungs which resulted in the need for a bilateral The defense attorney allegedly reported the “fraud” lung transplant which the employer/carrier denied. to investigators and used the conversations illegally The JCC ordered the employer/carrier to authorize recorded by Ms. Rothstein. He also allegedly took the the transplant. The employer/carrier appealed and story to a local news station. lost. The employer/carrier then allegedly delayed the The prosecutor charged the claimant, but not the procedure for another nine months. The claimant claimant’s attorney, with workers’ compensation sued for IIED and alleged that the employer/carrier fraud. The case went to trial and the claimant was intentionally delayed the procedure in hope that the claimant would die before it was done. The appellate acquitted. court ruled that the claimant stated a valid cause of The claimant’s attorney then sued Ms. Rothstein, action and sent the case to the trial court for a jury the carrier, the defense lawyer, and the defense firm trial. under a variety of theories including invasion of pri- Horning-Keating v. Employers Insurance of Wausau, vacy and violations of the Security of Communications 969 So.2d 412 (Fla. 5th DCA 2007) presents alternate Act. theories of potential employer/carrier liability. In The trial court granted the defendants’ summary Horning-Keating, the claimant was awarded 24 hours judgment motions and the claimant’s attorney ap- a day of attendant care by the JCC, 12 hours to family pealed. The court reversed for a jury trial on whether members and 12 hours to non-family members. The the defendants’ actions violated the Security of Com- JCC characterized the employer/carrier’s actions in munications Act. There have been a total of four writ- defending the case as “reprehensible, insufficient, and ten appellate decisions regarding this case to date and shameful.” The employer/carrier appealed and lost. the case is still pending. The following facts were taken from the complaint as Recently, another theory has been used to establish the appeal was from a summary judgment. Thus, they employer/carrier liability outside the protections of are only allegations, and not necessarily fact: workers’ compensation immunity. In Brown v. Cas- At the time of the trial, a Ms. Rothstein was provid- sens Transport Co., 546 F.3d 347 (6th Cir. 2008), six ing the non-family member attendant care services, claimants filed a R.I.C.O. (Racketeer Influenced and but during the appeal Ms. Rothstein moved out and Corrupt Organizations Act) action against the em- stopped providing the care. ployer, servicing agent, and a physician, alleging that After the 1st DCA ruled on the appeal, the defense the three parties conspired, using fraudulent mail, attorney allegedly conspired with the carrier to entrap internet, and telephone communications, to deprive the claimant and the claimant’s attorney into commit- the claimants of their rightful benefits under the ting fraud. The plan was to issue the entire amount Michigan workers’ compensation act. The specific al- due for attendant care services to Ms. Rothstein, the legations were that the employer hired Crawford & Co. claimant, and the claimant’s attorney, even though the who then hired a Dr. Margules and other ‘unqualified’ employer/carrier knew that Ms. Rothstein had stopped physicians to provide knowingly false peer review re- providing care. When Ms. Rothstein, the claimant, and ports used to deny claims or benefits. On appeal to the

Workers’ Compensation Section 45 News & 440 Report • Attacks on Immunity the civil justice system is undoubtedly the diminution in workers’ compensation benefits reflected in legisla- tion passed between 1993 and 2009. As long as benefits 6th Circuit the suit was permitted (along with treble remain low, and as long the ability of injured workers damages and fees). to obtain competent counsel remains restricted, these Brown might not be applicable in Florida. The efforts will continue. Thus, the Florida Legislature, Michigan act has no provisions to punish employer/ through its passage of workers’ compensation reforms carriers for “fraudulently” denying claims or benefits. in 1993, 2003, and 2009, is ironically the most likely Thus, there was no reverse pre-emption under the the root cause of these attacks. McCarran-Ferguson Act. Reverse pre-emption pre- vents R.I.C.O. from being applied to state law where William H. Rogner was born in Charlotte, North Carolina on January 14, 1965. Mr. Rogner was a 1987 a state has enacted its own comprehensive criminal honors graduate of the Warrington School of Business or civil penalties for R.I.C.O. type violations. Florida Administration at the University of Florida. He went has section 440.105, Fla.Stat. which is specifically on to the University of Florida’s Levin College of Law intended to provide punishment for fraudulent acts where he graduated, again with honors, in 1990. While in the workers’ compensation system: at the University of Florida, Mr. Rogner was a member 440.105(4)(b) – unlawful for employer, carrier, adjuster of the Lambda Chi Alpha social fraternity, Florida Blue to make a false or misleading statement for the Key, and the Justice Campbell Thornal National Moot purpose of denying benefits Court Board. After graduation he practiced briefly with 440.105(4)(c) – unlawful for any physician to assist or another firm before founding Hurley & Rogner, P.A. in conspire with any other person to fraudulently deny 1992. The firm, now known as Hurley, Rogner, Miller, benefits Cox, Waranch & Westcott, P.A., has grown to include 440.105(4)(e) - unlawful for any attorney to assist or five offices and over 100 employees. Mr. Rogner became conspire with any other person to fraudulently deny a Florida Bar Board Certified Workers’ Compensa- benefits tion lawyer in 1996. Three years later he achieved his Florida Bar Board Certification as an Appellate Thus, Florida’s criminalization of fraudulent ac- Lawyer. Admitted to the Florida Bar, the Middle and tivities in the workers’ compensation system may Northern Federal District Courts, and the Eleventh be enough to establish reverse pre-emption under Circuit Court of Appeal, he continues to represent McCarran-Ferguson. However, the practice of using employers, carriers, and servicing agents in an active unqualified peer-review doctors in order to deny ben- trial practice. In addition, he has perfected well over efits potentially exposes carriers to tort liability. The 200 appeals before the District Courts of Appeal and theory of a successful lawsuit may not be R.I.C.O., but the Supreme Court of Florida. Mr. Rogner is AV rated it may eventually be something. by Martindale-Hubbell and is annually recognized There is little question that the immunity traditionally as a “Super Lawyer” by Law & Politics. He serves as enjoyed by employers, carriers, their agents, and their a member of the Florida Bar Workers’ Compensation employees is under attack and weakening. A central Section Executive Council. Mr. Rogner resides with his impetus for these continued efforts to seek redress in wife and two children in Orlando.

Ethics Questions? Call The Florida Bar’s ? ETHICS HOTLINE ? 1/800/235-8619

Workers’ Compensation Section 46 News & 440 Report Have an OCD Worker? By Dr. Michael Gilmore

While an orthopaedic surgeon may not be able to tologous grafting for primary lesions in patients not solve a worker’s obsessive compulsive tendencies, willing to accept the risks of donor site morbidity. osteochondral defect (OCD) does fall within an ortho- peadic surgeon’s specialty. An OCD is an area of dam- Preoperative Assessment aged cartilage found in a joint. The common sprain or Trauma is the most causative factor associated twist of a worker’s ankle often leads to osteochondral with OCDs, with an unstable ligamentous ankle joint defects of the talus (the anklebone). The cartilage being proposed as a cause of repetitive microtrauma lining of the talus can be bruised when a sprain of or major inversion trauma.3 On physical examination, the ankle occurs. As the talus twists inside its box- patients will have point tenderness over the side of like housing, the edge of the talus rubs up and hits the talar lesion and ankle swelling. Weight-bearing the end of the tibia. This causes a bruise and leads to radiographs of the ankle are taken to identify and softening of cartilage. It may lead to a small crack in classify the lesion better. the cartilage and a cyst forming in the talus bone. Other studies include computed tomography (CT) It is thought that most osteochondral defects of and magnetic resonance imaging (MRI), which help 1 the talus are traumatic in origin. The anterolateral to determine the precise location and extent of the lesions are certainly traumatic in origin, and more lesion. We prefer CT over MRI because it defines the than likely most posteromedial lesions are as well. architectural bony detail of the defect better. Often, The mechanism of injury is usually an inversion or large lesions have cystic changes and cancellous bone eversion injury coupled with possibly a dorsiflexion loss that are better defined by CT. or plantar flexion component. Patients present with Diagnostic arthroscopy is useful preoperatively to pain and limitation of motion in acute situations, and assess the extent of cartilaginous damage, but MRI en- also in more chronic situations when a single injury hanced with saline injection can be equally revealing. (or repetitive injuries) has gone unnoticed. In many instances, such interventions have confirmed Surgical treatment of osteochondral defects (OCDs) the cartilage status. of the talus encompasses a wide variety of procedures. The results of autologous osteochondral grafting have Surgical Considerations been successful for articular cartilage defects of the Symptomatic OCDs of the talus commonly re- talus; however, the risk of donor site morbidity from quire surgical intervention.4 Unfortunately, these the ipsilateral knee cannot be overlooked. The use of procedures replace the hyaline cartilage defect with fresh osteochondral allograft for cartilage defects in the fibrocartilage, a surface with inferior biomechanical talus represents an attractive alternative, particularly properties and durability. In addition, if the proce- for large lesions not amenable to autologous grafting. dures fail, few surgical options remain.5 Large OCDs of the talus that are 10 mm or larger also present a Indications significant challenge in a primary surgical setting. The main indication for allografting includes talar The successful use of autologous and allograft os- defects that are 10 mm or larger. The lesions are often teochondral transplant in the knee has promoted the missing articular cartilage or the remaining cartilage applicability of this technique to talar OCDs.6 Good to is soft and fibrillated.2 Surgery is offered when the excellent results have been reported in more than 80% pain is unresponsive to nonoperative treatment that of patients using both the mosaicplasty and OATS for includes medication, cast immobilization, bracing, and large OCDs of the talus.7 The source of donor tissue in physiotherapy. all these reports for talar defects, however, has been Sometimes patients have failed other forms of autologous osteochondral grafts from the nonarticulat- surgical treatment, such as open or arthroscopic dé- ing portions of the ipsilateral femoral condyle. In spite bridement, drilling, or the mosaicplasty osteochondral of the low reported incidence of knee pain following autograft transfer system (OATS). Fresh allografts this procedure, the risk of significant morbidity still are finding an increasing role in the salvage of diffi- exists.8 cult cases that have failed other cartilage procedures. The issue of harvesting graft from an asymptomatic Allografts can also be offered as an alternative to au- joint has led us to develop a technique for treating

Workers’ Compensation Section 47 News & 440 Report the talus. 1986;14:211-217. Stone JW: Osteochondral lesions of the • OCD Worker talar dome. 1996;4:63-73. 2 Berndt AH: Transchondral Fractures (Osteochondritis Disse- cans) of the Talus. J Bone Joint Surg Am 1959;41A:988-1018. large OCDs of the talus using fresh osteochondral al- 3 Hakimzadeh A, Munzinger U: [8. Osteochondrosis dissecans: lografts from talar cadavera. Similarly, fresh allografts results after 10 or more years. c). Osteochondrosis dissecans of the have enjoyed greater than 75% clinical success in the ankle joint: long-term study]. Orthopade 1979;8(2):135-140. knee for the treatment of large isolated OCDs of the 4 Kelberine F, Frank A: Arthroscopic treatment of osteochondral femoral condyle or tibial plateau.9 The allografting lesions of the talar dome: a retrospective study of 48 cases. Ar- throscopy 1999;15(1):77-84. Lahm A, Erggelet C, Steinwachs M, procedure takes advantage of the unique character- Reichelt A: Arthroscopic management of osteochondral lesions of istics of osseous and chondral tissue components. The the talus: results of drilling and usefulness of magnetic resonance host readily incorporates the transplanted bone while imaging before and after treatment. Arthroscopy 2000;16(3):299- 304. Taranow WS, Bisignani GA, Towers JD, Conti SF: Retrograde the articular cartilage survives transplantation. drilling of osteochondral lesions of the medial talar dome. Foot Ankle Int 1999;20(8):474-480. Rehabilitation 5 Tol JL, Struijs PA, Bossuyt PM, Verhagen RA, van Dijk CN: Treatment strategies in osteochondral defects of the talar dome: a Patients are restricted from weight bearing for a systematic review. Foot Ankle Int 2000;21(2):119-126. period of 12 weeks, but range-of-motion exercises are 6 Yamashita F, Sakakida K, Suzu F, Takai S: The transplantation started at about 3 weeks, once the incision is healed. of an autogeneic osteochondral fragment for osteochondritis disse- Motion exercises are delayed for 6 weeks if the patient cans of the knee. Clin Orthop 1985;201:43-50. Convery FR, Meyers has a tendoachilles lengthening. Patients undergoing MH, Akeson WH: Fresh osteochondral allografting of the femoral condyle. Clin Orthop 1991;273:139-145. Berlet GC, Mascia A, Min- hemitalus replacement are non-weight-bearing for 3 iaci A: Treatment of unstable osteochondritis dissecans lesions of months before beginning protected weight bearing in the knee using autogenous osteochondral grafts (mosaicplasty). a cam boot for 1 month. Those undergoing treatment Arthroscopy 1999;15(3):312-316. Marcacci M, Kon E, Zaffagnini S, Visani A: Use of autologous grafts for reconstruction of osteochon- for a small lesion are restricted from weight bearing dral defects of the knee. Orthopedics 1999;22(6):595-600. for 6 weeks before beginning weight bearing in a cam 7 Al-Shaikh RA, Chou LB, Mann JA, Dreeben SM, Prieskorn boot for 1 month. Full activity is allowed by 6 months. D: Autologous osteochondral grafting for talar cartilage defects. Foot Ankle Int 2002;23(5):381-389. Hangody L, Kish G, Karpati Z, Szerb I, Eberhardt R: Treatment of osteochondritis dissecans of Dr. Michael Gilmore received his Bachelor’s degree the talus: use of the mosaicplasty technique--a preliminary report. while playing as the All-American Free Safety and Foot Ankle Int 1997;18(10):628-634. Hangody L, Kish G, Modis L, Defensive Captain of the 93 and 94 SEC Cham- et al: Mosaicplasty for the treatment of osteochondritis dissecans pion Florida Gators. He was one of the nation’s most of the talus: two to seven year results in 36 patients. Foot Ankle Int 2001;22(7):552-558. Gautier E, Kolker D, Jakob RP: Treatment of honored scholar-athletes during the 1993-1994 and cartilage defects of the talus by autologous osteochondral grafts. J remains one of the top scholar-athletes in University Bone Joint Surg Br 2002;84(2):237-244. Sammarco GJ, Makwana of Florida’s football history. After graduating Magna NK: Treatment of talar osteochondral lesions using local osteochon- dral graft. Foot Ankle Int 2002;23(8):693-698. Cum Laude, Dr. Gilmore was accepted into the medical 8 Al-Shaikh RA, Chou LB, Mann JA, Dreeben SM, Prieskorn program at the University of Florida School of Medi- D: Autologous osteochondral grafting for talar cartilage defects. cine. He completed his internship and residency at the Foot Ankle Int 2002;23(5):381-389. Hangody L, Kish G, Karpati prestigious University of Florida Orthopedic Institute Z, Szerb I, Eberhardt R: Treatment of osteochondritis dissecans of the talus: use of the mosaicplasty technique--a preliminary report. where he became chief resident. During his residency, Foot Ankle Int 1997;18(10):628-634. Hangody L, Kish G, Modis L, he combined his passion for sports and medicine as one et al: Mosaicplasty for the treatment of osteochondritis dissecans of the researchers for the air-cooled Temperature Man- of the talus: two to seven year results in 36 patients. Foot Ankle Int agement System (TMS) shoulder pads used by high 2001;22(7):552-558. 9. Convery FR, Meyers MH, Akeson WH: Fresh osteochondral al- school, college, and pro football teams across America. lografting of the femoral condyle. Clin Orthop 1991;273:139-145. Dr. Gilmore is a Board Certified Fellow of the American Shasha N, Krywulak S, Backstein D, Pressman A, Gross AE: Long- Academy of Orthopaedic Surgeons. Specializing in term follow-up of fresh tibial osteochondral allografts for failed tibial minimally invasive surgery with the latest arthroscopic plateau fractures. J Bone Joint Surg Am 2003;85-A(Suppl 2):33-39. Bugbee WD, Convery FR: Osteochondral allograft transplantation. techniques, Dr. Gilmore treats patients of all ages from Clin Sports Med 1999;18(1):67-75. Beaver RJ, Mahomed M, Back- pediatric to adults. He has an unwavering commitment stein D, Davis A, Zukor DJ, Gross AE: Fresh osteochondral allografts to providing quality care to the residents of Florida’s for post-traumatic defects in the knee. A survivorship analysis. J Bone Joint Surg Br 1992;74(1):105-110. Meyers MH: Resurfacing panhandle and looks forward to many more years to of the femoral head with fresh osteochondral allografts. Long-term come. To learn more about his practice you may visit results. Clin Orthop 1985;197:111-114. Meyers MH, Akeson W, his website at www.panhandleortho.com. Convery FR: Resurfacing of the knee with fresh osteochondral al- lograft. J Bone Joint Surg Am 1989;71(5):704-713. Aubin PP, Cheah HK, Davis AM, Gross AE: Long-term followup of fresh femoral os- Endnotes: teochondral allografts for posttraumatic knee defects. Clin Orthop 1 Parisien JS: Arthroscopic treatment of osteochondral lesions of 2001 Oct;(391 Suppl):S318-27

Workers’ Compensation Section 48 News & 440 Report The Simplicity (or lack thereof) of Changing Physicians By Michael S. Waranch, Esq., Winter Park, FL

In the current law, the claimant’s right to request a ant first began treatment with a general surgeon. He change in physicians is found in §440.13. Specifically, subsequently requested a change of physicians, and an §440.13(2)(f) states: orthopedic physician was authorized. When the claim- “upon the written request of the employee, the carrier ant became dissatisfied with the orthopedic surgeon, shall give the employee the opportunity for one change he requested a change of physicians. The JCC ordered of physicians during the course of treatment for the employer/carrier to authorize a second change in any one accident. Upon the granting of a change of light of the fact that the initial change was from a physician, the originally authorized physician in general surgeon to an orthopedic physician. the same specialty as the changed physician shall The First District Court of Appeals found that become de-authorized upon written notification by because a change in physicians already had been au- the employer or carrier. The carrier shall authorize an thorized, the JCC erred in allowing the second change. alternative physician who shall not be professionally This is an interesting ruling when one considers that, affiliated with the previous physician within five pursuant to the Statute, the originally authorized phy- days after receipt of the request. If the carrier fails sician “in the same specialty as the changed physician” to provide a change of physicians as requested by the employee, the employee may select the physician shall become de-authorized. Therefore, in Werner, and such physician shall be considered authorized it would appear that the initial authorized general if the treatment being provided is compensable and surgeon could not have been de-authorized in light of medically necessary.” Fla.Stat (2008). the fact that it was an orthopedic physician who was subsequently authorized and not another general sur- The law, allowing the claimant to exercise the right geon. In any event, Werner established that a claim- for a one-time change in physicians, was enacted in ant is only entitled 2001. The original provision required the employer/ carrier to offer “no fewer than three carrier-authorized to one change of phy- . . . Werner established that a physicians who are not professionally affiliated” in sicians per accident response to a written request for one change in physi- and not per specialty. claimant is only entitled to cians.1 The 2003 version of the statutory provision does The Court also one change of physicians per not require the employer/carrier to provide a list of not has addressed what fewer than three carrier-authorized physicians who are qualifies as “treat- accident and not per specialty. not professionally affiliated. This change is procedural ment” in order to and not substantive, and therefore, it applies to any trigger the claim- and all requests for a change in physicians, pursuant ant’s right to a change in physicians. In Florida to §440.13(2)(f), regardless of the date of accident.2 Transport 1982, Inc. v Quintana, 1 So.3d 388 (Fla. 1st From a practical standpoint, employer/carriers en- DCA 2009), the employer/carrier authorized a psy- countered difficulty in some cases providing a list of chiatrist for the claimant, but before the claimant ever three physicians, none of whom were professionally af- treated with that psychiatrist, he requested a change filiated. This was especially true in smaller-populated in psychiatrists. The Court found that the employer/ areas throughout the state. Thus, the 2003 change, carrier had no responsibility for authorizing a change on the issue, was a welcomed revision for employer/ in psychiatrists until the claimant at least was evalu- carriers. ated by the initial authorized psychiatrist. Since the 2003 change, the Court has addressed In addition, the Court has resolved whether a various challenges to this statutory section. While the claimant is entitled to a change in physicians when current provision appears clear and straight-forward, there is evidence that the accident is no longer the various appellate challenges have proved the provision major contributing cause of the claimant’s need for is open to interpretation. treatment. The Court has stressed that the change For instance, in Tri City Electric v Werner, 5 So.3d is mandatory based on the language requiring that 752 (Fla. 1st DCA 2009), the JCC allowed the claimant “the carrier shall give the employee the opportunity a second change in physicians. Specifically, the claim- for one change.” The Court concluded that because the

Workers’ Compensation Section 49 News & 440 Report • Changing Physicians Conclusion §440.13(2)(f) provides the claimant with a right to claimant had been treated by an authorized physician, one change in physicians per accident. A claimant’s despite a subsequent opinion that the accident was right, to a change in physicians, first arose with the no longer the major contributing cause, the claimant 2001 law. Initially, the employer/carrier was required remained entitled to a change in physicians. 3 to provide a list of at least three physicians, who were As stated above, when the carrier fails to provide not professionally affiliated, in response to a writ- a change as requested by the claimant, the statutory ten request for a change in physicians. In 2003, the provision allows the claimant to select their own requirement that a list of at least three physicians physician, and that physician shall be considered be provided was removed, and currently, employer/ authorized so long as the treatment being provided is carriers only are required to authorize one physician compensable and medically necessary. However, this in response to a request for a change. is not an absolute If the employer/carrier does not authorize a new . . . when the carrier fails to right. For instance, physician within five days of when the request is made when a claimant for the change, the claimant has the right to select provide a change as requested does not select their their own physician. However, if the claimant does by the claimant, the statutory own physician, after not exercise that right before the employer/carrier an employer/car- authorizes a physician or the claimant accepts the new provision allows the claimant rier fails to respond physician ultimately authorized as the change, then within five days of to select their own physician, the claimant waives the right to select the physician. the written request Case law has clarified any ambiguities of §440.13(2) and that physician shall be for a change, and (f). The rights and obligations, concerning requests for considered authorized so the claimant then accepts the physi- a change in physicians, now appear well-settled. long as the treatment being cian subsequently Michael S. Waranch was born in Norfolk, Virginia. provided is compensable and authorized by the employer/carrier, the He is a 1988 graduate of the University of Maryland and a 1991 graduate of the Georgetown University medically necessary. claimant waives any Law Center. Mr. Waranch is a partner with Hurley, entitlement to select Rogner, Miller, Cox, Waranch and Westcott in the Win- their own physician.4 ter Park, Fl office, where he exclusively defends clients Furthermore, the employer/carrier must authorize in workers’ compensation matters. Mr. Waranch is a specific physician in response to a claimant’s request Board-Certified in Workers’ Compensation Law and is for a change. In Harrell v Citrus County School Board, a member of The Florida Bar, the Orange County Bar, st 25 So.3d 675 (Fla. 1 DCA 2010), the carrier only re- and is a member of the United States Supreme Court. sponded, to a request for a change in physicians, by indicating that they “agreed to authorize a one-time Endnotes: change.” However, a specific alternative physician 1 §440.13(2)(f), Fla.Stat (2001) was not authorized within five days of the claimant’s 2 Butler v Bay Center/Chubb Ins. Co., 947 So.2d 570 Fla.1st DCA request. Accordingly, the claimant was permitted to se- 2006) lect their own physician. The Court found that simply 3 Providence Property & Casualty v Wilson, 900 So.2d 1224 (Fla. agreeing to authorize the requested change in not an 1st DCA 2008) adequate response. The Carrier must name the new 4 Pruitt v Southeast Personnel Leasing, Inc., 33 So.3d 112 (Fla. physician. 1st DCA 2010)

Moving? The Florida Bar’s website (www.flORIDabar.org) offers members the ability to update their address and/or other member information. The online form can be found on the web site under “Member Profile.”

Workers’ Compensation Section 50 News & 440 Report Reminders for the Effective Advocate By David Langham, Esq., Deputy Chief Judge of Compensation Claims

Tell the truth reason). We will all fall down. The great UCLA coach Do you value anything more than your reputation? John Wooden once said “be more concerned with your It seems antithetical that we conduct education semi- character than your reputation, because your char- nars on ethics and honesty. The Rules of Professional acter is what you really are, while your reputation is Conduct require nothing short of the truth. When you merely what others think you are." Words by which file a pleading, you are making representations. The to live. So many people have said it so many ways, Rules require truthfulness in the material facts and but ultimately the point is not how many times you the law; in representations to a “third person,” Rule fall down, but how many times you get back up. 4-4.1 and in representations to “a tribunal,” Rule 4-3.3. Our attainment of professionalism is dependent Lawyers must zealously represent the needs and upon zealous advocacy, but with conscientious adher- rights of their client. Above all, however, we must all ence to telling the truth. Others will measure us each respect the simple maxim of telling the truth. by whether we speak the truth, and how we correct Is it not proper, appropriate, or excusable to tell a inadvertent mistakes or misstatements when we or lie because you believe it is told “for a good reason.” others discover them. As a profession, we cannot condone material misrep- resentations, nor attorneys that are more upset with Seek Advice from Your Peers being caught in a lie than with the misrepresentation The OJCC cannot provide advice and fulfill its obli- itself. While I don’t suggest that you beat yourself up gation to impartiality. Lawyers are advocates for a par- in these instances, attorneys must own-up, correct ticular outcome. Each lawyer seeks a specific outcome. such errors, clear the air and move on. In the day- The judge’s role is the impartial adjudication of that to-day, we are all faced with choices. We all know the dispute. Too often, lawyers seek practice advice from rules. At the “end of the day,” we all know right from the judge or the judge’s staff. When presented with wrong. some situation, or following denial of a motion, lawyers However, we will also all make honest mistakes. will sometimes ask JCC staff or mediators “then what What is your reaction when you realize that has oc- am I supposed to do?” Lawyers call JCC staff and ask curred? Innocent misrepresentations and misstate- questions like “if I file a motion for ______will the ments, “mistakes,” will be made. Remembering this is judge grant it?” Lawyers have asked state mediators at least as important as knowing we are obligated to how they should plead and plan to “set-up” an appeal. tell the truth. The true test of character is our willing- This is inappropriate. The OJCC’s role is not to advise ness to simply state “I made an error, that statement an attorney what they are “supposed to do.” Likewise, was not true (or not entirely true perhaps?).” I urge no OJCC staff or mediator can tell an attorney how you to consider the power such an admission/correc- to proceed or how a judge will or even might rule on tion has, in mediation, in litigation, and in life. Others a particular motion, as yet not filed or considered. will see that admission and willingness to correct the The unknown can cause or exacerbate stress. misstatement as evidence of your strength of charac- Seeking such advice is a plea for certainty, or at least ter. Admission and correction is far more productive predictability, and the attendant benefit of decreased than excuses (my secretary did it), and arguments stress. We all can understand why any lawyer would of materiality (it wasn’t on a really important point) be comforted to know the outcome or probable outcome and denial (the misstatement was made for a good of some future effort or motion. Conversely, however,

Workers’ Compensation Section 51 News & 440 Report • Effective Advocate such a hearing. Rule 60Q6.115(4). Too many callers to our offices, primarily attorney’s staff, are unfamiliar with this Rule. Calling to schedule a hearing before the same lawyer’s stress would be increased by feeling the Judge has determined one is required takes staff such advice had been rendered to the opposing side of away from the tasks at hand. Of course, there will be their case, without their knowledge. OJCC staff and urgencies, emergencies and unique situations. State Mediators are not here to advise on the law, or their that in the motion in those instances. A call, in those thoughts as to the probability of your success with an instances, to reinforce the urgency of the situation argument or an appeal. The OJCC is not here to assist with the Judge’s staff is appropriate. anyone attorney(s) with finding or framing that “test The new rules regarding motions should be re- case” that they may be seeking. Although such advice viewed by practitioners. The new rule requires that was surely rendered by Florida OJCC staff in the past, within fifteen days of service of the written motion, the OJCC of the twenty-first century will not engage the opposing party should file a response in opposi- in this. Please do not request such advice from OJCC tion. Failure to do this may result in the motion being staff. Our job is to provide impartial adjudication of decided without a response being filed. Written mo- cases before us, please both demand and respect that tions will normally be disposed of after the response impartiality. is filed or after the response period has expired, There are so many workers’ compensation practitio- based on the motion, together with any supporting or ners with exceptional and sometimes very specialized opposing memoranda. The judge shall not hold hear- skills and knowledge. Some have grey hair and some ings on motions except in exceptional circumstances do not, but finding them is not so difficult. As a group, and for good cause shown in the motion or response. the leadership and past leadership of the Section, Thus, in those cases where the practitioner feels a the Florida Workers’ Advocates, the Florida Workers’ live hearing is necessary, he or she should be sure to Compensation Institute, and others, have so many request that and be sure to include in his or her mo- interests and experiences. When you face the “what tion the “exceptional circumstances and good cause” should I do now” question, contact the leadership of for a hearing. these groups. They both can and will provide guid- If you resolve an issue after the motion is filed, file a ance to the extent possible. Where do you find these “withdrawal” or a “Notice of Resolution of the ______’s people? Two excellent upcoming opportunities are two Motion for ______.” A simple, two-line, pleading that programs offered by the Section. The Forum is on alerts us that there is no longer a need for an order. April 11 and 12, 2011 at ChampionsGate in Orlando. Done and Done! Quick, simple, cheap (e-filing is free), The Section’s Trial Advocacy Workshop in Miami and effective. This will assist us in timely addressing provides intense trial training overseen by the Deans your disputes which require it, and help us avoid time of Florida workers’ compensation. If you are looking spent on issues that have resolved. for experts in the field, you will find them at these op- portunities. Save the Trees We do not need your cover letters. In fact, the Rules, Relief Follows Motions and Know the 6.103(1)(f), say not to send “separate correspondence.” New Motion Procedures If you file a Motion for Continuance, that document will have that title on it. 60Q6.115(1). Our staff can The OJCC Rules of Procedure are clear on seek- see from that document what is being sought, and can ing relief. You “shall” file a motion. Rule 60Q6.115(1). efficiently process it. Please consider this, and counsel Why? Motions must be discussed with opposition as your staff. A cover letter that says “Judge, enclosed the rule requires that the “the movant shall personally please find my client’s Motion for Continuance” is confer with the opposing party or parties.” The OJCC redundant. These letters do not assist in our process, interprets this rule as requiring more than just a fax and they unnecessarily use space in our uploading or email and that an actual discussion take place. The bandwidth and our database. Please file just the plead- well pled motions must represent that there has been ing. discussion and motions must be served on opposing parties. Opposing parties get opportunities to respond to motions. If you seek relief from a Judge of Compen- Plan for Success sation Claims, file a motion. The Florida Legislature has deemed it appropriate After filing the Motion (and please, just one copy not to set deadlines for the trial and adjudication of peti- one by e-JCC, another by fax and another by mail, Rule tions. Fla. Stat. §440.25. When a petition is filed, the 60Q6.108(1)), please do not call the Judge’s office that parties know that multiple outcomes are possible: the day (or week) to schedule a hearing. The Motion pro- PFB issues may resolve or be dismissed, the case may cess in the OJCC Rules affords hearings only after the settle, the issues may proceed to trial. Of these poten- Judge has had an opportunity to determine whether tialities, proceeding to trial likely requires the most the motion is appropriate for adjudication without preparation and work. Trial is the outcome in which

Workers’ Compensation Section 52 News & 440 Report • Effective Advocate mediation, the time to schedule the IME to occur after mediation is nonetheless when the petition is filed/ received. The prepared lawyer constructs a litigation the evidence will be most severely tested. Knowing that schedule in this way initially, then cancels events as the statute sets deadlines for trial of petition issues, they become less needed or less relevant due to case lawyers must expeditiously plan for trial when a peti- or issue development(s). Thus, the attorney is ready tion is filed/received. Lawyers may differ on the best for trial if and when the time comes. The effective timing of the treating physician’s deposition, some may lawyer prepares for the worst and hopes for the best. strategize that an early deposition is most effective, It may be too late to depose that neurosurgeon if you others may prefer to wait until after mediation. wait until after mediation to schedule the deposition However the timing for scheduling that deposition appointment. Ask yourself if this is “beyond” your is clear. Though the lawyer may not wish to expend the control, and you will be prepared when the Judge asks. time or funds to depose the treating physician until These should assist you with successful practice. shortly before trial, the time to schedule that deposi- Be truthful and demand it of others. Seek advice from tion to occur shortly before trial is when the petition practitioners that have “been there, done that.” Follow is filed/received, or as soon thereafter as the need for the Rules and file motions, not letters. Save the trees that evidence becomes apparent. The same analysis when you can. Finally, hope for the best, but prepare applies to scheduling an IME. Although a party may for the worst. These will enhance your experience with not wish to expend the funds for an IME until after the the OJCC.

if a legal hassle or area of law has Ease your legal confusion. you confused or full of questions... www.floridabar.org/SCOPE SCOPE points you in the right direction. SCOPE offers the less experienced attorney access to the knowledge ... To better serve the Bar and the public and resources of a more experienced attorney— fast, free and over the phone.

SEEK COUNSEL OF PROFESSIONAL EXPERIENCE

Call 1-800-342-8060, ext. 5807

A program of the Young Lawyers Division of The Florida Bar

SCOPE applications can be found at www.floridabar.org/SCOPE

Workers’ Compensation Section 53 News & 440 Report FRIENDS OF 440 SCHOLARSHIP FUND, INC.

STATEMENT OF PURPOSE, GUIDELINES & APPLICATION

To aid dependents or descendants of workers who are injured in the course and scope of their employment and receive benefits under the Florida Workers' Compensation Law and who reside or whose accident occurred in the State of Florida. Applicants must not be related directly or indirectly to any member of the Board of Directors. Furthermore, dependents or descendants of individuals who primarily engage in the operation and/or administration of the Florida Workers' Compensation Law are eligible to receive the scholarship on a statewide basis. This scholarship is intended to aid students who lack the economic ability to continue education beyond high school or to further their college education. Applications must be submitted prior to February 28th, of the year the scholarship is to be awarded.

REQUIREMENTS:

COMPLETED APPLICATIONS MUST BE MAILED TO THE FRIENDS OF 440 SCHOLARSHIP FUND INC., 9350 SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI, FLORIDA 33156-2900 TELEPHONE NUMBER: (305) 671-1300

High school applicants must have a 2.70 GPA; college applicants must have a 3.0 GPA to apply; all applicants must maintain a 3.0 GPA for all renewals – The scholarship is not available for students attending graduate school.

NOTICE OF NON DISCRIMINATORY POLICY TO STUDENTS The Friends of 440 Scholarship Fund, Inc., does not discriminate on the basis of race, color, national or ethnic origin.

Please submit the following documents with this application (photocopies only):

1. Mandatory – Copy of most recent tax return of parent and/or guardian 2. Mandatory – Copy of applicant’s most recent school transcript 3. If applicable - Copy of applicant’s most recent tax return

Applications will NOT be processed if ANY of the above documents are missing

Complete scholarship applications are available as a pdf at http://www.440scholarship.org/the-scholarship/application.

Workers’ Compensation Section 54 News & 440 Report Case Law Update by Rogers Turner, Esq., Winter Park, FL

opinions are based on experiences, and emphatically Compensability/Major affirmed the JCC’s order. This opinion quite clearly Contributing Cause expresses the position of the DCA that workers’ com- pensation misrepresentation should not be asserted Firefighter Presumption/Qualifying Conditions based upon differences in opinion or perception, but City of Venice/PGCS v. Van Dyke,___So.3d___(Fla.1st upon clear misrepresentations of facts, with the intent DCA 10/8/2010) to secure workers’ compensation benefits. The court declined to specifically hold whether differences in The DCA affirmed the ruling of the JCC, reject- opinion could ever qualify as a reason for termination ing the E/C argument that the employee’s aortic of benefits under F.S. 440.09(4). disease could not be considered compensable under F.S.§112.18(1)(2007), because the condition is not PTD benefits/Attainment of Overall MMI “heart disease.” The DCA noted that although the aorta is not “in the heart,” it is one of the structures of Hernandez v. Geo Group/Specialty Risk,___So.3d___ st the heart. Additionally, the claimant’s medical treat- (Fla.1 DCA 10/29/2010) ment included implantation of an aortic valve. The The DCA affirmed the JCC’s denial of PTD for peri- E/C also appealed the JCC’s finding that a claim for ods prior to MMI. The DCA also modified the underly- compensability of hypertension was dismissed “with- ing order, striking those portions which ruled on the out prejudice.” As that claim was not before the JCC, potential entitlement to PTD at a period post MMI, the DCA struck that portion of the Order. as opinions on the claimant’s ultimate permanent restrictions were premature. Additionally, they struck Misrepresentation/Specific Intent portions of the order which held the claimant failed to Steel Dynamics/SRS v. Markham,___So.3d___(Fla.1st present vocational testimony as to employability post DCA 10/25/2010) MMI, as such opinions could not have been obtained given the lack of evidence of restrictions post MMI. In a lengthy 11 page Opinion, the DCA affirmed via The DCA also struck portions of the order relying on summary affirmance (ie. The court did not require the the opinions of a neuropsychologist who was not a appellee to file an answer brief) that the JCC was cor- licensed medical doctor. rect in finding the claimant did not make misrepresen- tation for the purposes of obtaining benefits. The facts Firefighter Presumption/Conditions of contin- were numerous, but indicated the claimant worked a ued provision of benefits physical job, had a compensable event, resigned in a letter to employer (without mentioning his injury), City of Pembroke Pines/Gallagher Bassett v. Orta- st was hired by another employer whom he told about gus,___So.3d___(Fla.1 DCA 11/2/2010) his injury, and ultimately resigned. The DCA looked The DCA affirmed the JCC’s Order awarding ben- scornfully upon the E/C’s position that the claimant efits. After a brief period of disability, the claimant made misrepresentations to his employer a year and returned to regular duty. The E/C continued to pro- a half before he sustained a disability. They further vide medications to control hypertension. After three wrote extensively as to the difference between opinion years, the E/C ceased providing benefits, alleging the testimony (here the claimant testified his subsequent claimant no longer suffered a disability. The court employment was not “physical”) and testimony repre- found no basis for this argument, noting that once senting or misrepresenting facts. The DCA noted that the claimant established a compensable injury under

Workers’ Compensation Section 55 News & 440 Report • Case Law Update unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with the presumption statute, the carrier had to continue vocational factors. The DCA noted the JCC appeared to provide benefits to control the condition. The court to apply the incorrect legal standard in denying ben- noted that generally carriers may contest the MCC efits based on a failure to look for work. In a footnote, of subsequent procedures or conditions, but nothing they indicated the record showed that although the in the statute limits receipt of medical benefits to a E/C’s vocational expert identified open jobs at trial, period of continuing or ongoing disability. no offers of employment had been made to the claim- ant nor had she refused any employment. The case Statute of Limitations/Prosthetic Devices/Em- was remanded for the JCC to determine whether the ployer Knowledge claimant is entitled to PTD benefits based on evidence Coburn v. Polk County Brd. Of Cmmsrs./Commercial of permanent work-related physical restrictions that, st Risk,___So.3d___(Fla.1 DCA 12/21/2010) while not alone totally disabling, preclude Claimant The DCA reversed the JCC’s finding that the claim from engaging in at least sedentary employment when was barred under the one year SOL. The claimant combined with vocational factors. continued to wear hearing aids prescribed under a 1999 claim. When he attempted to make an ap- Permanent Total Disability/Evidence under the pointment with the authorized treating doctor, the Pre 2003 SS Standard carrier denied further benefits, as over a year had Paz v. A.Duda and Sons/CNA, ___So.3d___(Fla.1st passed since the date of last medical treatment. The DCA 10/13/2010) DCA analyzed the decision, noting that the hearing aids were clearly prosthetic devices. They also noted The DCA reversed the JCC’s denial of PTD benefits that the issue turned on whether the employer had under the 2002 version of the statute, which utilizes implied or actual knowledge of the claimant’s con- the five step sequential social security analysis. The tinued use of the hearing aids. The Court’s recent JCC erred in finding the claimant was not perform- decision in Gore v. Lee County (issued after the JCC’s ing substantial gainful employment due to reasons Order) articulated that claims may be tolled via such unrelated to his accident. The DCA noted that causa- employer knowledge. They noted that the JCC’s or- tion is not an element at that step, but a simple yes der did not contain an ultimate finding of fact as to or no question. The DCA reversed the JCC’s finding this issue, and remanded for the JCC to determine under step four of whether the claimant is capable whether actual or implied knowledge existed on the of performing past relevant work, as they noted the part of the E/C. ruling was based on a hypothetical that did take into account subsequent medical restrictions. The DCA indicated the JCC had to specifically reject that medi- Indemnity Benefits cal opinion in order to make that finding. Similarly, the DCA held that the JCC erred in accepting the PTD/Burden of Proof E/C’s affirmative defense that the claimant retained Blake v. Merck and Co./Specialty Risk Services,___ a substantial earning capacity. They again noted this So.3d___(Fla.1st DCA 9/7/2010) finding failed to take into account the subsequent opinions of the treating doctor regarding increased The DCA reversed and remanded the JCC’s Order restrictions. denying PTD benefits. The JCC’s Order included the following language: “I interpret this (the “50 mile ra- TPD/Effect of Prior Stip on 104 week cap dius PTD standard”) to mean that, regardless of all Roto-Rooter/Specialty Risk Svcs v. Sepulveda,___ vocational expert opinions, the burden rests on the st shoulders of the injured employee to at least make a So.3d___(Fla. 1 DCA 10/18/2010) reasonable effort to secure employment if the evidence The DCA reversed and remanded an order of the does not show her to be totally medically disabled. That JCC awarding TPD benefits “not to exceed 104 weeks.” the claimant here failed/refused to do a job search or The court affirmed the period of time in which benefits to check any jobs made available to her negates an were awarded, but remanded for the JCC to interpret award of permanent total disability.” The DCA held the impact of a prior joint stipulation resolving a this was error, citing to post 2003 case law holding past period of TPD for $7,750. The E/C asserted as that a claimant not having a listed injury may prove a defense the payment of 104 weeks of benefits. The entitlement to PTD by (1) permanent medical inca- JCC determined the E/C paid 66 weeks of benefits, pacity to engage in at least sedentary employment, but indicated the JCC was to determine if the 66 within a 50-mile radius of the employee’s residence, weeks of benefits had been paid pursuant to that prior due to physical limitation; (2) permanent work-related stipulation. The Stipulation apparently did not clearly physical restrictions coupled with an exhaustive but indicate that fact.

Workers’ Compensation Section 56 News & 440 Report • Case Law Update interest. After the claimant filed a PFB seeking PTD, PTD supps and penalties and interest from March 23, 2009, the E/C agreed to pay PTD and PTD supplemen- Post 10/1/2003 PTD benefits/overall MMI tal benefits retroactive to March 29, 2009, but denied the claim for penalties and interest. The adjuster Crum and Crum Ins. v. Richmond,___So.3d___(Fla.1st testified at the subsequent hearing that the employer DCA 10/25/2010) elected to accept Claimant as permanently and totally The DCA reversed and remanded the JCC’s award disabled for administrative reasons retroactive to of PTD benefits, finding the record lacked the required May 6, 2009, because the employer received a medi- evidence that the claimant would be totally disabled cal opinion from a treating physician that Claimant upon reaching overall MMI. The Claimant had mul- had an overall impairment rating of 34% on May 13, tiple related and non related medical conditions. 2009. The JCC denied the claim for penalties. The DCA Claimant did not present proof that he will be totally analyzed the penalty statute, and noted the first issue disabled after reaching MMI for the right shoulder to be determined by the JCC was the date when PTD and low back conditions. Rather, Claimant argued benefits became due. The court then noted that it is not that PTD status should be determined based on his the burden of the claimant to prove entitlement to the condition as it existed at the expiration of temporary benefits to prove entitlement to penalties. The DCA disability benefit eligibility, regardless of whether noted that the E/C presented no evidence as to why he had reached MMI. The court noted, however, the their acceptance did not occur until July 23d, found test for PTD prior to the date of MMI is not whether no evidence that the delay was beyond the control of a claimant is totally disabled upon the expiration of the carrier, and awarded penalties from May 16, 2009 temporary disability benefit eligibility, and will have forward. With regard to interest, the DCA reversed a permanent impairment after reaching MMI. The and remanded the JCC’s finding that no interest was test is whether a claimant is totally disabled upon due, as the legislature did not characterize F.S. s. the expiration of temporary benefit eligibility, and will 440.20(8)(a)(2007) as punitive. That section awards remain totally disabled after the date of MMI. The interest without regard to fault, and thus interest is court distinguished “impairment” from “disability” and due whenever a carrier untimely pays benefits. rejected the claimant’s argument that Emanuel vs. Piercey Plumbing controlled, noting that the Piercey Permanent Total Disability/Requisite Evidence award was made post MMI. The DCA acknowledged East v. CVS Pharmacy/GAB Robbins,___So.3d___ this ruling creates a “gap period” for claimants that (Fla.1st DCA 12/14/2010) have exhausted temporary benefits but have yet to reach overall MMI, noting that issue should be ad- The DCA affirmed a denial of PTD, finding the dressed by the legislature. claimant failed to show her disability would continue after reaching overall MMI. The claimant received 104 Entitlement to Penalties and Interest weeks of temporary indemnity benefits, and then filed for PTD. As of the December 2009 hearing, the ortho- st Jones v. City of St. Petersburg,___So.3d____(Fla.1 pedic surgeon restricted the claimant to sedentary DCA 10/25/2010) work, requiring her to sit with her leg elevated and ice The E/C voluntarily accepted the claimant as PTD her knee frequently. But the surgeon would not impose on July 23, 2009, retroactive to May 6, 2009. They took permanent physical and work restrictions or find MMI a credit for IB payments, but paid no penalties and until the claimant completed physical therapy, and PROVE YOU’RE AN EXPERT Become Board Certified Are you ready for the challenge? Board certified lawyers are legal experts dedicated to professional excellence. FloridaBar.org/certification

Workers’ Compensation Section 57 News & 440 Report • Case Law Update jective medical findings to support her claims of knee pain. Initially, the JCC denied the request as there were no objective signs of injury. After a prior DCA opinion merely stated “reversed and remanded,” the the psychiatrist would not put the claimant at MMI JCC then denied the request finding that the request for depression, anxiety and insomnia secondary to was for a transfer of care rather than an evaluation. chronic pain until she reached orthopedic MMI. Only The DCA, citing the recent Morrow v. Sam’s Club case, the pain management specialist deemed her at MMI held the JCC erred in analyzing the request under the for chronic knee and leg pain, but would not assign “objective relevant findings” standard in F.S.§440.09. work restrictions until the orthopedic surgeon placed Rather, the JCC should have considered whether the the claimant at MMI and she underwent an FCE. The request was medically necessary under F.S.§440.13(2) DCA noted that a finding of PTD pre-MMI requires (a)(2007). The court held the analysis of “transfer of evidence of total disability that will exist after overall care” vs. “evaluation” was a distinction without a dif- MMI. Although the treating orthopedist had assigned ference, in that in either instance, the intent was to total disability restrictions, he would not testify that discern whether objective medical evidence existed to those restrictions would exist after the claimant com- support the complaints. pleted physical therapy, or what post MMI restrictions would be. Binding Nature of Stipulations/Medical Neces- sity Unemployment Benefits/Definition of Miscon- duct and Absenteeism Marin v. Aaron’s Rent to Own/Broadspire,___So.3d___ (Fla.1st DCA 12/3/2010) Gonzalez v. Unemployment Appeals Commission/ Quick Clean, ___So.3d___(Fla.1st DCA 12/14/2010) The DCA affirmed the JCC’s denial of PTD without comment. However, the DCA modified an Order re: The DCA affirmed a denial of UC benefits. At issue authorization of a physiatrist in Colombia, finding was the interpretation of the statutory definition of it at odds with the terms of the Pretrial Stipulation. “misconduct,” which is identical to the definition used Claimant was injured in 1998, and moved back to Co- in Chapter 440. The DCA noted that absenteeism can lombia in 2004. After filing a PFB for authorization of result in misconduct, when it is “excessive unauthor- a physiatrist, the E/C represented in a 2008 Pretrial ized absenteeism,” citing prior case law indicating Stipulation that they would authorize a physiatrist in that “…(t)he term ‘unauthorized’ implicitly connotes Colombia. The opinion notes this stipulation was “with- an element of willfulness because it means that the out conditions or contingencies.” 18 months later, the absences were unexcused and without the permission E/C sought to amend the PT Stip to include the defense of the employer.” The DCA approved the referee’s inter- of medical necessity. The JCC then entered an order pretation of the statute re: misconduct. They rejected indicating the E/C was to provide the physiatrist, “upon the appellant’s arguments that her absences were not referral” from the claimant’s Colombian treating ortho- willful as they were the result of attending medical pedist. The DCA reversed and remanded, noting the appointments for a workplace injury. The DCA noted JCC’s order impermissibly modified and rewrote the that although the evidence showed some absences for agreement the claimant sought to enforce. The DCA such appointments, numerous unauthorized absences noted that the agreement in the PT Stip to provide the for other reasons existed in the record. physiatrist was unambiguous and clear, and the JCC was not permitted to attach additional conditions or Medical Benefits barricades to the authorization. A concurring opinion noted the opinion was in conflict with the recent Sa- Medical Benefits/Choice of Doctor linas v. C.A.T. Concrete decision, (holding a JCC “…is not required to follow a stipulation that is refuted by A. Vanish Pest Control/Assoc. Ind. V. Martinez,___ competent, substantial evidence”). The decision does st So.3d___(Fla. 1 DCA 10/18/2010) not characterize the “medical necessity” issue as a con- In a very short opinion, the DCA reversed the JCC’s tinuing requirement for care. The lesson here should order awarding the claimant a “back specialist of his be that when representing that a healthcare provider own choosing” as no such provision exists in the stat- is authorized, include the words “so long as the treat- ute, citing Carmack v. State Dept. of Agriculture. ment is reasonable, medically necessary and causally related,” lest their authorization become eternal. Physician Referrals/Standard for Award Harman v. Gadsen Correctional/AIG Claims,___ Major Contributing Cause/Occupational vs. So.3d___(Fla.1st DCA 10/29/2010) Non-Occupational Causes st Claimant sought an orthopedic evaluation based Bysczynksi v. UPS/Liberty Mutual___So.3d___(Fla.1 on undisputed medical testimony that the evaluation DCA 12/28/2010) was necessary to determine whether there were ob- The DCA reversed the JCC’s Order denying a cervi-

Workers’ Compensation Section 58 News & 440 Report • Case Law Update authorized, the claimant offered the testimony of the adjuster which discussed the initial request and denial of authorization of Dr. Walker. However, the written request and denial were not offered into evidence. The cal fusion, remanding for entry of an order awarding DCA held the adjuster’s testimony sufficient to show the surgery. The DCA noted that all of the evidence a request and failure to provide within a reasonable showed that the MCC of the claimant’s need for the time. The DCA specifically ruled that the claimant, surgery was work related. The claimant had a com- per F.S. 440.13(2)(c)(2007) is not required to attach pensable injury in 2005, with resulting discectomy and supporting documentation of the need for a request, as fusion at C5-6. After his MMI date in October of 2005 a pre-requisite for the JCC to deem that physician au- (with a full duty release and return to work with the thorized by operation of law. However, F.S. s.440.02(40) employer), the claimant required no medical treatment (2007)(“specificity”) does require a Petition for Benefits until Feb. of 2007. At that time the claimant injured to include a written recommendation by a physician his neck and right shoulder in two separate incidents. that treatment (including psychiatric treatment) is The same surgeon treated the claimant again. Claim- being recommended. ant had a partial shoulder replacement with another doctor, and was referred back to the neck surgeon after Award of Temporary Indemnity/Admissible persistent complaints. The surgeon recommended a Medical Evidence fusion at C6-7 and removal of the plate at C5-6, which City of Auburndale/PGCS v. Searfoss,___So.3d___ the carrier denied. The carrier obtained an IME who st opined the current need the recommended neck proce- (Fla.1 DCA 2010) dures was degenerative. The EMA opined in his report The DCA reversed and remanded the JCC’s award that the MCC was degenerative, but at trial testified of TTD benefits, finding the JCC relied solely on the the injuries caused by the 2007 accident combined with opinions of an unauthorized doctor in determining the the 2005 “problems” to cause the need for the surgery claimant was entitled to TTD. The DCA noted that in question, and he could not say that Claimant would doctor’s testimony did not become admissible, even have required the surgery in question, absent the oc- under Parodi. currence of the 2007 accident and resulting injuries. The DCA characterized the claimant’s degenerative Attorney Client Privilege/Discovery changes as “age appropriate,” finding no evidence of a Hagans v. Gatorland Kubota LLC/Sentry Ins.___ need for treatment for degenerative changes indepen- So.3d___(Fla.1st DCA 9/16/2010) dent of the two accidents. The DCA repeated that the The DCA quashed an Order of the JCC compelling MCC analysis does not apply where a previous condi- the claimant to provide a list of prior doctors and medi- tion is due to an occupationally related cause. cal treatment contained in his attorney’s “client intake form.” The court noted that attorney client privilege protected the list. They noted the JCC correctly ruled Practice/Procedure the claimant’s prior claims and medical history are discoverable, but compelling the attorney to produce Admissible Medical Evidence/Authorization by the list was an abuse of discretion. The DCA noted the “Operation of Law” claimant produced all information in his possession Romano v. Trinity School for Children/Summit Claims regarding prior claims. The attorney client privilege Center,___So.3d___(Fla.1st DCA 9/13/2010) is not subject to a balancing test (ie. such lists are not The DCA reversed the JCC’s refusal to admit a non- discoverable if the E/C has no other means to obtain authorized, non-IME or EMA physician’s testimony, that information). The DCA noted that other means of per the recent Parodi decision. In Parodi, the DCA discovery are available to discover the facts at issue, noted that otherwise inadmissible medical testimony although the court notes that interrogatories, previ- may become admissible if the claimant makes a spe- ously prohibited under the prior “4.0” rules of proce- cific request for medical treatment, allows the E/C dure, still appear to be prohibited under the current “Q” rules. The court considered the request to produce a reasonable time to respond, and then obtains care a “list” as a prohibited interrogatory. that is reasonable, medically necessary and causally related. Here the claimant requested authorization Apportionment /Controlling Law of a psychiatrist which was denied by the E/C, and obtained treatment with Dr. Walker on her own. Sub- Braun v. Brevard County,___So.3d___(Fla.1st DCA sequently the E/C authorized Dr. Forman, but not 9/30/2010) until both parties obtained IMEs months later. The The DCA reversed the JCC’s order denying the claimant subsequently filed PFBs seeking payment claimant’s Petition to require the carrier to pay all for past treatment with Dr. Walker, future treatment medical benefits for a 1993 D/A at 100%. The claimant with him in lieu of Dr. Forman, and temporary ben- had compensable cervical injuries with the county in efits. In support of their position that Dr. Walker was 1993 (C5-6) and 2005 (C4-5). The claimant obtained

Workers’ Compensation Section 59 News & 440 Report • Case Law Update passed a pre-employment drug test, did not test posi- tive for alcohol on the date of accident, and asserted he had been sober for three months pre-accident. His girl- friend, however, testified he had been drinking 12-24 $15,000 in a subrogation claim related to the later beers three times a week, taking Xanax, and smoking accident, and the parties stipulated the carrier could three packs of cigarettes a day. The E/C presented the offset the cost of future remedial care at 25% for the 2005 accident. A physician authorized to treat the testimony of a non-M.D., PhD Toxicologist to assist in claimant for both injuries subsequently testified that rebutting the testimony of the EMA. That expert, over each accident was 50% responsible for the claimant’s claimant’s objections, gave multiple opinions that the need for treatment. The E/C then sought to allocate claimant’s condition was not related. The DCA rejected or apportion the two accidents. The claimant asserted the E/C argument that it was harmless error for the he could choose the date of accident under which JCC to have considered this testimony as a basis for benefits would be paid. The JCC indicated that prac- the denial, as their IME provided the same opinion. tically speaking, he could not see how the doctor was They remanded for the JCC to make such a finding prescribing medications for one cervical level and not without considering the testimony of the toxicologist the other. He denied the claims, citing 440.42(4)(2005) regarding medical causation. and Pearson v. Paradise Ford. The DCA summarily reversed and remanded. They held that the claim- Temporary Benefits and Medical Benefits/Req- ant’s 1993 medical care could not be apportioned, as uisite Proof the statute did not include medical benefits in the Morton’s of Chicago/Broadspire v. Lira,___So.3d___ apportionment statute until 2003. They further held (Fla.1st DCA 10/13/2010) Pearson did not apply, and the law in effect required The DCA affirmed in part and remanded in part the the E/C to provide treatment for the 1993 under the JCC’s order determining a cervical injury was compen- logical cause standard, regardless if the treatment sable, and awarded TTD and medical bills. The DCA re- necessarily treated post 2003 conditions or injuries. jected as waived the E/C argument that the claimant’s IME testimony should be stricken, as the IME charged Expert Medical Advisors/Qualifying Disputes in excess of allowable charges. The DCA awarded a AA Gutter Cleaning Inc./First Commercial Claims,___ period of TTD post surgery, although they cite to no So.3d___(Fla.1st DCA 9/22/2010) specific medical testimony regarding disablement in The DCA reversed and remanded an order of the the record. They remanded the case to determine en- JCC finding no conflict to warrant appointment of an titlement to TPD for a period where the JCC awarded EMA. The JCC ruled that the dispute had to occur TTD. The most interesting aspect of the opinion is the between health care providers in the same specialty. DCA’s finding of compensability of hospital and doctor The DCA rejected the argument that as 440.13(9)(a) charges for the surgery the JCC determined to be com- (2004) requires AHCA to certify expert medical advi- pensable. The E/C did not stipulate the bills would come sors “in each specialty,” only disputes between doctors into evidence. The claimant provided “no meaningful in the same specialty merit appointment of an EMA. evidence connecting the bills” to the treatment received. Nevertheless, the JCC determined the JCC was within Expert Medical Advisors/Authorized Medical his discretion to determine the relatedness of the bills. Evidence to overcome EMA Presumption The DCA noted that “significantly,” the E/C did not of- Witham vs. Sheehan Pipeline Construction/Zurich fer evidence they were NOT causally related. The DCA American Ins.,__So.3d___(Fla.1st DCA 9/23/2010) rejected other bills where the connection to the awarded cervical condition and surgery was not evident. Also The DCA reversed the JCC’s denial of compensa- interesting, the decision does not characterize whether bility, finding the JCC impermissibly considered the opinion of a non M.D. Toxicologist, in conjunction with the claimant was seeking reimbursement of the bills other admissible medical testimony, to reject an EMA for sums personally paid. The underlying Order is also opinion. The claimant collapsed at work. His resulting unclear. The general rule is the claimant does not have condition required nursing home and rehab care. The standing to seek reimbursement of bills by a third party E/C, upon learning of the claimant’s long time habitual provider, nor does the JCC have jurisdiction to order alcohol abuse (among other conditions) denied the payment to third parties. The opinion then states that claim on multiple grounds, but primarily that the work although they found the bills compensable here, they performed was not the MCC of the accident or result- clarify that in the future litigants must present admis- ing need for care or lost wages. They also asserted a sible evidence connecting the treatment to the injury. denial based upon the accident being predicated on an acceleration of alcoholism. The parties each obtained WC Exclusivity/Constitutional Issues/Prema- IMEs. The JCC appointed an EMA, who opined that ture Appeals the claimant’s chronic alcohol abuse did not cause the Mejia v. Chevron/Broadspire,___So.3d___(Fla.1st DCA industrial accident. Of note, the claimant testified he 10/15/10)

Workers’ Compensation Section 60 News & 440 Report • Case Law Update injured worker will actually receive any benefits in the future from which the employer can recover the sum advanced, nor does the statute limit advances to cases in which compensability is established. In so The DCA declined to address the claimant’s ar- holding, they cited to the 1999 Williams case, which gument that the MCC standard unconstitutionally discussed the issue of employer prejudice (ie. paying deprived her of access to courts. The claimant argued money they may never actually owe) but found it sig- that she is barred from bringing a civil cause of action nificant that numerous legislative changes to Chapter for negligently inflicted injuries in a work-related acci- 440 had not seen fit to clarify this issue. This case has dent, where those injuries are not compensable under already prompted mass requests for advances from Florida’s Workers’ Compensation Law because the claimant attorneys. However, the claimant must still work-related accident is not the “major contributing prove one of the three elements above to be awarded cause” of the injuries. The DCA would not address the such advance. merits of this claim, finding it premature and specula- tive, as the claimant has not attempted to file a civil Medical Benefits/Evidence to Support Psychi- action for negligence against her employer in circuit atric Award court nor has the employer raised the affirmative de- fense of workers’ compensation immunity/exclusivity. St. Johns River Power Park/Scibal Assoc. v. Griffis,___ So.3d___(Fla. 1st DCA 10/18/2010) Jurisdiction of JCC/Appealable Issues The DCA affirmed an award of a psychiatric condition Dept. of Revenue/Div. of Risk Mgmt. v. Groman,___ without opinion. A written dissent however, discussed So.3d___(Fla.1st DCA October 15, 2010) that the JCC’s award was not based on competent substantial evidence. The dissent noted that imprecise The DCA dismissed the appeal as the order com- questions were asked of the doctor, and that that expert plained of was non-final and non-appealable. The JCC witness was unaware that a lumbar condition had been excluded the opinions of an EMA and appointed a deemed unrelated to the industrial accident. substitute EMA. The parties incorrectly asserted the JCC lacked “jurisdiction” to so rule. The DCA clarified Motions to Dismiss/Permissible Analysis by JCC that they are allowed to review non-final orders adju- dicating jurisdiction under Florida Rule of Appellate Locker v. Utd. Pharm. Group/Zenith,___So.3d___ st Procedure 9.180(b)(1)(A)(governing to orders wherein (Fla.1 DCA 10/29/2010) the JCC’s jurisdiction over the parties, the subject mat- The claimant filed a PFB for continued treatment ter, or the case is at issue and adjudicated). That rule of her right shoulder, attaching a physician’s note. does not serve as a means to facilitate an interlocutory The E/C moved to dismiss, alleging that the JCC’s appeal where there is no such dispute. The Appellant prior Order accepting an EMA’s finding of MMI, 0% also requested the DCA to correct the JCC’s decision impairment, and no ongoing MCC of the claimant’s and remand back to the JCC, which the appellate right shoulder meant the claim was not “ripe, due or court noted conflicted with the argument that the JCC owing.” The DCA noted that in ruling on a motion to lacked “jurisdiction” to so rule. The DCA also rejected dismiss, the JCC is to accept the allegations in the PFB the notion that the issue could not be treated in the in the light most favorable to the claimant, and that alternative as a petition for writ of certiorari, as the the JCC may not look beyond the four corners of the JCC’s decision striking the EMA could be addressed pleading. In reversing, the DCA noted the JCC erred following entry of a final order on the matter. in considering evidence outside of those parameters in considering the prior ruling on the MCC of the claim- Advances in Controverted Cases ant’s shoulder. The DCA noted that such evidence may Lopez v. Allied Aerofoam/Specialty Risk,___So.3d___ indeed be relevant and properly considered at later (Fla. 1st DCA 10/18/2010) stages of litigation, but not at the Motion to Dismiss phase. A concurring opinion suggested that JCC’s may The DCA reversed the JCC’s denial of a statutory not be so tightly constrained to the four corners of the $2,000 advance, holding the JCC erred in denying PFB, and where the parties stipulate, a JCC could the request based solely on the fact that the E/C con- perhaps decide dispositive matters with extra record troverted the case. The JCC noted the claimant had evidence. suffered an apparent physical impairment. The DCA noted that F.S. s. 440.20(12)(c)(2009) allows a JCC to Jurisdiction of JCC post Settlement/Attorney award an advance , after giving due consideration to Fee Liens the “interests of the person entitled thereto,” where a claimant demonstrates one of the following: (1) fail- Hack v. Chuck Norris Drywall/Amerisure,___So.3d___ st ure to return to employment at no substantial wage (Fla.1 DCA 10/29/2010) reduction; (2) a substantial loss of earning capacity; The JCC approved an Order allocating fees in a or (3) an actual or apparent physical impairment. The washout. Apparently, a prior attorney represented court noted the statute does not require proof that the at the time of settlement that he was seeking ap-

Workers’ Compensation Section 61 News & 440 Report • Case Law Update which represented the Claimant in this matter. Kelley filed a motion to disqualify Zaldivar, which Zaldivar opposed. The JCC, relying on Pace v. Miami-Dade County School Board, 868 So. 2d 1286 (Fla. 1st DCA proximately $2,000 in fees and costs. Subsequently, 2006), denied the motion, finding he lacked jurisdic- he asserted entitlement to additional fees and costs, tion to grant it because he had no express statutory which the JCC karate chopped. The JCC held his authority to enforce the Florida Rules of Professional initial assertion at mediation to fees and costs due Conduct. The court, treating the issue as a Petition for from the E/C amounted to a waiver, and held she was Writ of Mandamus, found that Pace did not apply, as without jurisdiction to rule on his claims for further that case involved an attempt by a JCC to discipline fees after she signed order approving fees and costs an attorney for violations of the Rules of Professional on the washout. The DCA gave the JCC a round house Conduct, because only the Supreme Court holds the kung fu kick to the solar plexus, as she did not rule on power to so discipline attorneys. However, here the the merits of the former attorney’s claims. court found that JCC’s have jurisdiction to ensure compliance with the Rules of Professional Conduct. Motions to Vacate Settlements Cordovez v. High-Rise Installation/Bridgefield,___ Appellate Jurisdiction/Non-Final Orders So.3d___(Fla.1st DCA 10/29/2010) NFL Eurpoa/ACE/ESIS v. Charles,___So.3d___ The parties attended a private mediation and set- (Fla.1st DCA 11/5/2010) tled the case in December of 2006. In January of 2009 The DCA dismissed the Employer/Carrier’s Appeal, the claimant moved to vacate the settlement, alleging determining it did not have jurisdiction under the that a “mutual mistake of fact” (condition diagnosed Appellate Rules. The JCC entered an Order denying post settlement now alleged as related to the IA was a Statute of Limitations defense. The court reasoned “unknown to the parties”). The JCC denied the mo- that the ruling essentially begins the underlying tion. The DCA held that the JCC correctly denied the litigation process (here the issue of whether further motion, agreeing with his logic that claims for release treatment for a knee injury may be awarded) rather from liability for personal injury cannot be voided than ending the underlying litigation. As such, the simply because the injuries may turn out to be more Order on Appeal was non-final, non-appealable, but severe than anticipated. The court noted that media- not a non-final non-appealable order which may be tion is an alternative dispute resolution process not to reviewed under the appellate rules. be entered into lightly. They stated “parties have . . . the right to make, what is apparent in hindsight, a bad Enforcement of Settlements/Parol Evidence bargain — especially when represented by counsel.” Barnwell v. Miami Dade County School Board/Gal- Admissible Medical Evidence lahgher Bassett,___So.3d___(Fla.1st DCA 11/22/2010) KFC/Yum! Brands/Gallagher Bassett v. Moore,___ The DCA reversed an Order of the JCC “enforcing” So.3d___(Fla.1st DCA 2010) a settlement, finding the JCC improperly excluded parol evidence. Generally, interpretation of a contract The DCA, in another Summary Disposition (Rul- should be limited to the language in the contract. ing Immediately after Appellant Brief filed without However, ambiguity in a contract may allow introduc- requiring an Answer Brief) affirmed a JCC’s reliance tion of parol, or outside evidence to assist the court in on testimony from the claimant’s “longtime treating reconciling the ambiguity. In this case, the claimant physician.” The DCA rejected the E/C argument that had six separate dates of accident with the employer. the doctor’s opinion should have been rejected due to At mediation, the parties entered a settlement agree- alleged conflicts between his testimony and that of the ment, which appeared fairly clear. The problematic claimant. The DCA indicated that sufficient grounds portion indicated the claimant would sign a “resigna- existed to accept the doctor’s opinion, and repeated tion and release” for $100 consideration. The claimant the standard that JCC orders will be affirmed where sought to void the entire settlement, after receiving competent substantial evidence exists in the record to paperwork including all conceivable causes of action. support the ruling, and will not be reversed because The general release also gave the claimant a time pe- other evidence may be pointed to which would support riod of seven days to revoke the release, after signing a contrary decision. it, (per Federal Law governing Age Discrimination claims). The JCC refused to consider the “proffered Powers/Jurisdiction of JCC settlement paperwork” (which included the general Matrix Employee Leasing/FWCIGA v. Pool,___ release), found the parties agreement was unambigu- st So.3d___(Fla.1 DCA 11/2/2010) ous and enforceable and ordered the claimant to sign After representing Petitioners as a member of the the settlement documents and general release. The Kelley, Kronenberg firm (“Kelly”), Attorney Miller DCA noted the JCC does not have the power to order became an employee of Zaldivar, P.A (“Zaldivar”), a claimant to sign a general release, and reversed

Workers’ Compensation Section 62 News & 440 Report • Case Law Update torney fee to the claimant for defending what the DCA determined to be a frivolous appeal. The Employer then filed what the court determined to be a frivolous and remanded for the JCC to consider the proffered response to claimant’s Motion for Enforcement of that settlement documents as parol evidence. Order. The Employer argued that the DCA order only instructed the JCC to establish the amount of the Powers of JCCs fee, but did not provide for enforcement of that order. Ekechi v. First America/Gallagher Bassett Svs, ___ The DCA summarily dismissed this and any other So.3d___(Fla.1st DCA 12/8/2010) arguments furthered by the employer as evincing ignorance of the pertinent statutes and rules. They Struck the phrase “Interest will accrue on any imposed further fees as a sanction for complete and unpaid sum at the rate allowed by statute. For all of continuing disregard of established law. which let execution issue” from a JCC’s order, holding that JCCs issue compensation orders, rather than Attorney Fees/Carrier intent to suspend benefits judgments. Affirmed as to all other issues. Interstate Brands/Broadspire v. Blanco, ___So.3d___ (Fla.1st DCA 11/30/2010) Attorney Fees and Costs The claimant received PTD for years, when those benefits suddenly ceased. The claimant filed a PFB, to Appellate Attorney Fees/Enforcement and Ju- which the E/C did not respond within 30 days. The car- risdiction to Award Sanctions rier subsequently picked the PTD (not the “fees) back South Florida Express Bankserv, Inc. v. Aponte,___ up, paying with penalties and interest. The claimant So.3d___(Fla.1st DCA 9/22/2010) sought a fee based on the past PTD (not fees) paid, The First DCA previously awarded an appellate at- and the value of PTD benefits in the future. At the fee

FloridaBarCLE Audio CD / Video DVD products available

Creative Strategies Ethical Questions Common for Workers’ & Answers for the Compensation Worker’s Compensation Mistakes & Costly Mediations Practice Mistakes

28 Practice Areas • Over 200 Programs

For a complete list of CD’s/DVD’s, visit www.floridabar.org/CLE. Click “Order Online” and search by City, Course Number, Sponsor or Title.

CD’s and DVD’s come with Electronic Course Materials unless otherwise indicated on the AV List.

Workers’ Compensation Section 63 News & 440 Report • Case Law Update of Costs, to “reduc(e) the overall costs of litigation and keep such costs as low as justice will permit.” Therefore the costs were not barred by res judicata. hearing, the adjuster testified the failure to pay PTD Attorney Fees/Medical Only Claims was unintentional and the result of administrative oversight. There was no other testimony. The JCC held Clay County Sherriff/Scibal Associates v. Kraemer,___ that the carrier’s intent did not control fee entitlement, So.3d___(Fla.1st DCA 12/14/2010) and rejected the E/C arguments that fees should be The DCA reversed the JCC’s award of attorney limited to only the past benefits. At rehearing, the JCC fees and costs. The claimant sought authorization of reduced the fee award from approximately $56,000 to neuromuscular massage. Among other defenses, the $40,000, based on a reduction of the value of benefits E/C alleged the JCC did not have jurisdiction over the obtained in the future. The DCA reversed and re- issue. The JCC denied the massage as not being medi- manded, holding that although they did not condone cally necessary, but awarded the claimant attorney a the carrier’s inattentiveness to paying benefits, where fee for “establishing jurisdiction.” The DCA found the the carrier does not affirmatively seek to suspend or award of fees under the “medical only” section of the deny benefits, the fee should be figured only on the statute erroneous. amount of past benefits obtained. The dissent argued that the intent should be irrelevant. Prevailing Party Costs/Enforcement Lakeland Regional Medical Center/Commercial Risk Prevailing Party Costs/Res Judicata v. Weech,__So.3d__(Fla.1st DCA 12/21/2010) Hernandez v. Manatee Co. Govn’t/Comm. Risk Mgmt., st The DCA affirmed the JCC’s refusal to certify facts ___ So.3d ___ (Fla.1 DCA 12/8/2010) related to the claimant’s failure to pay prevailing party The claimant appealed the award of costs to the costs to the circuit court. The E/C sought this certifica- E/C as a result of a merits hearing for a 2008 PFB. tion in an attempt to enforce its cost award in circuit The claimant argued that many of the costs claimed court. The DCA agreed with the JCC that although the had previously been denied to the E/C as a result of contempt statute discusses contempt for a party that a 2007 PFB. The JCC considered whether each cost “disobeys a lawful order or process” under 440, failure item was “relevant to any issue,” regardless of the to pay prevailing party costs is not contempt under date it was obtained. The DCA found that the deposi- this section. The DCA noted that this section exists to tions were used to support the defense of claims in ensure orderly process before the JCC, but not to act as both PFBs and that the motion to tax costs did not an enforcement mechanism for JCC orders. They also become ripe until the order was issued on the 2008 rejected the E/C’s argument that such a certification PFB. The E/C used prior deposition testimony (instead was necessary so the E/C could take its cost award to of incurring further costs to re-depose physicians) to circuit court. The DCA noted that recent cases indicate promote judicial economy. The DCA noted this result that an E/C may enforce or seek to collect cost awards was consistent with the Fla. Supreme Court’s public “as any other debt (would be) in the appropriate court,” policy statement on the Uniform Guideline of Taxation without further comment.

THE FLORIDA BAR MEMBER BENEFITS www.floridabar.org/memberbenefits

• BANK PROGRAMS • INSURANCE & RETIREMENT • LEGAL RESEARCH PROGRAMS • LEGAL • EXPRESS SHIPPING PUBLICATIONS • GIFTS & APPAREL • CAR RENTALS

Workers’ Compensation Section 64 News & 440 Report Friends of 440 Scholarship Welcomes You! The Friends of 440 Scholarship Fund, Inc. is a 501(c)(3) charitable organization whose membership is comprised of attorneys, doctors, insurance adjusters, Judges of Compensation Claims, claims administrators, rehabilitation providers and others whose primary employment is connected within Florida’s Workers’ Compensation system. Throughout the year we put our differences aside and raise scholarship funds to aid students who lack the economic ability to continue their education beyond high school or to further their college education. The Friends of 440 Scholarship Fund, Inc. has been in existence since 1991 and over the course of the past 18 years has raised almost $1 million which has been used to assist over 518 qualified college students achieve their educational goals. During the 2009-2010 selection scholarship process, The Friends of 440 Scholarship Fund, Inc. is proud to announce the award of over $73,000.00 in scholarship funds to 43 applicants throughout the State of Florida. The number of scholarships awarded each year is directly related to the amount of funds available. Therefore, fund-raising is an important activity for this non-profit corporation. Vari- ous fund raising projects are undertaken each year throughout the state of Florida. Corporate and individual donations are welcomed, and are tax-deductible.

Our Mission Statement To aid dependents or descendants of workers who are injured in the course and scope of their employment and receive benefits under the Florida Workers’ Compensation Law and who reside or whose accident occurred in the State of Florida. Applicants must not be related directly or indirectly to any member of the Board of Directors. Furthermore, dependents or descendants of individuals who primarily engage in the operation and/or administration of the Florida Workers’ Compensation Law are eligible to receive the scholarship on a statewide basis. This scholarship is intended to aid students who lack the economic ability to continue education beyond high school or to further their college education. Applications must be submitted prior to February 28th, of the year the scholarship is to be awarded.

Mail Us Your Donations Or Feedback: We welcome your donations and your feedback! The location of our headquarters is: The Friends of 440 Scholarship Fund, Inc., 9350 South Dixie Highway, 10th Floor, Miami, FL 33156- 2900

Scholarship applications are available as a pdf at http://www.440scholarship.org/the-scholarship/application.

Workers’ Compensation Section 65 News & 440 Report The Florida Bar – Workers’ Compensation Section Application for Membership

The practice of Workers’ Compensation Law is constantly changing, and the Workers’ Compensation Section of The Florida Bar seeks to keep its members abreast of all the recent developments in the area through communication. Membership in the section provides access to the section’s newsletter The News & 440 Report, the section web page at: www.flworkerscomp.org, sponsored continuing legal education programs and section meetings.

Membership in this Section will: n Provide an organization for those with an interest in workers’ compensation law. n Provide a forum for communication and education for the improvement and development of the practice area of workers’ compensation law. n Provide a forum for the education of the Bar about the legal needs of the work force and for the education of the public on their legal rights and the availability of legal services. n Entitle the member to a reduced fee for section sponsored continuing legal education programs. n Support the pursuit of Legislation important to workers’ compensation law attorneys and their clients

To join, mail this completed application with your check to:

THE FLORIDA BAR WORKERS’ COMPENSATION SECTION 651 E. JEFFERSON STREET TALLAHASSEE FL 32399-2300

Enclosed is my check made payable to The Florida Bar for the appropriate amount (check one):

___ Member of the Section (active member of The Florida Bar): $50 ___ Affiliate member of the Section (Full-time, Florida law school student): $30

NAME:______

ATTORNEY NO. ______

BUSINESS NAME/ADDRESS: ______

______

CITY/STATE/ZIP: ______

(Note: The Florida Bar dues structure does not provide for prorated dues. Membership expires June 30.)

Referring Member: ______Attorney # ______

Workers’ Compensation Section 66 News & 440 Report