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Disability Law

Florida Workers’ Compensation Law Blog

News, legislative developments, and court decisions arising under the Florida Workers' Compensation Act.
By David A. McCranie, Esq.

Post Frequency: 1.1/day

Last Entry: August 24, 2009 at 08:40:29

Cancer Bill for Firefighters and Paramedics Re-Introduced

Posted on March 03, 2008
As he apparently promised he would (see this post), Senator Jeff Atwater, a Republican representing parts of Palm Beach and Broward Counties, has re-introduced a bill identical to last year's bills (see SB 1440 and HB 301 from the 2007 legislative session) which would provide cancer coverage for firefighters and paramedics...

Employee-Friendly WC Bill Introduced in Florida Senate

Posted on March 02, 2008
On 2/29/2008, Senator Steven R. Wise, a Republican from Northeast Florida, introduced SB 2548 in the Florida Senate. If passed at the upcoming legislative session set to begin on March 4, this bill would provide significant increases in the workers' compensation benefits payable to injured workers...

Trucking Company Not a General Contractor; No Duty to Provide WC Coverage for "Sub's" Employee

Posted on March 01, 2008
Section 440.10(1)(a), Fla. Stat., requires "every employer coming within the provisions of this chapter" - including both general contractors and subcontractors - to obtain workers' compensation insurance covering their respective employees...

EMA's Opinions Inconclusive: What to Do?

Posted on February 29, 2008
What happens if the JCC appoints an expert medical advisor ("EMA") to resolve a conflict in the medical testimony, but the EMA fails to express an opinion on the issue? That's what happened in Fitzgerald v. Osceola County School Board, decided on 2/19/2008...

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Governor Crist Still Considering Re-Appointment of JCC Dane

Posted on February 29, 2008
According to this report from the 2/21/2008 edition of the Florida Times-Union, Governor Crist has not yet decided whether to re-appoint Judge of Compensation Claims William H. Dane, Jr., as one of Jacksonville's two judges of compensation claims...

Insurance Commissioner Orders Excess Workers' Compensation Insurance Profits Returned

Posted on February 29, 2008
Florida Insurance Commissioner Kevin McCarty has ordered 6 workers' compensation insurance carriers to refund $4.2 million in excess profits to their employer policyholders. "Excess profits" result when the workers' compensation insurance carrier's "underwriting gain" for workers' compensation insurance exceeds its "anticipated underwriting profit" by a factor of 5%...

Claimant's False Social Security Number Not a Bar to Claim

Posted on February 29, 2008
I wrote here and here about whether false evidence of identification in the form of a false Social Security number can constitute "fraud" under §440.105(4)(b)9, Fla. Stat. JCC John P. Thurman in Gainesville recently weighed in on the subject in Gonzalez v...

Three Convicted in Fraudulent WC Insurance Scam

Posted on February 16, 2008
Three men were recently convicted by a federal jury in Jacksonville on various counts of conspiracy, mail fraud, wire fraud, and money laundering. According to the 73-page indictment, the men defrauded client companies of various professional employer organizations (PEOs) by having them pay premiums for workers' compensation insurance coverage...

Supreme Court Declines Review in Employee Leasing Case

Posted on February 14, 2008
In this 2/11/2008 order, the Florida Supreme Court has declined review of the First District Court of Appeal's decision in Blue Stone Real Estate v. Ward, sub nom., Matrix Employee Leasing, Inc., etc., et al. v. Ward, et al., Case No. SC07-1826. In Ward, the First District held that a leased employee remains an employee of the leasing company for workers' compensation purposes where the leasing company never notifies the leased employee that it has terminated its leasing contract with the client company.

Proposed Legislation Would Affect Employee Leasing Companies

Posted on February 13, 2008
Though Florida's annual legislative session is set to begin on March 4, so far only two bills have been filed which would meaningfully affect the area of workers' compensation. Those identical bills, SB 454 and HB 239, concern employee leasing companies...

Fifth Circuit: No Psychotherapist-Patient Privilege for Threats Made by Workers' Compensation Claimant

Posted on February 12, 2008
After his workers' compensation carrier notified John Auster, a retired New Orleans police officer, that it intended to terminate a portion of his workers' compensation benefits, Auster told his psychotherapist that he intended to commit acts of violence against some of the carrier's employees if they did...

PTD Standards for Post-10/1/2003 Claims: Wal-Mart Stores, Inc. v. Thompson

Posted on February 12, 2008
I wrote here about the case of Wal-Mart Stores, Inc., v. Thompson, Case No. 1D07-2661, a case concerning what quantum of proof a claimant must present in support of his post-10/1/2003 claim for permanent total disability benefits. The First District Court of Appeal issued its opinion in that case on 2/6/2008 in which it affirned the JCC's award of PTD benefits to the claimant...

First DCA Declines to Issue Petition for Writ of Certiorari in Attorney's Fee Case

Posted on February 12, 2008
I mentioned in this post that the law firm which filed an amicus brief on behalf of the Florida Police Benevolent Association and in support of the claimant in the Emma Murray case had cited one of its own cases, Weimer v. City of Kissimmee, as an example of a situation where the claimant has been hindered in his ability to retain counsel of his own choosing as a result of the 2003 amendment to §440...

Supreme Court Declines Review in Spoliation Case

Posted on February 05, 2008
In Perez v. La Dove, Inc., a case which I wrote about here and here, the Third DCA held that an injured worker must specifically request his employer to preserve evidence critical to his third-party liability claim before liability for spoliation of evidence will arise against the employer...

Permanent Total Disability Standards for Post-10/1/2003 Claims: Back to the Future?

Posted on February 01, 2008
Another of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was one changing the standards for awards of permanent total disability benefits. The impetus for this particular change apparently was the finding by FCCI in 2003 that permanent total disability claims in Florida were five (5) times the national average...

Firefighter Entitled to Benefit of Statutory Presumption; Awarded PTD Benefits

Posted on February 01, 2008
A firefighter who was diagnosed with peripheral vascular disease was entitled to the presumption afforded by §112.18(1) that the disease was caused by his employment. And because his condition met or equaled a "Listing," i.e. an impairment listed in 20 C...

Undocumented Worker Entititled to Medical Care - - In Mexico

Posted on February 01, 2008
In AMS Staff Leasing, Inc., v. Arreola, the employee, an undocumented alien who had entered illegally into the United States from Mexico, was injured in an on-the-job accident while working in Florida. After undergoing twelve post-accident surgical procedures, his physician recommended that he undergo yet another procedure...

Claimant Files Jurisdictional Brief in Estoppel Case

Posted on January 28, 2008
The claimant/plaintiff in Tractor Supply Company v. Kent, a case which I wrote about here, has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. In that case, the Fifth District Court of Appeal held that just because a workers' compensation carrier has previously denied an employee's workers' compensation claim, the employer is not necessarily estopped from asserting workers' compensation immunity as an affirmative defense to the employee's subsequent liability claim against the employer...

WC Release Bars Claimant's Pending Tort Claim Against Employer's Sister Corporation

Posted on January 28, 2008
Is a workers' compensation settlement agreement which purports to release the employer along with "its subsidiaries, affiliates, [and] parent companies" broad enough to release not only the employer from further liability under the Florida Workers' Compensation Law, but also the employer's sister corporation from the claimant's tort claim against the sister corporation? Yes,said the First District Court of Appeal in Churchville, et ux v...

First DCA: Employer/Carrier Must Provide Independent Medical Examination

Posted on January 28, 2008
"In any dispute concerning overutilization, medical benefits, compensability, or disability benefits under this chapter, the carrier or the employee may select an independent medical examiner." So begins §440.13(5), Fla. Stat. Nelis Pena, an injured worker, filed a petition for benefits claiming entitlement to various disability benefits under the Florida Workers' Compensation Law and subsequently filed this Motion to Compel the Employer/Carrier to provide a psychiatric independent medical examination ("IME")...

Carrier Barred from Asserting Statute of Limitations as a Defense

Posted on January 28, 2008
Section 440.19(1) and (2), Fla. Stat., says that a petition for benefits is barred by the statute of limitations unless it is filed within two (2) years from the date of accident, or within one (1) year from the time the employer last paid compensation or provided medical care to the claimant, whichever is later...

Parties File Jurisdictional Briefs in Estoppel Case

Steadman Files Her Jurisdictional Answer Brief

Posted on January 20, 2008
The plaintiff/claimant has filed her jurisdictional answer brief in the Florida Supreme Court in the case of Liberty Mutual Insurance Company v. Steadman (For previous posts about this case, see here, here, and here). The brief, which you can read here, says that the allegations of her complaint against Liberty Mutual and its claims adjuster are sufficient to state a claim for intentional infliction of emotional distress because those allegations go far beyond alleging a "mere delay" in providing medical benefits or a "minor delay" in the claims process...

Four More Briefs Filed in Suppport of Claimant in Murray v. Mariners Health

Posted on January 20, 2008
Four More briefs have been filed in the Florida Supreme Court in support of the claimant's challenge to the constitutionality of the 2003 amendment to §440.34, Fla. Stat., in the case of Murray v. Mariners Health. The first, filed by the Workers' Compensation Section of the Florida Bar, doesn't add much to the discussion...

Employee Failed to Report Accident Timely; Compensability Denied

Posted on January 09, 2008
Section 440.185(1), Fla. Stat., requires an injured worker to report an on-the-job injury to his employer within 30 days "after the date of or initial manifestation of the injury." Subsection (1)(b) provides an exception to that rule in cases where "[t]he cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion that the injury arose out of and in the course of employment...

Lawsuit Claims Attorney Stole Clients from Former Firm

Posted on January 04, 2008
The West Palm Beach law firm of Rosenthal & Levy has filed suit against the law firm of Morgan & Morgan. The suit claims that one of R & L's former associates improperly solicited some of the firm's clients to join him at M & M, his new firm...

Attorney's Fee Amendment Results in Worker's Inability to Find an Attorney

Posted on January 04, 2008
Here's a link to an article from the 12/30/2007 edition of the Palm Beach Post regarding the effect of the 2003 amendment to §440.34, Fla. Stat. As the attorneys challenging the constitutionality of the amendment have argued in Murray v...

Department of Financial Services Issues Annual Report on WC Fraud

Posted on January 04, 2008
Section 626.989(9), Fla. Stat., directs the Department of Financial Services to prepare an annual "joint performance report" to the legislature on workers' compensation fraud by January 1 of each year. The Department has now issued its report covering the period 7/1/2006 through 6/30/2007, which you can read here...

Liberty Mutual Files Jurisdictional Brief in Steadman Case

Posted on December 26, 2007
In Liberty Mutual Ins. Co. v. Steadman, a case which I wrote about here and here, the Second District Court of Appeal held that Steadman's complaint, which alleged that Liberty Mutual had refused to authorize treatment for her life-threatening medical condition even after the JCC ordered them to do so, stated a valid claim for intentional infliction of emotional stress...

Judge Ervin Co-Authors Amicus Brief in Support of Petitioner in Murray

Posted on December 26, 2007
The Honorable Richard W. Ervin, III, recently retired from his long tenure as a member of the First District Court of Appeal, has co-authored this amicus brief which has been filed in support of the petitioner in Murray v. Mariners Health and on behalf of Voices, Inc...

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