News Service of Florida - May 30th, 2009

Without any fanfare, Gov. Charlie Crist on Friday signed legislation sought by the business community that will restore a statutory fee schedule for plaintiffs lawyers in workers compensation cases.

A previous fee schedule that effectively limited how much lawyers can earn for representing injured workers was thrown out by the state Supreme Court last year, leading to widespread fears in the business community that years of declines in workers comp insurance premiums would be reversed.

And in fact, it appeared that rates were headed back up – the state Office of Insurance Regulation had already approved one workers comp premium increase citing the Supreme Court ruling last year in Murray v. Mariner. Commissioner Kevin McCarty ordered a 6.4 percent increase in workers’ compensation rates in the wake of the ruling, though that can be revisited considering the new law.

Opponents of the bill (HB 903) warned during the session that simply restoring the cap and removing statutory language that had been in the previous law that required workers comp fees be “reasonable,” simply invited another court challenge. The Supreme Court said in Murray that the law was inconsistent because it limited attorneys fees to what the fee schedule allowed, yet required they be “reasonable,” and the two things were sometime incompatible. In the Murray case, the lawyer collected about $8 an hour under the fee schedule.

The workers compensation lawyer fee cap was one of several reforms made by lawmakers in 2003 to try to address high premiums. And in addition to a crackdown on fraud, it worked, as premiums dropped fairly steeply over the last few years.

The bill, sponsored by Rep. Anitere Flores, R-Miami, in the House and Sen. Garrett Richter, R-Naples in the Senate, was sought by nearly every large and small business group.

And they applauded the governor’s move Friday.

“With unemployment in Florida at 9.6 percent, Florida’s employers need these resources to hire more employees and assist them in transitioning through these tough economic times,” the Florida Chamber said in a statement. “This legislation ensures injured workers receive more in benefits than plaintiffs’ trial lawyers do in fees. The signing of this critical legislation is a victory for Florida’s employers, especially small businesses, who cannot afford higher costs simply to increase attorneys’ fees.”

Associated Industries of Florida president Barney Bishop said the new law would “safeguard the system from reaching the crisis point it did several years ago as a result of unbridled litigation.”

But the bill was staunchly opposed by trial lawyers, who said it will deprive injured workers of representation in some cases. In cases that are expensive to try, there will be no incentive for a lawyer to take the case, the trial bar said. The measure was also opposed by rank and file firefighters and police, who say they’re among those most likely to need to file workers comp claims.

Plaintiffs attorney Paul Anderson, who worked on the issue for the Florida Justice Association, said Friday that taxpayers will pick up the cost of those who are injured, because if they can’t collect workers comp because they can’t find an attorney to take their case, they’ll get treatment through public hospitals and Medicaid and use other public resources.

“They’ve passed the burden from the insurance industry to the taxpayer,” said Anderson, who said the new law will almost certainly be challenged again in the courts.

“Of course there will be a challenge,” Anderson said. “The bill is unconstitutional. There will be another Emma Murray in some shape or form, and we’ll be back at this drawing board.”

The bill passed easily early on in the session in the House, where it was a top priority of Speaker Larry Cretul, R-Ocala. But it was among the last measures taken up this session by the Senate and passed narrowly, 22-16. Many senators said they eventually voted for the bill because of the economy – fearing that if comp rates went up, people would get laid off.

Supreme Court of Florida Rules for Attorneys

The Florida Supreme Court has ruled in favor of a workers’ compensation claimant requesting higher attorney fees as part of her award, effectively overruling a 2003 law passed to limit attorney fees in such cases.

Insurance industry observers lamented the decision and said it likely would drive up workers’ compensation premiums.

In overruling the state’s 1st District Court of Appeal, the Supreme Court found in Murray v. Mariners Health/ACE USA that awarding attorney fees based strictly on a formula in Florida law limiting the fees to a percentage of the settlement sometimes results in unreasonably low attorney fees. One example is cases where the benefits awarded are small but the legal issues involved are complex, meaning the claimant must hire an experienced attorney to perform substantial work; a percentage-based approach would produce inadequate fees for the attorney, the court said.

Emma Murray was a nursing assistant who was injured while lifting a patient. She suffered a uterine prolapse and eventually had to have a hysterectomy. Mariner Health and ACE USA initially denied benefits, but lost in court. The question of how much the insurer should pay Murray for attorney fees also went to court, centering on revisions to workers’ compensation law that the Florida Legislature passed in 2003. That legislation eliminated hourly attorney fees, requiring attorneys’ compensation be a percentage of the award.

Proponents say that hourly attorney fees are abused by lawyers who drag out cases to increase their pay, driving up systemwide costs. The cost of litigated claims was 40 percent higher in Florida than other states before the 2003 changes, according to the American Insurance Association.

Critics argue that the changes leave some workers’ compensation claimants unable to obtain adequate representation in cases in which the insurer wrongfully denies benefits, because the legal complexities require an experienced attorney, but the percentage-based formula eliminates the possibility of recovering adequate compensation for lawyers.

In the Murray case, the formula dictated that the insurers pay the claimant $684 for attorney fees, which amounts to about $8 per hour. Experts testified that attorneys for such cases in that region typically charge $200 per hour, the court said. Mariners Health and ACE USA paid their attorney a little over $16,000 at a rate of $125 per hour.

The Supreme Court ordered the respondents to pay Murray $16,000 for attorney fees, amounting to a $200-per-hour rate.

The high court did not rule that the 2003 statute was unconstitutional, as Murray alleged. Rather, the court found that the 2003 statute created an ambiguity by simultaneously calling for “reasonable” attorney fees and requiring the use of a formula that in some cases produced an unreasonable result. The court essentially ignored the required formula—because it would render the provision for “reasonable” fees meaningless, it said—in deciding attorney fees in the Murray case.

Firefighter allowed presumption and awarded PTD Benefits

GRAYMOND BUTLER, Appellant,v.CITY OF JACKSONVILLE, Appellee.
Case No. 1D06-5918.
District Court of Appeal of Florida, First District.
Opinion filed May 8, 2008.

The claimant, Graymond Butler, appeals an order of the judge of compensation claims (JCC) denying his claim for permanent total disability (PTD) benefits resulting from his compensable accident of March 12, 1996. The claimant argues that he was entitled to the presumption that his peripheral vascular disease (PVD) was caused by his occupation as a firefighter. The claimant also argues that he was entitled to PTD benefits because his PVD met or equaled a listed impairment. We agree and reverse.
Section 112.18(1), Florida Statutes (1996), also referred to as the “Heart/Lung Bill,” provides in pertinent part:

“Any condition or impairment of health of any Florida municipal . . . firefighter caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence.”

In the instant case, the JCC denied the claim for PTD benefits despite having found that the claimant’s PVD met a listed impairment under the third step of the inquiry. Although not acknowledged by the JCC in his final order, by finding that the claimant met a listed impairment, the JCC should have found the claimant disabled without any further inquiry. The JCC, however, went on to the fourth and fifth steps and found that the claimant was not disabled under the fifth step. This was error. It appears from the final order that the JCC did so because he concluded that the claimant’s PVD did not result from the claimant’s occupation as a firefighter. As discussed previously, the claimant was entitled to the presumption that his PVD was caused by his occupation as a firefighter. Therefore, the JCC erred in denying the claim for PTD benefits.

Illegal Allien allowed to collect TPD and receive Medical Treatment from Physician licensed in Mexico

AMS STAFF LEASING, INC./ANDREWS ROOFING, LLC./ ASPEN ADMINISTRATORS/ PROVIDENCE PROPERTY & CASUALTY INSURANCE COMPANY, Appellants,v.JESUS INFANTE ARREOLA, Appellee.
Case No. 1D06-5727/07-1202. Consolidated Cases
District Court of Appeal of Florida, First District.
Opinion filed January 31, 2008.

In this workers’ compensation appeal, the appellants challenge two orders of the JCC; one awarded the claimant TPD benefits, and the other directed the E/C to authorize claimant’s continuing medical care with an orthopedic physician in Mexico.

The appellants contend that Dr. Granados is not a physician because he is not licensed under chapter 458, or under the laws of any other state in the United States.

We conclude that a foreign physician may render compensable services to workers’ compensation claimants injured in Florida. Thus, the trial court did not err in directing the E/C to authorize continued treatment for claimant by a Mexican physician

The claimant is a 34 year old undocumented alien who had illegally entered the United States from Mexico. In January of 2005, while working in Florida, the claimant was involved in a compensable accident which is the subject of these appeals.

The appellants claim that the definition of “physician” under Chapter 458 does not include doctors living outside the United States who do not meet the same national requirements and qualifications to practice in the USA. According to section 440.13(2)(a), Florida Statutes (2005), an employer must provide medical care “only when such care is given based on a referral by a physician as defined in this chapter.” (Emphasis added). “Physician” is defined in section 440.13(1)(q), as follows:

[A] physician licensed under chapter 458, an osteopathic physician licensed under chapter 459, a chiropractic physician licensed under chapter 460, a podiatric physician licensed under chapter 461, an optometrist licensed under chapter 463, or a dentist licensed under chapter 466, each of whom must be certified by the agency as a health care provider.

Whether the Florida workers’ compensation statutes contemplate treatment by a physician not licensed in any state in the United States appears to be an issue of first impression.

Additionally, according to Florida Administrative Rule 59A-29.002(d), the requirement for certification does not apply to health care providers of medical services outside the State of Florida. That rule provides that health care providers rendering services outside the state of Florida are not required to be certified in order to provide services pursuant to section 440.13, Florida Statutes.

Authorized Doctor cannot transfer treatment to another doctor

GLORIA HAMPTON, Appellant,v.FANTASTIC SAM’S and UNITED SELF INSURED SERVICES, Appellees.
Case No. 1D06-6234 1st DCA
Opinion filed February 25, 2008

Workers’ compensation is entirely a creature of statute. See Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So. 2d 58, 60 (Fla. 4th DCA 2004); see also Farhangi v. Dunkin Donuts, 728 So. 2d 772, 773 (Fla. 1st DCA 1999) (”A JCC has no authority or jurisdiction beyond what is specifically conferred by statute.”). Nothing in chapter 440 gives an authorized treating physician the authority to transfer care to another physician upon his retirement, and generally a claimant may not select a physician of his or her choice without the e/c’s prior authorization. See Marcy v. Charlotte County Sheriff’s Office, 599 So. 2d 1319, 1321 (Fla. 1st DCA 1992). Accordingly, we affirm that portion of the JCC’s order denying payment of Dr. Walker’s and Nurse Hansted’s bills and denying further treatment with them.

Special Hazard rule should be applied for bridge tender who parked in debris sewn parking lot

James KRAMER, Appellant,v.PALM BEACH COUNTY and Palm Beach County/Division of Risk Management, Appellee.
Case No. 1D07-1551.
District Court of Appeal of Florida, First District.
Opinion filed March 31, 2008

Claimant, a bridge tender for Palm Beach County, suffered leg injuries after tripping on a pile of debris left in a county right-of-way as a result of Hurricane Wilma. At his compensability hearing, the JCC heard testimony that Claimant was not parked in the designated bridge tender’s parking area, but rather parked his vehicle in the parking lot of a nearby shopping center. The injury occurred just prior to 6:00 a.m., as Claimant walked from the shopping center to the bridge house to begin his shift.
The JCC found that Claimant’s injury fell within the “going or coming” rule set forth in section 440.092(2), Florida Statutes (2004), and denied compensability. Claimant argues that his injury either fell within the “premises” exception to the rule or was the result of a “special hazard,” which is another exception to the general rule.
We agree with the JCC that Claimant’s injury did not occur on Employer’s premises, and affirm on that ground; however, we agree with Claimant that his injury fits within the special hazard exception.

If an accident is deemed to have occurred off-premises, an employee’s injury is compensable if it is caused by a special hazard on a normal and customary route used by the employee as a means of entry to and exit from the employee’s place of work. See Doctor’s Bus. Serv., Inc. v. Clark, 498 So. 2d 659, 663 (Fla. 1st DCA 1986) (en banc). There are two prongs to the special hazard exception: (1) the presence of a special hazard at a particular off-site location, and (2) close association of the access route to the work premises. Toyota of Pensacola v. Maines, 558 So. 2d 1072, 1075 (Fla. 1st DCA 1990)

Failure to Disclose subsequent fall not grounds for dismissal in 3rd DCA

Francisco Ibarra, Appellant, v. Mario E. Izaguirre and Continucare Corporation, Appellees.
District Court of Appeal of Florida, Third District.
Opinion filed May 21, 2008.

Francisco Ibarra appeals the trial court’s final order dismissing his complaint with prejudice for perjury and perpetration of fraud upon the court. Dismissal with prejudice is unreasonably harsh given the facts of the case, and we therefore reverse the trial court’s order.

A trial court has the authority to grant a motion to dismiss an action upon a finding of fraud by a party. Rios v. Moore, 902 So. 2d 181, 183 (Fla. 3d DCA 2005). However, this power should be used cautiously and sparingly and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrongdoing. Id. Additionally, fraud must be proven by clear and convincing evidence. Howard v. Risch, 959 So. 2d 308, 312 (Fla. 2d DCA 2007).

Clear and convincing evidence of fraud is not present in this case. The slip at the bank never resulted in a formal claim with retained counsel. Ibarra’s answers can reasonably be viewed as a misinterpretation. The alleged inconsistencies can be better handled by impeachment and/or vigorous cross examination. Dismissal with prejudice is unreasonable and an abuse of discretion based on the facts of this case.

This ruling is not a license to lie. In cases where fraud can be proven by clear and convincing evidence, it is clearly within the trial court’s discretion to punish the offending party by dismissal. The facts of this case, however, do not rise to this level. The punishment of dismissal does not fit the crime.

Interrogatory error regarding past symptoms not fraud absent clear and convincing evidence

PATRICIA GRANADOS, Appellant,v.MARIANNE ZEHR AND SONJA S. ZEHR,. Appellee.
Case No. 5D07-515.
District Court of Appeal of Florida, Fifth District.Opinion filed April 18, 2008

The sole issue in this appeal is whether the trial court erred in dismissing with prejudice a personal injury action filed by the plaintiff, Patricia Granados, based on her purported fraud on the court. The fraud was founded on certain responses given by Ms. Granados to discovery propounded by the appellees.

Ms. Granados filed a personal injury action against the appellees for injuries she incurred as a result of an automobile collision. In an answer to an interrogatory Ms. Granados denied that she had been suffering from any physical infirmity, disability or sickness at the time of the accident. In subsequent interrogatories she claimed that as a result of the accident, she injured her low back, neck and left shoulder, and as a result, suffered from headaches, mood swings, nausea, irritability, vision impairment and sensitivity to light.

The appellees filed a motion to dismiss the complaint for fraud upon the court. They based their motion on the fact that the medical records reflected that Ms. Granados had back pain and headaches prior to the accident, although in her answers to interrogatories she denied pre-accident back pain and headaches.

The trial court granted the motion of the appellees to dismiss the complaint with prejudice after concluding that Ms. Granados committed a fraud on the court in connection with the answers to the interrogatories propounded by the defense. We agree with Ms. Granados that the trial court erred in dismissing her case.

Although a trial court has the inherent authority to dismiss actions based on fraud and collusion, the power of dismissal should be used “cautiously and sparingly,” and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing. We must always be mindful of the constitutional guarantee that the courts will be available to every person for redress of injury. See Art. I, § 21, Fla. Const. In recognition of this guarantee the party alleging fraudulent behavior must, accordingly, prove its position by clear and convincing evidence. Distefano v. State Farm Mut. Auto. Ins. Co., 846 So. 2d 572, 574 (Fla. 1st DCA 2003).

Accordingly, we reverse the order dismissing the complaint of Ms. Granados with prejudice, and remand with instructions to reinstate the complaint.

Same-Sex Partners not entitled to Consortium Claims

JUDITH S. BASHAWAY, Appellant,v.CHENEY BROS., INC., a Florida corporation and ALEX E. ROBERTS, Appellees.
Case No. 1D07-1615.
District Court of Appeal of Florida, First District.Opinion filed May 15, 2008

Appellant, Judith Bashaway, maintains a long-term committed relationship with her partner, Melinda Garrison. Melinda suffered injuries in an automobile accident and brought a civil action against appellees, Cheney Brothers, Inc., and Alex Roberts (collectively "Cheney"). Judith joined Melinda as a plaintiff in that suit. Count III of the suit concerned a claim made by Judith for loss of consortium. Cheney moved for dismissal of Judith’s claim, setting out that Judith and Melinda were not legally married at the time of the injury and further that section 741.212, Florida Statutes (2006), prohibits recognition of marriage between persons of the same sex in any event. The circuit court granted the motion and entered final judgment against Judith as to Count III. We affirm because a consortium claim under Florida law is a derivative claim dependent upon legal status that does not exist in the present case.

* The present case, of course, has to do with the rights and liabilities of third persons. Florida law has long recognized that an agreement between unmarried, cohabitating parties, once proven, will be enforced by the courts. See, e.g. Posik v. Layton, 695 So. 2d 759 (Fla. 5th DCA 1997); Crossen v. Feldman, 673 So. 2d 903 (Fla. 2d DCA 1996); Stevens v. Muse, 562 So. 2d 852 (Fla. 4th DCA 1990).

Coca-Coca Enterprises, Inc.

COCA-COLA ENTERPRISES, INC., Appellant,v.AQUILINO J. MONTIEL and KASH N’ KARRY FOOD STORES, INC., Appellees.
Case No. 2D07-4809.
District Court of Appeal of Florida, Second District.Opinion filed May 14, 2008

Coca-Cola Enterprises, Inc. (Coca-Cola), appeals the trial court’s nonfinal order denying a summary judgment motion on its workers’ compensation exclusivity defense. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(v). We reverse.

Aquilino J. Montiel suffered a back injury while unloading Coca-Cola products at a Tampa Kash N’ Karry store. Unquestionably, the injury occurred in the course and scope of Mr. Montiel’s employment. Mr. Montiel’s deposition testimony also establishes that Coca-Cola paid workers’ compensation benefits to him for about twelve weeks.
Mr. Montiel’s injury was work-related. Coca-Cola never contended otherwise. Coca-Cola paid benefits for approximately three months. Indeed, Coca-Cola denied further benefits only when medical evidence indicated that Mr. Montiel’s condition no longer related to his work injury. Had Mr. Montiel thought himself entitled to further benefits, the statute provided a vehicle to seek relief. See § 440.192.

Florida Legislature Passes Law Limiting Workers Compensation Attorneys’ Fees