Once again, E/C must show denial of benefits to compel Claimant attendance at IME

The kabuki dance continues!

Once again, the First DCA had the opportunity to review an E/C’s right to compel an IME (without a pending Petition) and once again the Court practices form over substance.

In Bellamy v. Golden Flake Snack Foods, Inc., Claimant sought review of a Judge’s order compelling her to attend E/C’s IME.   There were no pending Petitions so the E/C filed a motion to compel for their IME.

In the motion, the E/C was very specific in its reasons for the IME; namely, they disputed the impairment rating set by the authorized doctors and overall disability.  The Judge granted the motion and the Claimant appealed.

The First DCA relied upon the  Lehoullier v. Gevity case in reversing the order compelling the IME.   The Court found there was no “dispute” between the parties and that the E/C must “create” the dispute:

“To create a dispute concerning medical benefits, an E/C is required to deny a claimant’s request for medical benefits. Simply expressing unilateral speculative concerns over a claimant’s progress with an authorized physician is insufficient.”

I still don’t understand the rationale behind this.  The only reason for a Petition is for the Claimant attorney to secure a future fee.   If the E/C does not like the opinion of the authorized doctors then a “dispute” has occurred.  If Claimant can obtain a pre-Petition IME, why can’t the E/C.

Instead the Court requires the E/C to “create” the dispute.  It seems completely inefficient and counterintuitive to the purpose of chapter 440 to force the E/C to deny the care, have Claimant file a Petition, and then have the E/C file a Response to that Petition.

I’ll end with my quote from my blog post on the Lehoullier case two years ago:

This may be a solution only the Legislature can devise, but I would think this just perpetuates continued litigation.  A dispute can be a ”unilateral” concern.  A dispute is not always a two way street.  And, if the E/C suspects that a doctor is over utilizing  or Claimant is not making appropriate progress, how else is the E/C going to find out?   Cutting of a Claimant just to get a PFB and then issue a denial is not exactly efficient or practical.

Until the Legislature acts, back to the kabuki theatrics!

 

Employer/Carriers must be sure that disputed bills are indeed authorized when asserting AHCA jursidictional defense

I’ve written before about the E/C’s jurisdictional defense to a claim for unpaid bills from authorized providers.  The Claimant has no standing to sue for payment of the bills and the Judge has no jurisdiction to order the payment of the bills.

Only the Agency for Health Care Administration (AHCA) has jurisdiction to settle such disputes.   In fact, sections 440.13(11)(c) and 440.13(3)(g) state that the Claimant does not have responsibility for such bills.   In the past, I’ve written the following on the matter:

“Section 440.13(11)(c) dictates that the Agency for Health Care Administration (“AHCA”) has “exclusive jurisdiction” to decide any matters regarding provider reimbursement.  As long as the Carrier authorizes care with the doctor, the dispute about the doctor’s bills is outside the jurisdiction of the Judges of Compensation Claims.”

However, it is important that when the E/C asserts this defense, it is “buying” the bills and the treatment connected with said bills.

 

E/C’s must prove a pre-existing condition to assert an idiopathic defense

Nothing is as frustrating to an Employer/Carrier as when an employee suffers an accident and cannot explain how the accident took place.   This occurs often in slip and falls where the employee readily admits she does not know (or sometimes remember) how she fell.  She was walking down and a hallway at work one minute.  The next minute, she was on the ground and in pain.

Many E/C’s view these type of injuries as “idiopathic” and deny the claim because the accident could have occurred anywhere (at home or in public) and the fact it occurred at work was just a coincidence.  None of the physical aspects of the job caused the accident.

The problem is this thinking is wrong.  Even the definition of “idiopathic” is misinterpreted by many E/C’s.  All “idiopathic” means (as defined by Webster’s Dictionary)  “arising spontaneously or from an obscure or unknown cause.”   So, when an E/C cries out “idiopathic!” and denies the claim, all they are saying is they have no idea what happened.  And, that has no bearing to proving the claim is non-compensable.

The truth of the matter is that if no one (not even the Claimant) knows how an accident happened, the courts are going to favor the Claimant and award compensability.   And, we have a couple of new cases from the First DCA that proves this point.

 

Please, please, please employers. . . report all accidents to your carriers!

I’ve written before about the dangers of denying an accident took place in the course and scope of employment.  Such a denial allows removes the exclusive remedy defense to an Employer and allows an injured worker to proceed with a tort action. 

While researching for a client, I found a case decided this past March that is based on the same principle.  But, in this case, the Employer never reported the accident to its Carrier after the injured workers reported their injuries.  This is a big no-no in and of itself, but considering the wider consequences an Employer is crazy to even think to take this position.

More after the jump. . .

 

Proud to be Board Certified by the Florida Bar

Happy news here at Workers’ Comp Corner:  I am officially Board Certified by the Florida Bar! 

Board Certification recognizes an attorney’s special knowledge, skills and proficiency in various areas of law and professionalism and ethics in practice.  It is the highest level of evaluation by the Florida Bar of the competency and experience of an attorney. Only 7% of all Florida attorneys are Board Certified.

In my case, I am Board Certified in Workers’ Compensation law.  I had to try at least 25 cases, practice for at least 5 years, receive positive reviews from my legal peers, and be in good standing with the Bar.   The exam itself is a monster: 100 multiple choice questions, with 4 essay questions.  It takes about 8 hours to complete!

What this means for my blog is that you, the reader, get the benefit of my Board Certification and the years of experience and knowledge I acquire throughout my 10 years in practice.  For my clients, you get even more personal attention than that. 

Overall,  I am very proud to be Board Certified by the Florida Bar, a distinction that separates elite attorneys from the rest of the practice.

 

When to drug test

A colleague recently presented a new claim she encountered.  A client’s employee was involved in a trucking accident (that same day).  The accident was bad.  The cab flipped and crushed.  The employee was undergoing emergency surgery.

However concerned the Employer was for the injured worker, there was additional concern that the employee was under the influence.  The Employer is not a drug free workplace as defined by section 440.101 and therefore did not have a testing program in compliance with s. 440.102.

What is an Employer to do in a situation like this?  What rights does it have to drug test an injured worker?   (Answer after the jump.)

 

Employment General Releases are interconnected to W/C claims

Over the last 3-5 years there has been a movement by Carriers to disassociate themselves from preparing Employer General Releases when completing a settlement with a Claimant.   This is motivated by fear as there was significant litigation by sue-happy Claimant’s alleging collusion between their Employer and its W/C Carrier over employment issues (a baseless charge).  Plus, a W/C Carrier does not cover employment claims, those claims are covered by EPLI policy.

Yet, there is no denying the interconnectedness or “yoking” between the Employer’s interests and the Carrier’s interests when it comes to settlement.  After all, when an E/C settles a claim it behooves both co-defendants to insure that Claimant resigns from her position to avoid future W/C exposure.   Plus, an Employer is still exposed to the potential W/C retaliation claim per section 440.205, and the possibility of a claim with the American with Disabilities Act.  Finally, since almost every W/C claim involves an investigation of past and future wages, every Employer is exposed to an overtime or PTO claim which falls under the Fair Labor Standards Act. 

In truth, when E/C’s settle their W/C claims, they should look to trying to resolve every aspect of the employee/employer relationship into one nice package.  Now, the First DCA just released an opinion affirming this policy.