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.

 

Computation of time

The Workers’ Compensation Act is littered with landmines of deadlines that if an Employer/Carrier does not abide by can exponentially increase the value of their claims.   Understanding those deadlines (the 3-day rule, the 5-day rule, the 10-day rule, etc. . .) is imperative.

As strict as those rules are, there is going to be some kind of gamesmanship by Claimant attorneys.  We have all received that 4:55 pm fax on a Friday requesting a one time change.   We’ve all rushed to respond (with a doctor’s name!) before the following Tuesday passes.

However, we should all take a deep breath and realize that the Rules of Civil Procedure afford E/C’s a reasonable calculation of those “strict” deadlines and we have more time than we think.

 

Claimant must “willfuly” ignore order to tax costs for Judge to dismiss his petitions

First, my apologies for the lack of posts.  I’ve been in my ‘Comp Cage working feverishly on another appeal.

Now back to business.   Some time ago I proposed that the only way to enforce an order to tax costs against a Claimant under chapter 440 is to seek a dismissal of the pending petitions.  This is what I wrote in a prior post:

“. . . an order to tax costs against a Claimant can be enforced, albeit in a procedural way.  Until Claimant complies with the order–that is, pay back the E/C its taxable costs–the JCC can dismiss any pending claim or suspend benefits.  There is even case law to back this up.   The statute may not give the E/C a specific right to collect taxable costs, but it does give the JCC powers to freeze the Claimant out of the courthouse.”

My thought process was that through s. 440.24(4), an E/C could still enforce an order to tax costs.   This is still possible, but the First DCA puts a big caveat before such a dismissal can be achieved.

 

Another appellate win!

I am proud to announce a third appellate win under my belt, this time in defense of a favorable trial win for the Employer/Carrier.  Unfortunately, the First DCA did not comment on why they upheld the decision (and also remanded the case back to the Judge for a smaller issue of TPD clarification), but I wanted to use the facts of this case to explore the intricacies of the recent Byczinski decision, apportionment, and major contributing cause.

In particular, most cases that involve a pre-existing condition only have 2 major contributing causes.  In my case, we had multiple causes. . .

 

New House Bill would put more power in hands of physicians who dispense drugs

In a state with the second highest incidence of drug overdose deaths in the nation, I am surprised that this type of legislation is getting steam. 

I’ve written before about physicians prescribing drugs and dispensing themselves.  Chapter 440 has specific language that forbids an E/C from choosing a pharmacy for Claimant.  Per s. 440.13(3)(j), a Claimant “shall be entitled, at all times, to free, full, and absolute choice in the selection of the pharmacy or a pharmacist dispensing and filling prescriptions for medicines under [Chapter 440].” 

Some doctors were taking advantage of this provision by dispensing the drugs themselves and charging E/C’s exorbitant amounts for said drugs.  A trial court ruling seemed to hamper into such schemes (See Bonanno v. Diocese of Venice Epiphany Cathedral Catholic Church.)

Now there is pending legislation that would make it legal for doctors to control the dispensing of drugs. 

Bad idea.

 

What is an Aguilera claim?

Recently, quite a few clients have expressed concerns over Claimant attorneys pursuing Aguilera claims against them.  What is an “Aguilera claim?”  There is a lot of misinformation out there and words like “intentional tort” and bad faith get bandied about.  Usually, it is by Claimant attorneys looking to pressure claims professionals.

 

Claims professionals are worried that they could be sued for bad faith for simply getting an IME or denying a medical benefit they believe is non-compensable.  My hope here is clear the air and objectively inspect what are the potential liabilities (if any)are  for an adjuster.

 

 

A medical questionnaire from doctor is not evidence

Medical questionnaires are a wonderful tool to get a snapshot opinion from an authorized doctor.  They are also cheaper than paying a doctor a witness and records fee (which can exceed $500).  For less than $100 (typically), an E/C can find out MMI, work status, and major contributing cause before it decides it wants to delve into expensive litigation.

It is best to use medical questionnaire after a conference with a doctor to confirm his opinions in the phone call.  If a doctor is advising surgery is necessary, then the E/C knows to raise reserves.  If the litigated issue is major contributing cause and the doctor confirms in the conference and subsequent questionnaire that the compensable accident is the MCC, then at least the E/C can make a decision if it still wants to pursue a possibly futile denial.

But, remember, these questionnaires (usually in the letterhead of a defense counsel) are just tools.  They are not the be all, end all.   If an E/C wants to adopt the questionnaire as its defense, it must follow through with deposing the doctor to confirm his opinions for the record.  These questionnaires are not medical records and therefore are not afforded automatic admission in front of a judge, per s. 440.13(5)(e).

 

If managed care, Claimant gets two “one time” changes in doctors

(Ed. note: I worked on an a separate appeal on this case, albeit with a different date of accident and a different Carrier.)

The number of Carriers contracted into a manage care plan has dwindled over the years.  However, there are still some left and if you are a claims professional or Employer still associated with such a managed care plan, it is important to understand all of the legal “wrinkles” in your plan. 

For one, section 440.134 works hand-in-glove with s. 440.13 and with this most recent case it is important to understand there can be two opportunities for a Claimant to choose a change in doctors. 

 

Statute of Limitations does not run if a claim for attorney fees remains open

Wow. This one is a doozy.

For years, the assumption about the Statute of Limitations (SOL) was “form over substance.”  A Claimant has 2 years from the date of accident and then 1 year from the last date of provided benefits to file a PFB.  If he fails to comply within those time periods, he is barred forever from bringing a claim against the E/C.  This was one of the first blog entries I wrote.  You can read about the basics of SOL here.  (For a video reference, click here.)

If you read s. 440.19 (the SOL statute) not once does it mention that the SOL tolls over a claim for attorney’s fees.  The whole premise is based on giving the E/C and Claimant a ticking clock from the last date of benefits.  Attorneys fees have nothing to do with the SOL.

Except now. . .

 

A pre-existing occupational injury must be compensable to bar apportionment

Since the Staffmark decision, the W/C legal community continued to ask questions about the nature of pre-existing occupational injuries and the ability for Employer/Carrier’s to deny a claim on major contributing cause or take an offset with apportionment.

For example, what if a Judge believes a pre-existing occupational injury is not a contributing cause (MCC) at all and therefore still utilizes the major contributing cause standard?  Or, in this most recent case, what if a Claimant’s pre-existing occupational injury was never accepted or determined to be compensable?  Does apportionment (and MCC) apply or is the E/C out of luck?

More after the jump. . .