This issue came up recently and I thought I would share it with you:

Claimant has a desk job in a large corporation, iIn the office, during normal working hours, walking between a conference room and her desk, her ankle suddenly gives out and she falls to the carpeted floor.  Her injuries are serious as she fractured the ankle and suffered a possible torn shoulder labrum when her arm braced the fall. 

The question left to me was: is this an accident?  Your answer after the jump.

First, in a case like this, the claims professional should look to see if Claimant has a pre-existing condition that caused this “accident.”  This pre-existing condition, or idiopathic condition, must exist for the E/C to deny compensability.  As we all know, ankles do not just cave in without some external or internal forces acting upon it.  Often, through investigation, you will find Claimant has a history of ankle problems; perhaps a previous fracture or reconstruction or even a history of arthritis.

But, if there is no idiopathic condition, if the ankle just caved in randomly with no trauma, is it an accident?  The answer is yes.  Any exertion connected with the injury (including walking) as a medical fact satisfies the legal test of causation.  It is not necessary that Claimant show an actual slip and fall, or other mishap for this case to qualify as an “accident.”   Therefore, a case like this one would be compensable.

However, even if Claimant has an idiopathic condition of the ankle, the claim could still be compensable if she shows that her workplace conditions present an increased hazard unique to employment.  The courts decide what is an increased hazard on a case by case basis.   A standard carpeted floor might not be an increased hazard, while a bare concrete floor might be or an elevated ramp. 

I know this is a subjective evaluation and not a hard fast rule, so when there is an idiopathic condition the best an E/C can do is to ask if anything about the workplace environment is unusual as compared to Claimant’s home environment. 

This is a quick post but an important one.  It is necessary to understand that despite Claimant completing the standard mileage form she is not automatically entitled to reimbursement.  A Claimant must still prove to the JCC that entitlement is warranted.

In Florida Retail v. Nofal, the Court holds that like all medical benefits, Claimant has the burden to prove entitlement to mileage reimbursement.  This means simply submitting a mileage form is not enough.  Check with your payout and compare Claimant’s alleged doctor’s visits with the visits she actually attended.*

Also, keep in mind: Mileage Reimbursment forms have boilerplate language warning Claimant’s that falsifying mileage information is a third degree felony and I would it warrants suspension of benefits as dictated under section 440.09 and 440.105.

*Please note that there is likely an inherent delay between appointments medical bill payment due to the HCFA process.

Last week I wrote about the Parodi decision which reinforces the self help section of chapter 440.  [see s. 440.13(2)(c)]   The main thrust of my post was that the stakes are now considerably raised with such a decision.

In that case the First DCA found that should Claimant receive unauthorized treatment on his own, and prove that the treatment was compensable and medically necessary, then the doctors providing said treatment could testify in Claimant’s case in chief. 

After talking with a mediator about the Parodi case, he declared that Claimant’s no longer need to use their IME anymore.  They can just go and find a doctor to provide treatment under a letter of protection (LOP).  While I see his point, I don’t think the situation is as dire as that for Employers and Carriers.

Claimant still has to prove compensability via the major contributing cause standard and that the treatment for the injury is medically necessary.  Will simply getting an LOP from an unauthorized doctor work to prove such a case?  Sure.  But, in all cases?  That’s a stretch.

For denials, a Claimant is likely to do better under a LOP–if the doctor is willing to accept her under such conditions–than an IME.  Most IME doctors are known to the courts to have liberal or conservative biases anyway.  A long time treating doctor might have more weight.

But remember, if there already is an authorized treater willing to testify that the accident, injury, or subsequent treatment is not compensable or medically necessary, then that is difficult for a Claimant to overcome; especially if the only doctor to treat her is one who is banking on getting paid by a favorable verdict.

Getting a LOP on every disputable issue is not practical for Claimant nor is it favorable.  I still think E/C’s should be thoroughly investigate a claim before issuing a denial.  The self help provision is just added exposure to consider should Claimant be successful at trial.

A few months ago, I wrote about the ethics involved in settling attorney’s fees with Claimant attorneys.  There is a lot of pressure to close cases, and sometimes a Claimant attorney will want to carve up a settlement to include a large side fee for benefits that were not obtained. 

In Lanza v. Damien Carpentry, I noted the First DCA is going to give the Judges of Compensation Claims latitude to determine whether Carrier paid fees are warranted.  In Lanza, the E/C refused to divide up the settlement so that Claimant attorney would receive a fee above the statutory guidelines for unobtained benefits.  Claimant attorney tried to back out of the settlement, but the JCC and the First DCA enforced the agreement.  At the time, I wrote:

From the ethical standpoint, I have to commend the E/C for refusing to cooperate with this “breakdown” which–let’s be honest–took money away from an injured worker to pay an undeserving fee.  While it is tempting for an E/C to go along with the stipulation just to close a file and move the matter along, it is not ethical and not in the best interests of either party to participate.

Now in Zaldivar v. Chabon, the First DCA sided with a JCC who refused to accept a motion for attorney’s fees when the Claimant attorney refused to provide  supporting evidence that the agreed upon $14,000 fee is within the statutory guidelines for benefits obtained.  After providing numerous opportunities (time extensions and status conferences) the JCC denied the motion.  The First DCA agreed with the JCC and noted the judge has authority to demand such evidence before approving the fee.  The JCC is not a mere rubber stamp for fee approvals.

While ethics is what prevents E/C’s in check over colluding with a Claimant attorney to get an undeserving fee, it now looks like the courts are the ones that will prevent this from happening.  Once again, while it is tempting to throw money at the claim and close our eyes (or hold our noses) over how much of the washout Claimant attorney will get, please note that the JCC will not approve these fees and your settlement could fly out the window. 

Bottomline: If you don’t owe a fee, do not agree to one just to close the file.

I don’t have an update on First DCA cases today, but I did have a recent research project on Professional Employment Organizations (PEO’s) that I thought I would share with you.

For many of us in the industry, PEO’s are an evolutionary step towards spreading risk of Workers’ Compensation claims.  Besides handling payroll for employers, PEO’s provide W/C insurance for many small businesses, offering them lower premiums than they would find individually.   But its important for PEO’s and employers who contract with PEO’s that any change in coverage, even termination of coverage, requires proper notice to employees.

Section 468.525(4)(f) requires PEO’s to notify all employees in writing of any changes–particularly termination–in their relationship with the employee.  When a PEO’s contract expires with an Employer, or if a provision in the contract calls for termination, it is so important for a PEO to provide written notification.

Case in point: Blue Stone Real Estate v. Ward, where the PEO terminated their relationship with the Employer, but only provided written notice to the client, not to Claimant.  The First DCA found this unacceptable and found that under s. 440.10(1)(b) the PEO was the statutory employer of Claimant.  I’ve seen situations like this where a Carrier failed to notice cancellation of a policy and nothing can be worse than finding out you owe benefits to a Claimant where all along you believed there was no coverage.  There are no reserves or preparing for a situation like this. 

Furthermore, the Court emphasized that a PEO must notify each employee, individually.  Merely letting the Employer know in a certified letter is not enough.  For PEO’s, having a system in place to notice employees of any changes in your service is vital towards your existence.  Be sure that this system is adequate in establishing an evidentiary chain of notice.

I’ve written about the 3-day rule and the 5-day rule located in section 440.13, but there is also the self help provision that Employer/Carriers must worry about.  Now the First DCA just reinforced  s. 440.13(2)(c), otherwise known as the self help provision, which allows Claimant to seek medical treatment on her own, if said treatment is later found to be compensable and medically necessary.

What this means is to deny a claim or deny medical benefits carries higher risks.

In Parodi v. Florida Contracting Co., the E/C accepted Claimant’s accident and injuries as compensable.  That is until the E/C discovered Claimant had prior accidents and they suspended all benefits.  Claimant subsequently obtained treatment on his own and filed for reinstatement of benefits as well as reimbursement of the medical bills he incurred and PTD benefits.

The JCC ultimately found that the treatment Claimant obtained on his own was compensable and medically necessary as dictated by s. 440.13(2)(c), which allows Claimant to seek such care should a specific request be made and the E/C be given a reasonable amount of time to respond.

However, the JCC did not allow the testimony of Claimant’s unauthorized doctors to be considered as evidence based on s. 440.13(5)(e) which bars any evidence from a doctor that is not an IME, EMA, or authorized physician.  This ruling makes absolutely no sense.  If a doctor’s treatment is considered by a judge to be compensable and medically necessary, then shouldn’t that doctor’s testimony have to be considered as evidence?  The First DCA agreed and reversed the JCC’s inconsistent ruling.

The reasoning by the Court is important to understand.  The E/C does have a right to choose Claimant’s physicians.  However that right is connected to the obligation an E/C has to provide medical care timely.  If the E/C fails to meet that obligation it surrenders to the Claimant the right to choose physicians (provided the care is compensable and medically necessary).

Please note that the Court does make an exception for fraud cases and major contributing cause defenses.  So, if the E/C feels that Claimant committed fraud or the accident is no longer the major contributing cause it can still deny the claim, and if proven correct the care obtained by Claimant (even if medically necessary) would not be compensable.

What this means for your practice is obvious.  When denying a claim or a specific request for benefits, be sure you have solid evidence to support the denial.  Many times, Claimant will request for a specialist that was never recommended by an authorized treating doctor.  Even though never recommended, it is possible an authorized doctor could find the specialty care to be medically necessary and compensable.  I’ve seen this happen after the denial, during the authorized doctor’s deposition.  At that point, we lost.  The evidence will support Claimant’s unauthorized care. 

Just because the care was not recommended, does not mean it is not compensable.  In essence, be sure to confirm before you deny.

The Sun Sentinel published an interesting article last week on a new whistle blower website, set up by the Chief Financial Officer (and Senate candidate) Alex Sink.  The Department of Financial Services is cracking down on Employers who fail to secure coverage.  Employees can  also check if their Employer has coverage on the DFS site.

Considering the state of the economy and that most Employers are enduring layoffs, the reporting of non-compliance by former employees is probably a motivating factor behind whistle blowers.  If you are an Employer who does not have coverage and has four or more employees, now is a time to get that coverage.  Because hiding it will just make the penalties that much worse than the premiums and now, more than ever, you are likely to get caught.

The penalty for not carrying W/C coverage can be as little as $1,000 or a formula based on the premiums the Employer would have paid, multiplied by 1.5 times.  I’ve seen W/C coverage penalty fines and they can be very expensive to litigate and, ultimately,the paying of the fine.  Most times, the Employer is not disputing the lack of coverage but the size of the fine to limit their costs.

Bottomline: Employers, check with the DFS website and your insurance broker to make sure you have coverage or if you need coverage.  Also, confirm that if you fall under one of the W/C coverage exemptions, you have proper documentation and notice with the State.

This rule isn’t new.  It was around before the 1994 changes to the PTD provision and the First DCA accepted it as the post 2003 standard.   Despite the language of the statute (not mentioning it), the JCC must consider vocational restrictions as well as physical restrictions. 

Simply waiving a 50 mile job search in front of the Judge is not going to cut it.   The First DCA held this rule before, but in Garcia v. Fence Masters, Inc., they really hammer it home.

In this new case, Claimant’s doctor’s found he could work in a sedentary capacity following recovery of his compensable injuries.  However, at trial for PTD benefits, the Employer/Carrier provided a “labor market survey” (job search) and found ten jobs within a 50 mile radius of Claimant’s home that he could physically work.  The rub?  Claimant cannot speak, write, or read English.  Clearly, he is not going to be able to get any of those ten jobs. 

The lower court found for the E/C based on the labor market survey and Claimant’s testimony that he could physically handle the sedentary work restrictions.  The JCC based his opinion that E/C’s vocational expert–who presented the labor market survey–was more credible than Claimant’s vocational expert.   Yet, E/C’s own vocational expert testified that Claimant did not possess any skills that could transfer him to lighter duty work. 

The First DCA naturally reversed.  The bottomline is that bringing a labor market survey is not enough.  As the E/C you have to show this Claimant has vocational skillsthat can help him return to work.  If he cannot speak English, if he has no high school diploma, if he has worked nothing but hard labor his entire life, if he has a lengthy prison record, if he looks slovenly, if he looks bad in suit; all of these kind of factors must be considered when evaluating a PTD claim. 

My recommendation would be to have your attorney depose Claimant and find out what vocational factors to consider when assessing your PTD defense.  Also, Employers should assist their claims professional throughout the course of Claimant’s treatment.  The Employer hired Claimant.  They know right off the bat what vocational skills Claimant possesses.  If, after Claimant is put at MMI with restrictions, the Employer would have a hard time finding work for Claimant, you have a pretty good idea of your chances of success.

On a final note, in Garcia the First DCA rapped the E/C pretty hard on their vocational expert only revealing the labor market survey until two days before trial and a year and a half after the original PTD claim.  They also note the E/C vocational expert was only hired for trial purposes, not to rehabilitate Claimant’s vocational status as is dicated under section 440.491. 

E/C’s take note: if you think a Claimant is going to have trouble finding work after MMI, or the Employer cannot bring Claimant back with the assigned physical restrictions, assign a vocational rehab expert to the claim.  That expert will assist you in assertaining Claimant’s vocational factors.  It is obvious from this case that the First DCA hates when E/C’s only use vocational experts at trial to deny PTD, rather than use such experts to help an injured worker find employment. 

I can understand the facts of Morrow v. Sam’s Club and why the First DCA ruled the way they did for that specific case.  But, I am worried that the decision can open up a can of worms for a host of issues outside of just a recommendation for a specialist.

In Morrow, Claimant suffered an Workers’ Comp accident that the E/C accepted as compensable.   The E/C authorized initial care with a PCP who was unable to determine an objective basis for Claimant’s pain complaints.   The treater eventually recommended Claimant see an orthopedic to determine whether there is any objective relevant medical evidence.  As many of you know, section 440.09(1) does not recognize subjective pain complaints:

The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury. . . arising out of the work performed in the course and the scope of employment.  The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings. . .Pain or other sujective complaints alone, in the absence of objective relevant medical findings, are not compensable.  For purposes pf this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.

The E/C argued this statute applied and that Claimant was not entitled to the orthopedic evaluation.  The JCC agreed, but the First DCA reversed and found that the wrong section applied.  Instead, the JCC should have applied section 440.13(2)(a); the medical necessity provision.   The Court found that the PCP needed the ortho eval to determine what the major contributing cause was of Claimant’s pain complaints.  While I agree with the analysis so far, I wholeheartedly disagree with this ruling:

By its plain meaning, this language [section 440.09] applies to compensability of “pain or other subjective complaints.”

And thus inviting a slew of litigation because the Court just muddied the crystal clear waters of s. 440.09.  The coverage provision of 440 has plain meaning that the “objective relevant medical evidence” standard is to be applied to all forms of benefits, hence the preamble which states “the employer must pay compensation or furnish benefits” and “the injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings.“

This means (the way I read it) the E/C can dispute individual medical benefits or disability even for a compensable claim.  For example, a Claimant has a legitimate slip and fall at work and injures his low back.  If Claimant begins to have pain complaints in his hands, without any objective relevant medical findings to support that his hand pain is related to the compensable accident, the E/C should not have to pay for treatment or subsequent disability for the hand pain.

The First DCA, with Morrow, is saying “no, section 440.09 only applies to the original determination of compensability.”  If the E/C already accepted the claim they cannot use s. 440.09 to parcel out compensability.  Now, I maybe overreacting to this case, but at the very least the decision invites litigation since Claimant attorneys will be more aggressive when E/C’s apply this statute.

A Workers’ Comp claim is more than just the initial picking up of the claim.  Along the way of treatment, there are numerous possibilities of how the claim will go.  Just because an E/C picks up a claim initially should not preclude it from denying tangential treatment or disabilities that are unrelated to the original accident and injury.

Once again, I advise Employers and Carriers to lock down what specific injuries Claimant reports via the initial incident report.  A recorded statement is ideal since it locks down the exact disability you are dealing with.  This is the best way to avoid having to deal with non-related disabilities should Claimant assert them without any objective relevant medical evidence.

Many times I recieve files from adjusters who already provided a list of doctors for Claimant to choose from, be it for a specialist referral by the PCP or a one time change request.  Under the 2003 law, an Employer/Carrier does not have to provide such list to Claimants.  Even under the managed care statute, section 440.134, the only list you need to provide is for the PCP.  If you provide lists to Claimant, that is ok.  Just note you are not required to do so. 

But, a question arises if an adjuster provides a list, is that considered “authorization” even if the adjuster does not set the appointment?  The First DCA answered that question last week. 

In Florida Fun Bike Super Center v. Hunt, the Employer/Carrier appealed the JCC’s decision where he ruled Claimant’s unauthorized psychiatrist became authorized by statute since the E/C did not authorize a change in doctors timely via s. 440.13(2)(f).  However, the adjuster did provide two lists of psychiatrists on two separate occassions to Claimant after she went through the grievance process and filed a PFB.   The Court found that the willingness to offer Claimant a choice rather than simply scheduling an appointment did not represent a failure to meet its statutory obligation to provide the medical treatment requested. 

As I’ve written about before, an E/C has to provide medical care under the 3-day rule (treament recommended by an authorized provider) and the 5-day rule (written request for one-time change of doctors by Claimant).  But, there is also the “reasonable time” rule–s.440.13(2)(c)– which requires Carrier’s to provide treatment requested by Claimant within a reasonable time.  Granted, if the treatment recommended is not medically necessary, the E/C can deny it.  But, the Claimant can pursue the treatment on her own, unauthorized, and sue for the JCC to recognize said treatment is medically necessary.

Alot of savvy Claimant attorneys are sending their Claimant’s to unauthorized specialists and then litigating the right to have these specialists authorized by statute.   If the E/C has no evidence to counter the treatment is not medically necessary or related to the compensable accident, guess what?  It will become authorized.

So, for an adjuster, you have to be careful on what you authorize and what you deny (making sure that what you deny has medical evidence to support the denial).  Yet, if you are nice enough to offer a list to Claimant when she requests medical treatment or a one-time change, you need not worry if you do not initially set the appointment.  You are still meeting your “reasonable time” rule.  That is, if you provide the list in a reasonable amount of time. 

I think this is a reasonable ruling for a real world scenario.  Keep in mind though, you do not have to provide a list for a one time change  within 5 days or a request of treatment.   If you are going to authorize, just pick the doctor you most feel comfortable with and schedule.  That is the purest way to show you met your statutory requirement.