Now that we’ve had time to digest the shock wave of Castellanos (and the current increase of claims), I can analyze where this decision came from and why the Court decided this way.  [See my initial analysis here.]

Its quite clear going back to Emma Murray, that the Supremes were concerned with the role of the JCC.  Since the 2003 changes, the Legislature has done everything to control what and how the JCC decides claims.  From, dictating the amount of IME’s each party gets, to formulating mental injury claims, to attorney fees, the Legislature intent has been to standardize the JCC’s decisions.

A key to the unconstitutional ruling was the fact that 440.34 created an “irrebuttable presumption” that no matter the calculation when applying the fee schedule, it would always be reasonable.  This of course is a fallacy when looking at the facts of Castellanos: his attorney spent 107 hours winning a very complicated case and ended up getting paid $1.52/hour.

In the Court’s analysis, the Supremes finally ruled that fees are penalties against E/C’s to keep them honest and provided deserved benefits to Claimants.  Further, like Emma Murray, the Supremes felt the best protector of a Claimant’s interest in benefits is the JCC to weigh in on whether an attorney’s fee is reasonable or not.

This is an empowering move on the Court to take power of the allocation of not just fees but benefits too from the Legislature and put it back into the hands of the JCC.  The Lee Engineering standard (founded in Florida Bar Rule 4-1.5) allows the Judge to weigh the reasonableness of a fee.  The JCC still must start with a fee schedule calculation and weight it against the hourly fee.  The Supremes defending this ruling by advocating the Lee Engineering standard also protects E/C’s from excessive fees.  But, the JCC must utilize it.

In the end, the Supremes saw that the Legislature cannot take away the authority of the JCC to review a fee. . . it frustrates the purpose of the W/C scheme.

One could take this theory and apply it across the board to any section of chapter 440 where the 2003 changes limited the involvement of the JCC.   The days of the JCC simply punching buttons are over.

Well they did it.  And, I am back.  After a self-imposed exile, I return to the Workers’ Comp Corner to cover the biggest decision in Florida Workers’ Comp Law since Emma Murray.

It took over 18 months but Supremes overturned the 2009 version of s. 440.34 and declared it unconstitutional.  That decision, Costellanos v. Next Door Co.  can be read here and the entire majority opinion doubles down on the themes from Emma Murray.   In the end, the Court brings back hourly Claimant attorney fees (via the Lee Engineering Standard) and removes the irrebuttable presumption that the mandatory fee schedule is “reasonable.”

The challenge to this thing has been long and coming.  The Castellanos decision itself is long and detailed that weaves the principle of Carrier paid fees as part of the overall fabric of W/C.    Make no mistake, this Court wants the Legislature to know there can be no quick change to 440.34 that will fix this by simply pulling out a marker and crossing out the word “reasonable”.  Per the Court, hourly fees provide access to Florida courts, a constitutional right.

There is so much to digest on this decision, I will have to break it down in more than one post throughout the week.   The consequences of this decision will be the certain increase in claims and Petitions for Benefits for smaller benefits.

Once again, you can read the Castellanos decision here.

I am happy to be back and I look forward to sharing my analysis with you.

Mike

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!

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. (more…)

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. (more…)

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. . . (more…)

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.