July 2008


If there is one aspect in defending Workers’ Compensation claims that many Employer/Carriers misinterpret is video surveillance.  It is a powerful tool in litigation, but should be applied delicately, lest it be barred from trial by a judgefor discovery violations.  Let me cite as an example one of my cases.

Currently, I am working on the defense of a claim where we procured very effective surveillance.  Prior to that, Claimant alleged extreme pain in both arms and even underwent the implantation of a dorsal column stimulator in his neck (a severe procedure to say the least).   He testified at deposition that his pain in his arms is so great he cannot even shake hands or do simple household chores like yard work.

Of course, video surveillance revealed otherwise. . .

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Lately, the First DCA has been doing some housecleaning when it comes to washout settlements; where the parties agree to completely resolve the claim for a lump sum. They confirmed that the JCC has jurisdiction to determine if a settlement agreement exists between parties, and per my recent post, found that a settlement agreement with a final authority contingency clause is not an agreement.

Now, the Court puts into question whether a written General Release–a memorialized settlement agreement–is even required in settling a W/C claim, where the Claimant is represented by an attorney.

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As we all eagerly await the Florida Supreme Court’s decision in the Emma Murray case, the First DCA may have tipped their hand as to how they anticipate the winds of Workers’ Compensation are blowing.

In Brian Lowry v. Central Leasing Management/Zurich, the Court certified the following question to the Supreme Court:

DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY’S FEE TO BE AWARDED A CLAIMANT?

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Back in April, I posted my “Tips on Understanding the Statute of Limitations.”  In it, I mention how important it is for Employers to provide the Florida Department of Financial Services pamphlet (located here) that advises injured workers of their rights and explains the statute of limitations, section 440.19; namely that an injured worker must file a Petition for Benefits within two years after the date of accident and must continue seeing a doctor at least once a year. 

If an Employer does not provide this information, an injured worker can claim ignorance and the statute of limitations will not apply.  Now, the First DCA is confirming what many of us legal types assumed was allowed under the law: an Employer/Carrier can put Claimant’s attorney on the stand to testify that he told his client about the statute of limitations.

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A common issue among litigated W/C claims is when an employee leaves the Employer for a new job or is fired outright.  If the Claimant files for temporary partial disability benefits (under section 440.15), the Employer/Carrier has a right to discover Claimant’s earnings.  His or her earnings, if any, would be an offset to any temporary benefits Claimant is entitled to.  For example, if Claimant is working part time because his injury prevents him from working full time, the Employer/Carrier would be responsible for paying the difference (applying the 440.15 statutory formula). 

One way to obtain Claimant’s earnings information is through an Employee Earnings Report, an affidavit Claimant must fill out or risk having his benefits suspended.  The Employer/Carrier is entitled to this information via Florida Admin Code 69L-3.021.

Yet, it appears that this is the limit to what financial information an Employer/Carrier can make Claimant reveal about themselves. 

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The legal standard of res judicata is difficult to grasp in Workers’ Compensation.  The problem with res judicata (besides the funny name) is that a Claimant can file the same benefit again, even after being denied by the Judge, as long as the benefit is for a different time period. 

For the uninitiated, res judicata is the legal principle that prevents a Claimant from getting yet another day in court after the first lawsuit is concluded by filing the same claim again.  Res judicata is codified in section 440.25(4)(d), “where any benefit due but not raised at final hearing which is ripe, due, or owing at the time of the final hearing is waived.” 

In other words, a Claimant cannot get two bites of the apple. 

However, many adjusters, employers, and (ahem!) even some attorneys believe that this does not apply to permanent total disability claims.  Because the benefits being sought for last for an extended period of time (the rest of their life under the old act, or age 70 under the 2003 amendments), many Employer/Carriers view a win at a PTD trial to be penultimate.  However, the First DCA reaffirmed the res judicata principle and allowed a Claimant, who lost his PTD claim earlier, to file another PTD claim for a different time frame.

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