March 2009


I will never qualify myself as any politico, so take this news for what it is, not what it could be.

The Florida House of Representatives passed through committee a new bill that would remove the word “reasonable” from the section 440.34(3).  This is an obvious attempt to overturn the Emma Murray v. Mariner Health decision, which the Florida Supreme Court statutorily interpreted the use of the word “reasonable” to mean that that a Judge of Compensation Claims can award an hourly fee above the guideline.  (See my post on the decision here.) (more…)

As 2009 rapidly speeds by, the annual Florida Bar W/C Forum is only a month away, April 16-17.  For adjusters, risk managers, and human resource directors, this an excellent event that is not limited to just attorney attendance.    It is also hosted by WCCP, the Workers’ Compensation Claims Professionals organization.

The sessions are given by some of the most knowledgeable professionals in the industry.  Donald Bennett, a partner in my firm who has been practicing Workers’ Comp for over 20 years, is giving the lecture on social security and unemployment compensation offsets, as well as PTD supps.  All three are complicated subjects, but Don is the man at breaking them down and providing simplified solutions.  I encourage you to sit on this session.  Understanding offsets can save you a lot of time and money when handling a claim.

You can find the Forum itinerary as well as hotel and seminar registration information here.

I will be there and I look forward to meeting my readership.

As many of you know, I bravely swung for the fences on my first appeal and oral argument in front of the First DCA, and came up with nothing but air.   The Court per curium affirmed the JCC’s order. 

But, for your amusement, here is video evidence of those arguments.   I kid about the amusement part.  I am very proud of my performance and honored to have had the opportunity of appearing before such a respected court. 

You can view the oral arguments of Yaska L. Martinez, Inc. v. Oscar Chaverri here.

Many E/C’s do not consider ethics when negotiating a washout settlement with a Claimant attorney.  The goal is to get the claim over with, right?  And, the ethics of determining what is a fair fee to Claimant’s attorney is not of the E/C’s concern, right.  Wrong.

When offering a settlement lump sum to Claimant, and when an attorney fee under s. 440.34(3) is owed or alleged, the E/C is putting Claimant’s attorney in an ethical bind.  The E/C is essentially pitting the Claimant against her attorney, forcing the attorney into an ethical quandary: to carve a fee out of Claimant’s settlement monies.

When I negotiate a settlement and a fee is owed to Claimant attorney, I negotiate the two terms seperately.  In fact, almost all Claimant attorneys I deal with insist on negotiating the fee separately from the washout. 

But, when a Claimant attorney seeks a fee to be cut out of a washout settlement, and absolutely no benefits were obtained, or even paid for by the E/C, well that is plain old unethical.  Even if the E/C just wants to get the claim over with.

Last week, the First DCA responds to this last scenario, but not in ethical terms. (more…)

Belly aching.  Exaggerating.  Symptom magnification.  We’ve all heard injured workers complaining more about their pain than the objective findings reveal, especially if the E/C possesses successful surviellance that shows otherwise.  But, is this tantamount to fraud?  

According to the First DCA, no it is not. (more…)

Per a recent post, I just completed my first oral argument on a recent appeal in front of the First DCA.  As I predicted, the Court affirmed the JCC’s opinion, per curium, meaning they disagreed with my argument but did not offer a written opinion as to why.  

Which is. . . ok, I guess. 

While I would love to read their reasoning for the affirmed order, I understand the decison to not write an opinion.  The facts of the case were complex and this appeal was not the best one to address the issue of unauthorized physician testimony, a rule that is firmly established in both statute and case law.

But, I think it is important to use this PCA as an opportunity to discuss the issue of unauthorized physician testimony since it is becoming an increasing issue in more and more of my cases. (more…)