August 2010


For many of the changes in Workers’ Compensation, the saying would go “the legislature giveth, the legislature taketh.”  That saying remains true.  . . until the First DCA says otherwise.

In another precedent setting case, the Court finds that, for accidents after the 1994 changes, an implantation of a prosthetic device continuously tolls the Statute of Limitations since it is “remedial treatment.” 

But, what’s that you say?  Didn’t the Legislature specifically, and intentionally, remove prosthetic devices from s. 440.19 back in 1994?  Once again, that remains true. . . until the First DCA says otherwise.

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Not long ago, I wrote about the growing litigation of former NFL players suing for Workers’ Compensation benefits in California as a means to increase their benefits for the alleged effects the sport has on their diagnosed dementia.   Since then, the NFL has issued warnings to its current players about the long term effects of concussions and the symptoms that occur with head injuries.  They should be applauded for the move, but is it enough?

Now, HBO–the cable network–just released a fascinating news piece from its Emmy award winning sports show “Real Sports” about a direct link between concussions in football (and all sports) and Amyotrophic Lateral Sclerosis (ALS), otherwise known as Lou Gehrig’s Disease.  You can view a sample of the video here. (more…)

For a Comp nerd like me, the First DCA oral arguments is my second favorite part of the Convention, right behind Case Law Update.  For many practitioners, adjuster, and employers oral arguments are the best opportunity to see how chapter 440 is interpreted and shaped.

Tallahassee is a far drive for many of us, so whenever the First DCA goes on the road and opens their docket at the Convention, it is a delight.  As is every year, the Convention hosted two cases heard in front of two panels of judges.  I want to focus on the first one, McGraw v. Sauer, Inc., 1D10-791, and what effect it may have on an E/C’s right to seek an IME. (more…)

To classify the FWCI Convention a “marathon” would be an understatement to say the least, but there were three new case discoveries I wanted to share that I learned of during the 3 day seminars. I will go through each one over the course of this week.

But first I want to address the biggest buzz I heard about during the Convention: a very recent lower court case that the Claimant’s bar is pursuing towards the First DCA regarding the constitutionality of the 7/1/09 changes to the attorney fee provision of section 440.34.

The case is Kaufmann v. Community Inclusions and you can read the Final Attorney Fee Order that is going up on appeal here.

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I was going to write that this case is the “big one.”  But, they all seem like big ones these days ( TPD, IME’s).  However, I do not want to diminish this importance of this recent decision as it will have a significant impact on defending claims as well as provide ample ammunition to the Claimant’s attorneys bar’s argument that the 2003 amendments are unconstitutional.

With that little pre-amble out of the way, lets dive into Staffmark v. Merrell. (more…)

When the 2003 changes came into effect, many people looked at the fee provision as the biggest change.  But, in terms of everyday practice in Workers’ Compensation, the change to the IME provision had a profound effect.

Section 440.13(5)(a), was thought to limit each party to just one IME:

“In any dispute concerning overutilization, medical benefits, compensability, or disability under this chapter, the carrier or the employee may select an independent medical examiner.  The employer and employee shall be entitled to only one independent medical examination per accident and not one independent medical examination per medical specialty.”

While the intent of Legislature is clear–one IME per specialty only–the intent of whether a party could have just one IME examination per claim was left in doubt.  Many judges allowed “updated” IME’s upon motion of a party, if it was with the same doctor, especially when it had been years since the last IME.  However, the new(er) language of 440.15 is clear: “entitled to one independent examination per accident”. 

Therefore, many judges would deny updated IME’s for this very reason.  Until now. . . (more…)

In a welcome sign to the 21st Century, the First DCA today announced, effective September 1, the Court will only be accepting electronic filings of briefs, motions, and other pleadings.  After that date, with the exception of pro se parties, the Court will no longer accept any pleadings in hard copy, paper form.   In turn, all future orders, mandates, and opinions will be electronically distributed and no longer forwarded via US Mail.

For a detailed description, you can view the Court’s Administrative Order 10-3 here.