September 2010

Next Tuesday at 9 am, I present my second oral argument to the First DCA.  The case is about attorney fees (no, not that case!) and what I am asking the Court to do is interpret past, but recent, case law on the subject.

I do not think it is professional to publicly discuss this case before the Court hears our arguments, but I will gladly dissect my performance on this blog when I return later that day.

For those looking for a good laugh at my expense, you can view the oral arguments at the First DCA website.  I anticipate it will be a very lively debate on a subject that everyone these days seems to have a strong opinion about.

Stay tuned.

At last month’s W/C Convention, one of the panelists at the Case Law Update remarked how the First DCA has been putting on educational primers on Chapter 440 all this past year; on TPD, on mental injuries, and apportionment

Now, we have permanent total disability (PTD) on the syllabus and class is in session. . . (more…)

Just last week, I wrote about the First DCA oral arguments, presented at the annual FWCI Convention in Orlando.   Specifically,  I focused on the McGraw oral arguments.

McGraw dealt with an E/C wanting an IME without Claimant filing a PFB.  I predicted (or rather hoped) that the Court would rule that an E/C could seek an IME before the filing of a PFB.  This would solve the wink-wink dance that E/C’s have to do to initiate an IME:

“And there is a kabuki style dance we as E/C’s must perform to get our IME if there is no pending PFB.  The most common–and safe–way to do this is the claims professional sends the file to a peer review doctor (usually out of state) and he determines that there is no medically necessity to the treatment the authorized physician recommends or there is over utilization.  This peer review report is not exactly admissible since it is not an authorized doctor.

From there, the E/C denies treatment based on the peer review report.  Then, Claimant files a PFB for benefits.  And, then the E/C can seek an IME.  It all seems pointless, doesn’t it?”
I hoped for a better procedure, where the E/C can obtain an IME whenever it disagrees with a doctor’s opinion (like Claimants can) thereby preventing the procedure where Claimant must be cut off.   This tactic would reduce litigation, promote settlement, and at the very least put injured workers on notice of any potential disruption in their benefits. 
Now, the First DCA ruled, in a case other than McGraw, that cutting a Claimant off is the only way an E/C can get an IME.