April 2011

Since the Blake v. Merck case last year, the current state of PTD has never been clearer.   Per the First DCA, the modern version of PTD is very similar to the pre-1994 version.  That is, a Claimant has three avenues to prove PTD entitlement:

  1. Claimant is medically PTD; in that she cannot physically engage in sedentary activity within a 50 mile radius of her residence.
  2. Coupled with her permanent physical restrictions, Claimant conducts an exhaustive but unsuccessful job search.
  3. Permanent work restrictions plus vocational factors (education, employment history) prevent Claimant from engaging in sedentary activity within a 50 mile radius of her residence.

The first and third ways are essentially out of Claimant’s hands.  He needs a doctor and/or a vocational expert to prove either/or. 

The second avenue is one of Claimant’s own handling.  But, what constitutes an “exhaustive but unsuccessful” job search and what is the connection with that search to his physical limitations?


Jurisdiction cases are messy and very fact intensive.   Claimants who have out of state accidents offer confusing claims as to whether they are eligible for W/C benefits.   The key is s. 440.09(1)(d) which dictates that if a Claimant is injured outside of this state,  Florida W/C coverage only applies if the contracts of employment was made in Florida.

Of course, with out of state employment, the question arises: what is “made in Florida”?


If you read this blog regularly, you know my mission to determine whether an E/C’s right to tax costs against Claimant is “toothless”.  There have been cases where the First DCA affirmed the right to tax costs, and a case where the Court confirmed that E/C’s cannot seek enforcement of an order to tax costs through rule nisi, like a Claimant can.   An E/C can seek enforcement of an order through a court of appropriate jurisdiction.

My thoughts were that an E/C could seek some level of “enforcement” through s. 440.24(4) which gives the JCC power to dismiss a pending PFB if Claimant does not comply with the Judge’s order.  The statute is clear in its regard.  The question is: would the First DCA enforce it?

The answer is. . . almost?


I’ve written before about watching out for contingent language in settlement and mediation agreements.  They can sink a settlement and invite Claimant’s to back out.  A condition written in your agreement can mean there is no agreement, unless it is binding upon both parties.

Of course, the grandaddy contingency of them all is a settlement with a Medicare Set-Aside (MSA) and the parties agree to wait for approval of the MSA from the Centers for Medicare & Medicaid Services (CMS).  I’ve always viewed settlements solely contingent upon CMS approval as settlements that are not worth the paper they are written on.   As E/C’s we are all afraid CMS could blow up a settlement and demand more money for the MSA, hence the contingency.  However, to have an enforceable settlement, we need language that bounds both parties to the CMS contingency, like giving Claimant and E/C the option to appropriate additional funds to the MSA should CMS demand more money.

Now there is a new case that puts into question whether MSA settlement contingencies are really contingencies at all.


Just a quick development on Kauffman: Claimant is seeking discretionary review to the Florida Supreme Court, as of March 30.  Her attorneys are writing briefs to the Court to convince them to hear the case. 

Keep in mind, the Supremes do not have to hear the case, but the Court does have the discretion to review a decision of a District Court of Appeal that expressly construes a provision of the state or federal consititution.   Once again, the Supremes do not have a duty to hear the case, just the option to hear it.

As you know, in the Kauffman decision, the First DCA denied Claimant’s constitutional arguments based on their previous decisions of the 2003 amendments to the fee provision of Chapter 440. 

I will provide more details as I understand them.

They key to the Statute of Limitations is knowing your dates.  Without the date of accident, the date of last paid benefit, and the date of the filing of Petition of Benefits, an E/C cannot turn a succesful SOL defense.

However, it also important to know the date an unintentional benefit is paid. . . (more…)

Well, I’m on a roll.

I just attended the Florida Bar Workers’ Compensation Forum, and our section President was kind enough to give us a legislative update.  Since Emma Murray and the upheaval to remove “reasonable” from chapter 440, the Legislature has been relative quiet on the W/C front. 

However, our section President informed the Forum that there is a new Senate bill, lobbied by the National Football League, that would stop Claimants from seeking out-of-state W/C benefits; mainly from California.  You can see the Senate Bill, SB 1286, here.   It creates a new statute in Chapter 440, section 440.094, titled “Extraterritorial Reciprocity”.    The intent is to prevent the current rush of out of state claims from former players towards California  courts, were the W/C laws are the most liberal.

Since I’ve written about the NFL before, I think this bill is a wonderful step forward for the League to embrace head trauma injuries into the W/C fold and limit their exposure for future claims.


While the courts still have not found a way for an E/C to collect an Order to Tax Costs, the litigation continues as to whether an E/C has a right to tax costs.  

In the latest case, the First DCA finds that an E/C can recover all “reasonable costs,” not just deposition costs, but also IME costs.  The Court also goes through quite a few other arguments to s. 440.34(3).


A client sent a new federal case to me which reminded me to cover a Third District Court case from 2010.  A pretty big case that I missed.  My apologies.

Why is it so big?  Well, it is important for Employers to know that when you claim that an accident did not arise out of the course and scope of employment (magic words!), you throw away your W/C immunity in tort law.