February 2012


In a state with the second highest incidence of drug overdose deaths in the nation, I am surprised that this type of legislation is getting steam. 

I’ve written before about physicians prescribing drugs and dispensing themselves.  Chapter 440 has specific language that forbids an E/C from choosing a pharmacy for Claimant.  Per s. 440.13(3)(j), a Claimant “shall be entitled, at all times, to free, full, and absolute choice in the selection of the pharmacy or a pharmacist dispensing and filling prescriptions for medicines under [Chapter 440].” 

Some doctors were taking advantage of this provision by dispensing the drugs themselves and charging E/C’s exorbitant amounts for said drugs.  A trial court ruling seemed to hamper into such schemes (See Bonanno v. Diocese of Venice Epiphany Cathedral Catholic Church.)

Now there is pending legislation that would make it legal for doctors to control the dispensing of drugs. 

Bad idea.

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Recently, quite a few clients have expressed concerns over Claimant attorneys pursuing Aguilera claims against them.  What is an “Aguilera claim?”  There is a lot of misinformation out there and words like “intentional tort” and bad faith get bandied about.  Usually, it is by Claimant attorneys looking to pressure claims professionals.
 
Claims professionals are worried that they could be sued for bad faith for simply getting an IME or denying a medical benefit they believe is non-compensable.  My hope here is clear the air and objectively inspect what are the potential liabilities (if any)are  for an adjuster.
 
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Medical questionnaires are a wonderful tool to get a snapshot opinion from an authorized doctor.  They are also cheaper than paying a doctor a witness and records fee (which can exceed $500).  For less than $100 (typically), an E/C can find out MMI, work status, and major contributing cause before it decides it wants to delve into expensive litigation.

It is best to use medical questionnaire after a conference with a doctor to confirm his opinions in the phone call.  If a doctor is advising surgery is necessary, then the E/C knows to raise reserves.  If the litigated issue is major contributing cause and the doctor confirms in the conference and subsequent questionnaire that the compensable accident is the MCC, then at least the E/C can make a decision if it still wants to pursue a possibly futile denial.

But, remember, these questionnaires (usually in the letterhead of a defense counsel) are just tools.  They are not the be all, end all.   If an E/C wants to adopt the questionnaire as its defense, it must follow through with deposing the doctor to confirm his opinions for the record.  These questionnaires are not medical records and therefore are not afforded automatic admission in front of a judge, per s. 440.13(5)(e).

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(Ed. note: I worked on an a separate appeal on this case, albeit with a different date of accident and a different Carrier.)

The number of Carriers contracted into a manage care plan has dwindled over the years.  However, there are still some left and if you are a claims professional or Employer still associated with such a managed care plan, it is important to understand all of the legal “wrinkles” in your plan. 

For one, section 440.134 works hand-in-glove with s. 440.13 and with this most recent case it is important to understand there can be two opportunities for a Claimant to choose a change in doctors.  (more…)

Wow. This one is a doozy.

For years, the assumption about the Statute of Limitations (SOL) was “form over substance.”  A Claimant has 2 years from the date of accident and then 1 year from the last date of provided benefits to file a PFB.  If he fails to comply within those time periods, he is barred forever from bringing a claim against the E/C.  This was one of the first blog entries I wrote.  You can read about the basics of SOL here.  (For a video reference, click here.)

If you read s. 440.19 (the SOL statute) not once does it mention that the SOL tolls over a claim for attorney’s fees.  The whole premise is based on giving the E/C and Claimant a ticking clock from the last date of benefits.  Attorneys fees have nothing to do with the SOL.

Except now. . . (more…)

Since the Staffmark decision, the W/C legal community continued to ask questions about the nature of pre-existing occupational injuries and the ability for Employer/Carrier’s to deny a claim on major contributing cause or take an offset with apportionment.

For example, what if a Judge believes a pre-existing occupational injury is not a contributing cause (MCC) at all and therefore still utilizes the major contributing cause standard?  Or, in this most recent case, what if a Claimant’s pre-existing occupational injury was never accepted or determined to be compensable?  Does apportionment (and MCC) apply or is the E/C out of luck?

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