A colleague recently presented a new claim she encountered.  A client’s employee was involved in a trucking accident (that same day).  The accident was bad.  The cab flipped and crushed.  The employee was undergoing emergency surgery.

However concerned the Employer was for the injured worker, there was additional concern that the employee was under the influence.  The Employer is not a drug free workplace as defined by section 440.101 and therefore did not have a testing program in compliance with s. 440.102.

What is an Employer to do in a situation like this?  What rights does it have to drug test an injured worker?   (Answer after the jump.) (more…)

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Over the last 3-5 years there has been a movement by Carriers to disassociate themselves from preparing Employer General Releases when completing a settlement with a Claimant.   This is motivated by fear as there was significant litigation by sue-happy Claimant’s alleging collusion between their Employer and its W/C Carrier over employment issues (a baseless charge).  Plus, a W/C Carrier does not cover employment claims, those claims are covered by EPLI policy.

Yet, there is no denying the interconnectedness or “yoking” between the Employer’s interests and the Carrier’s interests when it comes to settlement.  After all, when an E/C settles a claim it behooves both co-defendants to insure that Claimant resigns from her position to avoid future W/C exposure.   Plus, an Employer is still exposed to the potential W/C retaliation claim per section 440.205, and the possibility of a claim with the American with Disabilities Act.  Finally, since almost every W/C claim involves an investigation of past and future wages, every Employer is exposed to an overtime or PTO claim which falls under the Fair Labor Standards Act. 

In truth, when E/C’s settle their W/C claims, they should look to trying to resolve every aspect of the employee/employer relationship into one nice package.  Now, the First DCA just released an opinion affirming this policy. (more…)

The Workers’ Compensation Act is littered with landmines of deadlines that if an Employer/Carrier does not abide by can exponentially increase the value of their claims.   Understanding those deadlines (the 3-day rule, the 5-day rule, the 10-day rule, etc. . .) is imperative.

As strict as those rules are, there is going to be some kind of gamesmanship by Claimant attorneys.  We have all received that 4:55 pm fax on a Friday requesting a one time change.   We’ve all rushed to respond (with a doctor’s name!) before the following Tuesday passes.

However, we should all take a deep breath and realize that the Rules of Civil Procedure afford E/C’s a reasonable calculation of those “strict” deadlines and we have more time than we think. (more…)

First, my apologies for the lack of posts.  I’ve been in my ‘Comp Cage working feverishly on another appeal.

Now back to business.   Some time ago I proposed that the only way to enforce an order to tax costs against a Claimant under chapter 440 is to seek a dismissal of the pending petitions.  This is what I wrote in a prior post:

“. . . an order to tax costs against a Claimant can be enforced, albeit in a procedural way.  Until Claimant complies with the order–that is, pay back the E/C its taxable costs–the JCC can dismiss any pending claim or suspend benefits.  There is even case law to back this up.   The statute may not give the E/C a specific right to collect taxable costs, but it does give the JCC powers to freeze the Claimant out of the courthouse.”

My thought process was that through s. 440.24(4), an E/C could still enforce an order to tax costs.   This is still possible, but the First DCA puts a big caveat before such a dismissal can be achieved. (more…)

I am proud to announce a third appellate win under my belt, this time in defense of a favorable trial win for the Employer/Carrier.  Unfortunately, the First DCA did not comment on why they upheld the decision (and also remanded the case back to the Judge for a smaller issue of TPD clarification), but I wanted to use the facts of this case to explore the intricacies of the recent Byczinski decision, apportionment, and major contributing cause.

In particular, most cases that involve a pre-existing condition only have 2 major contributing causes.  In my case, we had multiple causes. . .

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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.

(more…)

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.