The editorial consultants for Dubreuil’s Florida Workers’ Compensation Handbook explain the legal developments over the past year for Florida workers’ compensation practice and the updates to the Handbook. Publisher’s Note: The 2010 edition of the Handbook will be available in September.
While there were no significant changes to the Florida Workers’ Compensation Law during the 2010 legislative session, two minor amendments were passed and signed into law:
1. Senate Bill 1784 amended the final sentence of § 440.105, Fla. Stat. so as to correct an error. Prior to the amendment, the statute referenced the punishments provided in § 775.082, Fla. Stat. , § 775.083, Fla. Stat. and § 775.085, Fla. Stat. Effective June 29, 2010, the reference to § 775.085, Fla. Stat. is replaced with § 775.084, Fla. Stat.
2. House Bill 7089 amended the Public Records and Public Meetings Exemptions provisions contained in § 440.3851, Fla. Stat., so as to remove the scheduled repeal under the Open Government Sunset Review Act of exemptions from public records and public meetings requirements for the Florida Self-Insurers Guaranty Association, Inc., effective October 1, 2010.
Other noteworthy legislative developments this past year were:
PEO legislation signed into law. Senate Bill 2046 amends existing Florida law concerning registration and oversight of state-based professional employer organizations ("PEO"), sometimes referred to as employee leasing companies. Taking effect July 1, 2010, the bill relaxes the standards applied when PEOs are purchased and sold and also when the organizations change their names and/or operating locations. The amended law provides that prior approval of a purchase of a PEO is not required if the "controlling person" of the PEO maintains a controlling person license with the state's Department of Business and Professional Regulation. The law also requires that the Department's Board of Employee Leasing be notified within 30 days of a PEO purchase and that an application for ownership change is deemed approved if not rejected within 90 days of receipt. Finally, the law specifies various penalties to be exacted if a PEO fails to renew its license on a timely basis. A section that called for automatic cancellation of the PEO's license if it failed to renew was removed from the law, however.
Veto of Repackaged Pharmaceutical legislation. Governor Crist vetoed House Bill 5603, which would have limited the amounts of reimbursement physicians could receive for dispensing "repackaged" pharmaceuticals to workers' compensation claimants. While the Governor acknowledged that the measure might have helped control some state risk management expenses related to workers' compensation claims, he indicated there would have likely been numerous, negative "unintended consequences."
Veto of e-filing legislation. Governor Crist also vetoed House Bill 5611 which, among other things, would have required e-filing of many documents associated with the administration of workers' compensation claims. The Governor's office indicated that he was not actually opposed to the proposed e-filing requirements, but that he had vetoed the bill because of other provisions which would have diluted the governor's authority over the Department of Managed Services.
On May 7, 2010, the Florida Department of Financial Services, Division of Worker Compensation (Division), issued an order revising the Special Disability Trust Fund (SDTF) assessment. The assessment rate had been at 4.52% since July 1994. Effective July 1, 2010, the assessment rate is being reduced to 1.46%.
The Division also issued Informational Bulletin DFS-01-2010 on May 7, 2010. The Bulletin advises insurers, self-insurers, and other related stakeholders that the State of Florida’s Chief Financial Officer has issued an "Order Setting Assessment Rate for the Special Disability Trust Fund." The SDTF assessment rate is set by a statutory formula established in § 440.49(9), Fla. Stat. The informational bulletin and assessment rate order are available on the Department's web site.
The Division's Bureau of Monitoring and Audit completed a rewrite of Fla. Admin. Code R. 69L-24, Workers Compensation Insurers' Standards and Practices. The rule became effective January 12, 2010.
Fla. Admin. Code R. 69L-7.602 (Florida Workers' Compensation Medical Services Billing, Filing, and Reporting Rule) became effective on January 12, 2010. The Rule, as amended, reflects changes and updates to forms, reference materials, EDI requirements, and billing instructions for providers and insurers associated with the Rule.
The Division also released a new informational memorandum, DFS-05-2009 – Maximum Workers' Compensation Rate, setting the maximum weekly compensation rate for work-related injuries and illnesses occurring on or after January 1, 2010 at $772.00.
SUPREME COURT DECISIONS
There were no Supreme Court decisions involving the Florida Workers’ Compensation Law during the past year.
SIGNIFICANT OPINIONS OF THE FIRST DCA
There were some significant opinions issued by the First DCA since the last publication of this Handbook. Those opinions are discussed in Parts I and II of the Handbook. Some of those opinions involve the following areas of the law.
1. Cases involving the Statutory Presumption of Compensability afforded Police Officers, Firefighters and Correctional Officers per the provisions of F.S. 112.18(1).
This area of the law continued to attract the attention of the Court during the past year. In Miami-Dade County v. Davis, 26 So.3d 13 (Fla. 1st DCA 2009) the First DCA held it was the pre-employment physical the firefighter took when applying to be a firefighter with the County with whom he was employed at the time of his injury, rather than the physical exam the firefighter had more than 20 years prior when becoming certified as a firefighter, that was the relevant examination for determining whether the statutory presumption of compensability set forth in § 112.18(1), Fla. Stat. applied.
In Carney v. Sarasota County Sheriff’s Office, 26 So. 3d 683 (Fla. 1st DCA 2009) and Martz v. Volusia County Fire Service, 35 Fla. L. Weekly D593 (Fla. 1st DCA 2010) the First DCA made it clear that in order to be entitled to the presumption of compensability afforded by § 112.18(1), Fla. Stat. the heart disease must be disabling, i.e., there must be medical testimony the claimant was incapacitated from performing his job duties because of his heart disease. The disability can be temporary.
In Fuller v. Okaloosa Correctional Institute, 22 So. 3d 803 (Fla. 1st DCA 2009) the First DCA held that if a Claimant meets the requirements of § 112.18(1), Fla. Stat., thereby entitling him or her to the statutory presumption of compensability, the E/C, in order to defeat the presumption, must present medical evidence to establish a nonoccupational cause of the Claimant’s heart condition.
2. Cases involving AWW.
In Rene Stone Work Corporation v. Gonzalez, 25 So. 3d 1272 (Fla. 1st DCA 2010) the First DCA held that a Claimant, who was neither a United States citizen nor resident alien and who did not have a Social Security number, but whose accountant filed a federal tax return and associated schedules showing the wages Claimant earned from his employer had “reported” his wages to the IRS as required by § 440.02(18), Fla. Stat., which is the statute defining wages. The First DCA so ruled, even though the accountant did not file all the correct forms.
3. Cases involving Temporary Partial Disability.
In Pierre v. R & S Assembly, Inc., 35 Fla. L. Weekly D683 (Fla. 1st DCA 2010) the First DCA held a JCC may properly consider a claimant’s work search, or lack thereof, in determining if there is a causal relationship between a Claimant’s compensable injuries and his Temporary Wage Loss. There is no statutory requirement in § 440.15(4), Fla. Stat. (2009), the Temporary Partial Disability statute, that requires a Claimant to undertake a good faith job search in order to obtain temporary partial disability benefits. However, based on this decision, it appears prudent to be sure a Claimant seeking temporary partial disability benefits undertake a good faith job search.
4. Cases involving the Statute of Limitations
In Airey v. Wal-Mart/Sedgwick, 24 So. 3d 1264 (Fla. 1st DCA 2009) the First DCA reiterated prior holdings wherein the Court held that once filed, a petition for benefits remains pending until withdrawn by claimant, or acted upon, or dismissed upon motion. Passage of time does not itself terminate the pendency of a proceeding.
In Pepsi Bottling Group, Inc. v. Underwood, 8 So.3d 1260 (Fla. 1st DCA 2009) the First DCA again held that in order for the Statute of Limitations to be tolled, the E/C must have furnished remedial treatment within 1 year from the last date of treatment or last payment of any indemnity benefit. The Court further held that if the purpose of the exam is solely for evaluation, with no treatment contemplated or authorized, the evaluation does not constitute remedial care for statute of limitations purposes.
5. Cases involving Jurisdiction.
In Parodi v. Florida Contracting Co, Inc., 16 So.3d 958 (Fla. 1st DCA 2009) the First DCA emphasized the importance of advising the JCC of any outstanding, but unmediated Petitions for benefits. § 440.192(9), Fla. Stat. (2009) provides that unless stipulated to by the parties, only claims which have been properly raised in a petition for benefits and have undergone mediation may be considered for adjudication by the JCC. However, if Claimant’s counsel does not advise the JCC of any such outstanding, but unmediated Petitions for Benefits at the time of the final hearing, he may be barred from thereafter pursuing those Petitions for Benefits, based on the doctrine of res judicata.
6. Cases involving Retaliatory Discharge
In Eads v. Traffic Control Devices, Inc., 19 So. 3d 1142 (Fla. 1st DCA 2009) the First DCA reversed the trial Courts entry of summary judgment in favor of the employer on the Claimant’s claim for wrongful discharge in violation of § 440.205., Fla. Stat So long as there is some evidence from which a finder of fact could find the Claimant was terminated for filing a workers compensation claim, summary judgment should not be granted.
The same result was reached by the Third DCA in Ortega v. Engineering Systems Technology, Inc., 35 Fla.L.Weekly D174 (Fla. 3rd DCA 2010).
7. Change of Policy of First DCA Regarding Workers’ Compensation Appeals.
In the last edition of this Handbook, we advised that the First DCA had initiated a new policy that limits the circumstances under which the Court will grant Motions for Extensions of time to file briefs. The First DCA advises the parties to an appeal of these circumstances each time an appeal is filed. This new policy has successfully resulted in Workers’ Compensation Appeals being handled in a more expeditious manner. It does appear that the First DCA is becoming stricter in dealing with failures by counsel to observe time frames and deadlines with sanctions being imposed on litigants which have included dismissal of appeals.
The First DCA has also issued some Administrative Orders in the last year which concern electronic filing and have streamlined procedures. Administrative Order 09-3 was issued November 4, 2009 and superseded the electronic filing requirements the Court issued in 2007. Now all attorneys are required to utilize the First DCA’s secure “eDCA” portal to transmit electronic copies of:
a. All briefs filed pursuant to Florida Rules of Appellate Procedure 9.110, 9.130, 9.140, 9.141, 9.145, 9.146, and 9.180, and all appendices to briefs.
b. All original petitions, responses to petitions, and replies to responses to petitions filed pursuant to Florida Rules of Appellate Procedure 9.100 and 9.141(c) with their appendices.
Once a document has been electronically filed through the eDCA portal, the filer receives automatic confirmation by email. While pro se litigants are encouraged but not required to use electronic filing, failure by an attorney to comply with the Administrative Order may result in briefs or pleadings being stricken and the case dismissed. Alternatively, the brief or pleading may be stricken and the case submitted for review by the Court without benefit of the brief or pleading. The Administrative Order does provide for counsel to file by motion for a hardship exception which must set forth the reason counsel cannot comply.
On March 24, 2010 the First DCA entered Administrative Order 10-1 which required docketing statements and notices of appearance of counsel to be electronically completed and submitted to the Court through “eDCA”. A signed paper copy of the docketing statement is not required or permitted to be filed if an electronic copy is required. Pro se litigants are not required to electronically file their docketing statement but are encouraged to do so. Again, where counsel is unable to comply with the Order, the attorney may file a motion with the court seeking a hardship exception.
For more information on these Administrative Orders, please go to the First District Court of Appeal website at www.1dca.org.
In the past year, in an effort to provide an expeditious method of deciding an appeal that is unmeritorious, the First DCA has also begun utilizing Fla. R. App..P. 9.315(a), see Florida Detroit Diesel v. Nathai, 35 Fla.L. Weekly D414 (Fla. 1st DCA 2010). Rule 9.315(a) authorizes an appellate court to summarily affirm an order of the lower tribunal if “no preliminary basis for reversal has been demonstrated.” Although the Rule has been in effect since 1987, it appears that this year is the first time the First DCA has used this rule in Workers’ Compensation Appeals. Furthermore, although the Court issued a written opinion in Florida Detroit Diesel v. Nathai, the Court has also issued PCA’s based on Rule 9.315(a) without a written opinion.
HANDBOOK CHAPTER REVISIONS
This year’s Dubreuil’s Florida Workers’ Compensation Handbook has undergone some significant changes in a number of chapters.
1. Chapter 1 now includes discussion of why it’s important for claims adjusters to understand how to interpret case law.
2. Chapter 2 has been updated to reflect the increasing body of case law that has been developing since the Florida Supreme Court issued the decision in Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005).
3. Chapter 9 has been updated with recent cases that interpret the fraud statute.
4. Chapter 10 has been updated with case law discussion on how to identify the point where the claim handling activity gives rise to the tort of intentional infliction of emotional distress.
5. Chapter 13 has been updated in the area of non-presumptive permanent total disability. While the current permanent total disability statute is now seven years old, it has only been recently that the First DCA has given some guidance in its decisions regarding how non-presumptive permanent total disability cases should be decided by the Judge of Compensation Claims. It appears these decisions emphasize an increasing importance on vocational evidence.
Dubreuil’s Florida Workers’ Compensation HandbookEditorial Consultants
Robert J. Grace, Jr. Esq. Stiles, Taylor & Grace, P.A. Tampa, Florida
James W. Greer, Executive DirectorWorkers’ Compensation Claims ProfessionalsTampa, Florida
William J. McCabe, Esq. Shepherd, McCabe & CooleyLongwood, Florida
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