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HIGHLIGHTS

Legislation & Regulatory Action 

Recent legislative & regulatory changes are included 

Rules of Appellate Procedure 

2008 rule changes are included 

Case Law & New Developments 

Significant cases & new discussion are included

LEGISLATION. The legislature made no significant changes to Chapter 440 Florida Statutes affecting claims, but did add amend a few statutes as follows: § 440.3851, Fla. Stat. (Public Records and Meetings Exemptions) stands repealed effective October 2, 2010, unless reenacted by the Legislature. [See Part III of the handbook] § 440.13 Fla. Stat. and § 440.125, Fla. Stat. were amended, effective July 1, 2008, to transfer all regulatory duties, responsibilities, rules and records regarding workers’ compensation medical services from the Agency for Health Care Administration to the Department of Financial Services.  

ADMINISTRATIVE CODE. A complete list of changes can be found in the Table of Amendments near the beginning of the handbook. See also Part VI of the handbook.

APPELLATE PROCEDURE. A complete list of changes to the Florida Rules of Appellate Procedure can be found in the Table of Amendments near the beginning of the handbook. See also Part V of the handbook.  

NEW DEVELOPMENTS. Part I of the handbook includes new, expanded, or revised discussion of the following topics:

• Employment status of students participating in internships. See Part I, Ch. 3, § 3.05[11].
• Employee leasing company’s obligations with regard to terminating workers’ employment; when it’s not done correctly, employment and workers’ compensation coverage continues. See Part I, Ch. 3, § 3.10[5][c].
• Exclusive personal use of employer-provided vehicle. See Part I, Ch. 7, § 7.04[6][ii][A].
• Standard to be used when deciding if a carrier has omitted the tort of intentional infliction of emotional distress. See Part I, Ch. 10, § 10.05[6].
• Penalties due for late payment of a settlement. See Part I, Ch. 12, § 12.04[9][c].
• Grice offset. See Part I, Ch. 12, § 12.07[e].
• PTD at 104 weeks, but before actual MMI has been updated and expanded. See Part I, Ch. 13, § 13.50[6].
• Misconduct in a worker’s job performance. See Part I, Ch. 14, § 14.01[9][e].
• Carrier’s right to impose a lien on carrier-provider handicapped equipped housing. See Part I, Ch. 16, § 16.03 [c] [ii][D].
• Medical mileage reimbursement. See Part I, Ch. 16, § 16.03[3][a][i].
• Discovery. See Part I, Ch. 22, § 22.08.  

CASE SUMMARIES. Part II has been replaced with summaries of noteworthy cases decided during the last year. Some of these noteworthy decisions include:

Fraud; False Security Card. The submission of an invalid social security card to obtain employment is not by itself enough to forfeit workers’ compensation benefits. While it was undisputed that the claimant violated § 440.105(4)(b)(9), Fla. Stat. by submitting an invalid social security card to obtain employment, which is encompassed under “any criminal act” added to 440.09(4)(a), Fla. Stat. in 2003, there is still the requirement that there be evidence that the act or crime was committed for the purpose of obtaining workers’ compensation benefits [see Matrix v. Leopoldo, 2008 Fla. App. LEXIS 3310 (Fla. 1st DCA March 10, 2008), also discussed in Part I, Ch. 9. § 9.07[2]].

Average Weekly Wage; Customary Hours. The 13-week method of determining average weekly wage described in § 440.14(1)(a), Fla. Stat. is to be used if the injured employee worked in the employment in which she or he was working on the date of the accident, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the accident. The statute provides that the term “during substantially the whole of 13 weeks” shall be deemed to mean during not less than 75 percent of the total customary hours of employment within such period considered as a whole. The question here was how are customary hours determined? The court held “customary hours” cannot be determined by assigning as “customary hours” the exact amount of hours claimant worked in the 13 weeks prior to his injury. If that interpretation were correct, there would be no need to write an additional segment into § 440.14(1)(a), Fla. Stat. requiring a JCC to consider whether claimant worked 75% of his “customary hours.” The court opined that this section was likely included to specifically cover individuals like the claimant here—employees who worked varying hours, and whose average hours were significantly more than that which they received in the 13 weeks preceding their accident. On the facts here, it could not be disputed that claimant worked significantly fewer hours in the 13 weeks prior to his injury than he customarily worked for his employer during the 52 weeks before the accident. Therefore, the court held that because the claimant did not work his customary hours, the 13-week method could not be used [see Stubbs v. Bob Dale Construction & Florida Preferred, 2008 Fla. App LEXIS 4238 ( Fla. 1st DCA March 25, 2008)].

Permanent Total Disability Requirements Post October 1, 2003. It is the claimant’s burden to show that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation. The claimant can do so by presenting expert vocational testimony [see Wal-Mart v. Thompson, 1 D07-2661, 2008 Fla. App. LEXIS 1433, Fla. 1st DCA February 6, 2008)].

Treatment Outside. The claimant was an undocumented alien who had illegally entered the from . Following his injury, the claimant returned to his hometown in and sought authorization of a physician in , and the judge of compensation claims awarded such care. The carrier appealed, arguing that the award was improper because the definition of “physician” under Ch. 458, Fla. Stat. does not include doctors living outside the who do not meet the same national requirements and qualifications to practice in the . According to § 440.13(2)(a), Fla. Stat. (2005), an employer must provide medical care “only when such care is given based on a referral by a physician as defined in this chapter.” The court noted that the claimant was no longer living in Florida and that he had already moved to and was residing there at the time he requested the necessary medical treatment. The court found that this distinction is important in light of the case law holding that a claimant is not confined to living in his pre-injury Florida residence. Therefore, the court concluded that a foreign physician may render compensable services to workers’ compensation claimants injured in Florida . Thus, the court held that the trial court did not err in directing the E/C to authorize continued treatment for claimant by a Mexican physician [see AMS Staff Leasing, Inc. v. Arreola, 2008 Fla. App. LEXIS 993 ( Fla. 1st DCA 2008)].

Change of Physician Denied When Claimant Did Not Initiate Treatment Yet With Physician Authorized by E/C. The claimant had sought treatment from a specific pain management physician. The E/C had timely authorized treatment with a different pain management physician and scheduled an appointment on the claimant’s behalf, which the claimant refused to attend. After a hearing, the JCC denied the claimant’s petition, finding that the E/C had no duty to authorize the pain management physician requested by the claimant when the claimant had refused to attend the earlier appointment. The court found that the JCC’s finding that the E/C’s authorization was timely was supported by substantial evidence. The JCC was thus not able to award treatment with the specific physician requested by the claimant, pursuant to § 440.13(2)(c), Fla. Stat. (2005). The claimant could not request a change of treatment under § 440.13(2)(f), Fla. Stat. because the claimant had not yet initiated treatment with the appointed physician [Butler v. Bay Center/Chubb Ins. Co., 947 So. 2d 570 ( Fla. 1st DCA 2006)].

Standing and Jurisdiction. The JCC ordered the E/C to pay psychiatric medical bills, attorney’s fees and costs. The E/C argued that the Agency for Health Care Administration (AHCA) has exclusive jurisdiction over disputes between the E/C and the doctor, and the claimant lacks standing. The 1st DCA agreed withy the E/C and reversed. This was a 1991 date of accident, yet the court held that disputes as to medical reimbursement are procedural. The JCC relied on § 440.192(2)(h), Fla. Stat. in holding that that he had jurisdiction. The court held that this section does not expressly grant the JCC jurisdiction, but provides only basic procedural criteria to present a facially sufficient PFB. § 440.13(11)(c), Fla. Stat. specifically grants AHCA exclusive jurisdiction regarding reimbursement and overutilization. Additionally, since the claimant has no real financial responsibility, the claimant is without standing to pursue reimbursement disputes on behalf of the doctor [see Avalon Ctr. & Unisource Adm’rs v. Hardaway, 967 So. 2d 268 ( Fla. 1st DCA 2007)].

Subrogation; Interest. The Third DCA confirmed that the workers’ compensation carrier is entitled to interest on the benefits it has paid for the period of time after the claimant receives the settlement proceeds from his third-party liability claim until the amount of the carrier’s lien is determined. However, no interest is payable for the period of time that the settlement proceeds remain in the claimant’s attorney’s trust account because interest accruing in that account is payable to the Florida Bar Foundation, Inc., and not to the claimant. Additionally, interest also should not be paid at the statutory rate set forth in § 55.03, Fla. Stat. when the claimant himself did not receive interest at the statutory rate [see Riser v. Hartford Ins. Co., 32 Fla. L. Weekly D2764 ( Fla. 3rd DCA 2007)].

Settlement: Fees and Costs. When a represented claimant enters into a lumpsum settlement with an employer and carrier, § 440.20(11)(c), Fla. Stat. (2006), only requires JCC approval of the attorney’s fees paid by the claimant to the claimant’s attorney. A JCC lacks statutory authority to deny the attorney’s fees based upon costs charged to the claimant [Eshlibi v. Consol. Box Mfg., 926 So. 2d 377 ( Fla. 1st DCA 2007)].

Employer/Carrier’s Taxable Costs. The employer/carrier appealed an order denying the E/C’s Motion to Tax Costs after prevailing in the proceedings before the Judge of Compensation Claims (JCC). The issue before the court was whether the JCC erroneously denied the E/C’s Motion to Tax Costs pursuant to § 440.34(3), Fla. Stat. (2005), where the E/C failed to plead entitlement to such costs. The court held that pleading entitlement to costs is not a prerequisite to collecting costs pursuant to the statute. § 440.34(3), Fla. Stat. provides that costs SHALL be taxed against the losing party (including the claimant). The court held that the JCC does not have discretion in assessment of these reasonable costs [see F.A. Richard & Associates v. Fernandez, 1 D07-2623, 2008 Fla. App. LEXIS 3309, Fla. 1st DCA, March 10, 2008)].

Offset; Children’s Disability Benefits. The employer/carrier appealed an order by the Judge of Compensation Claims that determined the social security dependent benefits received by claimant’s children due to the claimant’s disability could not be included within the E/C’s offset under § 440.20(14), Fla. Stat. (Supp. 1994). As a result of the claimant’s work-related injury, he received permanent total disability benefits from the E/C, in-line-of-duty disability retirement benefits, and social security disability (SSD) benefits. When the claimant’s children began receiving SSD dependent benefits, the E/C recalculated the offset to include the dependent benefits. The appellate court found it undisputed that the claimant’s children received the SSD benefits solely because of the claimant’s disability. Were it not for the dependent benefits, the claimant would be forced to spend a greater portion of his own benefits for his children’s care. Consequently, the SSD dependent benefits constituted benefits from a collateral source that could be included in the employer/workers’ compensation carrier’s offset calculation under § 440.20(14), Fla. Stat. Therefore, the trial court erred in excluding them. The order was reversed, and the case was remanded for further proceedings [see State Marine Patrol v. Clifton, 959 So. 2d 1262 ( Fla. 1st DCA July 6, 2007)].