In the past year there have been significant developments in case law and legislative amendments to the Florida Workers' Compensation Law.

One of the more significant developments involves the issue of employer/carrier paid attorney fees in a case closely followed by virtually all workers' compensation practitioners.  On October 23, 2008 the Florida Supreme Court, in Murray v. Mariner Health, 994 So. 2d 1051 (Fla. 2008) interpreted the provisions of § 440.34(3), Fla. Stat. (2003), which provided that in certain enumerated instances a Claimant shall be entitled to recover a "reasonable" attorney's fee from a carrier or employer.  Prior decisions of the First DCA held a JCC may approve a fee as reasonable" only when it equals the statutorily established percentage of the value of benefits secured on behalf of the Claimant as set forth in § 440.34(1), Fla. Stat. (2003) [see, e.g., Wood v. Florida Rock Industries, 929 So. 2d 542 (Fla. 1st DCA 2006)].   

The Florida Supreme Court in Murray v. Mariner Health observed no reference was made in subsection (1) to subsection (3); nor did subsection (3) refer to subsection (1).  Rather, subsection (3) authorizes reasonable attorney fees without any mention of the formula.  As such, the Florida Supreme Court concluded a reasonable attorney's fee under § 440.34(3), Fla. Stat. (2003) was to be calculated using the factors of rule 4-1.5(b) of the Rules Regulating the Florida Bar and not the statutory guideline fee provided for in subsection (1).

As a direct and immediate result of Murray, both houses of the Florida Legislature drafted numerous legislative proposals.  On May 29, 2009 Governor Crist signed into law HB 903.  The law will take effect on July 1, 2009.  This law amends § 440.34(3)(c), Fla. Stat. (2003), the section dealing with Employer/Carrier paid attorney fees.  The amendment is clearly in response to the Florida Supreme Court decision in Murray v. Mariner Health.  In a whereas clause, the legislation called the Murray decision "judicial nullification of critical workers' compensation reform…"

The primary change in the amendment is the removal of the word "reasonable" from the provisions of § 440.34(3), Fla. Stat.  The amended provisions of § 440.34(3), Fla. Stat. (2009) now provide that in certain enumerated instances a Claimant "is entitled to recover an attorney's fee in an amount equal to the amount provided for in subsection (1) or subsection (7) from a carrier or employer".  Subsection (7) allows the JCC to approve an alternative attorney's fee not to exceed $1,500.00 only once per accident, based on a maximum hourly rate of $150.00 per hour, for a medical only claim as provided in § 440.34(3)(a), Fla. Stat. (2009).

Of the various proposals that were considered prior to the passage of the amendment to § 440.34(3), Fla. Stat. (2009), the bill most supported by interests representing injured workers was SB 2027.  The Senate Bill provided an attorney's fee payable under § 440.34(3), Fla. Stat. may be increased up to the fee paid by the employer or carrier to their attorneys if it is determined that the employer or carrier engaged in bad faith denial of benefits, unreasonably delayed furnishing benefits that were due and owing, or unreasonably continued or increased the expense of litigation.

Many observers believed that unless business and insurance interest could pass attorney fee reform during the Spring 2009 Legislative Session, that future attempts would likely fall short.  Certainly, Florida's current economic climate, especially in homebuilding combined with the Murray decision and a February 26, 2009 rate increase provided necessary momentum for the passage of HB 903.  On June 3, 2009 Florida Insurance Commissioner Kevin McCarty issued a Final Order rolling back workers' compensation rates to those that became effective at the beginning of 2009.  In a press release issued by Commissioner McCarty, the approved rate decrease will supposedly save Florida employers approximately $172 million in insurance costs, with total projected savings of $610 million.

While most workers' compensation practitioners in Florida have seen a decline in litigation over the past few years, the exact reasons will continue to be debated.

It is the opinion of the authors herein that the amendments to § 440.34, Fla. Stat. (2009) are substantive and will apply prospectively only.  Therefore, it will only apply to accidents occurring on or after July 1, 2009.

It is also the opinion of the authors herein that the amendments to § 440.34, Fla. Stat. (2009) will face constitutional challenges.  The Florida Supreme Court in Murray v. Mariner Health resolved the issue presented in that case on the basis of statutory construction and as such did not reach the constitutional issues raised at that time.  Since there is no ambiguity in the amendment to § 440.34, Fla. Stat. (2009), the constitutional challenges to the statute will most likely be addressed.

Other Supreme Court Decisions

In the past year, there has been one other Supreme Court Opinion involving the Florida Workers' Compensation Law.

In Sanders v. City of Orlando , 997 So. 2d 1089 (Fla. 2008) the Florida Supreme Court held that although a JCC is not required to approve the non-attorney fee portion of a represented claimant's settlement agreement, jurisdiction is still vested in a JCC to set aside or vacate a settlement agreement based upon matters that may be discovered after execution of the settlement agreement.  The First DCA had previously ruled the JCC lacked subject matter jurisdiction to vacate settlement agreements pursuant to the statutory changes made in 2001 to § 440.20(11)(c), Fla. Stat.  Those were the statutory changes that provided a JCC was no longer required to approve the non-attorney portion of a represented claimant's settlement agreement.

Significant Opinions of the First DCA

There were many significant opinions issued by the First DCA since the 2008 Edition of Dubreuil's Florida Workers' Compensation Handbook.  Those opinions are discussed in various portions 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 § 112.18(1), Fla. Stat.

This area of the law continues to attract the attention of the Court.  On March 6, 2009, the First DCA in an En Banc opinion in Punsky v. Clay County Sheriff's Office, 34 F.L.W. D516 (Fla. 1st DCA 2009) discussed in detail the burden of proof of the Claimant and of the Employer/Carrier as it relates to the presumption of compensability afforded by the provisions of § 112.18(1), Fla. Stat.  The First DCA stated it was issuing the opinion En Banc in order to "harmonize our case law."

The First DCA held that once a Claimant establishes his entitlement to the presumption of compensability, it remains with the claimant and is itself sufficient to support an ultimate finding of industrial causation unless overcome by evidence of sufficient weight to satisfy the trier of fact that the tuberculosis, heart disease or hypertension had a non-industrial cause.  It is evidence of non-industrial cause that may be found to rebut the presumption, not the mere existence of risk factors or conditions.

The First DCA held the employer's ability to rebut the presumption is not limited by an obligation to demonstrate a single non-industrial cause in that non-industrial causation may be shown through demonstration of a combination of wholly non-industrial causes.  If such evidence is accepted and credited by the trier of fact, such testimony could be found sufficient as competent and substantial evidence to rebut the statutory presumption and establish non-industrial causation.

The First DCA held it is only when there is evidence supporting the presumption which is accepted as credible by the JCC that clear and convincing evidence would be required to be found the JCC under the Supreme Court decision of Caldwell v. Division of Retirement, 372 So. 2d 438  (Fla. 1979) to rebut the statutory presumption.

The First DCA also certified the following question to the Florida Supreme Court as a question of great public importance

Should Caldwell v. Division Of Retirement, Florida Department of Administration, 372 So. 2d 438 (Fla. 1979) Be Construed to Mean That the Heightened Burden of Clear and Convincing Evidence Is Required to Rebut the "Firefighter's Presumption" In Section 112.18(1) When That Statute Expressly Provides That The Presumption May Be Rebutted by the Lesser Burden of "Competent Evidence"?

At the time of this publication, Punsky v. Clay County Sheriff's Office is pending before the Florida Supreme Court, Case No. SC09-879.

In Talpesh v. Village of Royal Palm Beach, 994 So. 2d 353 (Fla. 1st DCA 2008) the court held Claimant was entitled to the statutory presumption of compensability for his coronary artery disease, even though he had high blood pressure on his pre-employment physical, because the pre-employment physical did reveal any evidence of heart disease.

In Bivens v. City of Lakeland , 993 So. 2d 1100 (Fla. 1st DCA 2008) the court held essential hypertension, in the absence of medical testimony that it is arterial or cardiovascular, is not covered by the presumption of compensability set forth in § 112.18(1), Fla. Stat.

2.  Cases Involving AWW.

In Fast Tract Framing, Inc. v. Caraballo, 994 So. 2d 355 (Fla. 1st DCA 2008) the court held that in order for a Claimant to demonstrate his income constitutes wages, for purposes of calculating average weekly wage, claimant is required to show he reported his wages for federal income tax purposes.  Since the Claimant, in Caraballo, who was paid in cash, did not report any wages for federal income tax purposes, the court held Claimant received no wages as defined in § 440.02(28), Fla. Stat. and thus was not entitled to any Temporary Total Disability benefits.  This case could have considerable impact, since there are a number of undocumented workers in Florida.

In Eaton v. Pinellas County School Board, 995 So. 2d 1075  (Fla. 1st DCA 2008) the court dealt with an AWW issue involving a teacher.  The Claimant had a contract for 10 months, but signed an "option agreement" which spread payment of her wages over 12 months.  The court held the Claimant's AWW should be based on the amount she actually earned in the 13 weeks immediately preceding her accident (which was her total salary calculated over 10 months) as opposed to the amount she was paid in the 13 weeks immediately preceding her accident (which was her total salary calculated over 12 months).

3.  A Case Involving the Notice Requirements of § 440.185(1), Fla. Stat.

In Orange County Public Services v. Ottley, 34 F.L.W. D422  (Fla. 1st DCA 2009) the court held the "reasonable person" doctrine recognized by the Florida Supreme Court in Escarra v. Winn Dixie Stores, 131 So. 2d 483 (Fla. 1961) applied to § 440.185(1), Fla. Stat. as amended in 1994.  Thus, the court upheld the JCC's finding that the claimant timely reported her injury to her employer when it was reported within 30 days of realizing the nature, seriousness and probable compensable character of the injury.

4.  Paralegal Costs.

In Demedrano v. Labor Finders of the Treasure Coast , 34 F.L.W.  D134  (Fla. 1st DCA 2009), the court held paralegal time was required to be included with attorney time.  It could not be considered as a separate cost. 

Following a Motion for Certification, which the court denied, the court in Demedrano v. Labor Finders of the Treasure Coast, 34 F.L.W. D955 (Fla. 1st DCA 2009) explained that although the Rules Regulating the Florida Bar consider paralegal expenses to be a cost, a rule can not alter amend or eliminate a substantive right.

5.  Costs

In Palm Beach County School District v. Ferrer, 990 So. 2d 13 (Fla. 1st DCA 2008), the court held that when a Claimant takes a voluntary dismissal, whether with or without prejudice, the Employer/Carrier is the prevailing party for purposes of recovering costs per the provisions of § 440.34(3), Fla. Stat. (2003).

In Kaloustian v. Tampa Armature Works, Inc., 5 So. 3d 753 (Fla. 1st DCA 2009) the court held § 440.34(3), Fla. Stat. (2003) which allows the taxation of reasonable costs against the now prevailing party, applies prospectively only, to accidents occurring on or after October 1, 2003.  It does not apply to accidents occurring prior to October 1, 2003.

6. Statute of Limitations and Attorney Client Privilege

In a case that may result in claimant counsel being frequently deposed in claims in which a statute of limitations defense is being asserted, the First District held that an attorney's communication of the applicable statute of limitation is mere recitation of statutory language and is therefore not privileged.  In Waffle House v. Scharmen, 981 So. 2d 1266 (Fla. 1st DCA 2008) the Judge of Compensation Claims found that the employer/carrier failed to provide the claimant with notice of his rights under the workers' compensation law and was thus estopped from asserting a statute of limitations defense.  The employer/carrier argued that the Judge of Compensation Claims abused her discretion by not allowing claimant's counsel to be deposed as to whether counsel advised the claimant of the applicable statute of limitations, which would have provided the claimant with actual notice.  The First District, in holding that the sought after testimony regarding the statute of limitations was not privileged, noted that it was "crucial to a correct resolution of the case" and may in fact be dispositive. 

7. Permanent Total Disability

One of the larger legal misconceptions, "temporary" PTD, has been dealt with by the First District and been debunked as a mythological benefit classification in Florida Transport 1982, Inc. v.Quintana, 1 So. 3d 388  (Fla. 1st DCA 2009).  Since the 104-week limitation on temporary benefits became effective in 1994, some injured workers are not at maximum medical improvement before exhausting two years of either temporary total disability or temporary partial disability.  An argument was being increasingly advanced that the often cited Emanuel v. David Piercy Plumbing, 765 So. 2d 761  (Fla. 1st DCA 2000) allowed a Judge of Compensation Claims to make an award of "temporary" PTD.  In Quintana the First District reversed  the Judge of Compensation Claims' award of "temporary" PTD based upon the claimant having received 104 weeks of temporary benefits, but not being at maximum medical improvement from his psychiatric condition and being unable to work.  The First District took care to point out that the award of PTD benefits to the claimant in Emanuel met the statutory requirement for PTD benefits during a one-and-a-half-year time period and was not a "temporary" award.

The above cases reflect an example of the many significant decisions entered by the court since the last publication.

8.  Change of Policy of First DCA Regarding Workers' Compensation Appeals

Since the last edition of this Handbook, the First DCA has created a specialized Workers' Compensation Unit that consists, in part, of the hiring of clerks with specialized knowledge in workers' compensation law.  It is expected that this new unit will, among other things, improve the timeliness of Workers' Compensation appeals.

To assist in achieving this goal, the First DCA has instituted a new policy addressing motions for an extension of time to file briefs. 

Previously, the First DCA would normally grant a 30-day extension on any unopposed motion for an extension of time.  The First DCA now requires, in workers' compensation cases, all motions for an extension of time to specifically state the circumstances justifying an extension.  Motions requesting an extension of time, solely on the basis of a busy schedule, will not be favorably received.  Extensions for reply briefs in workers' compensation cases are now only granted upon showing of an extreme emergency.

This policy went into effect around July 1, 2008.  In the experience of the authors, this policy has improved the timeliness of Workers' Compensation appeals.

© Copyright 2009 Matthew Bender & Co., Inc., a member of the LexisNexis Group .All rights reserved. This article was excerpted from Dubreuil's Florida Workers' Compensation Handbook, 2009 Edition (publication date: August 2009). 

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