Spring Forum on Workers’ Compensation,

Spring Forum on Workers’ Compensation, Friday, June 21, 2019

Orlando, FL

By Yvonne Guibert

Session 1: Attorney Fees and Other Costs in the FL Workers’ Compensation System -- both legislatively and practically | Attorney Panel: James McConnaughhay, Steven Rissman, Michael Nebel

Jim McConnaughhay presented a review of the bills filed in 2019 Legislature having direct impact on Florida workers compensation. Here is a summary of legislation (as presented in the seminar manual given to attendees): 

C/S HB 831 --  Electronic Prescribing | Passed | provisions take effect July 1, 2019: This bill amends s. 456.42, F.S., to require health care practitioners who maintain an electronic health records (HER) system or who own, are employed by, or under contract with, a health care facility or practice that maintains such a system, to electronically transmit prescriptions for medicinal drugs upon renewal of the health care practitioner’s license or by July 1, 2021, whichever is earlier. 

There are several exceptions. See exceptions in the bill summary here. Practitioners who do not have access, in their practice or employment, to an HER system may continue to provide written prescriptions to their patients for medicinal drugs. However, standardized counterfeit-proof prescription pads must be used. 

CS/CS/CS/ HB 301 -- Insurance | Passed | provisions take effect July 1, 2019

• Removes the requirement for workers’ compensation applications to be notarized by the applicant and agent
• Reduces the penalty from second degree to third degree felony for intentionally submitting false information on a workers’ compensation application

View the bill summary and all components here. 

CS/CS/ HB 23 -- Telehealth | Passed | provisions take effect July 1, 2019:

This bill establishes a regulatory framework for telehealth (remote provision of health care services through the use of technology) under a new section of law, s. 456.47, E.S. View the bill summary and its components here. 

The bill defines telehealth as the use of technology to provide healthcare services, including, but not limited to, assessment, diagnosis, consultation, treatment, and monitoring of a patient; transfer of medical data; patient and professional health-related education; public health services; and health administration. Definition does not include audio-only telephone calls, email messages, or facsimile transmissions and providers not licensed to practice healthcare in FL cannot open an office in FL. 

CS/CS/SB 426 -- Firefighters | Passed | provisions take effect July 1, 2019

The bill (Chapter 2019-21, L.O.E.) makes firefighters who are diagnosed with certain cancers eligible to receive certain disability or death benefits. Read a summary of the bill including qualifications required to be eligible and types of cancer covered. 

Specifically, as an alternative to pursuing workers’ comp coverage, upon initial diagnosis of certain types of cancer, a firefighter is entitled to benefits including cancer treatment and a one-time cash payout of $25,000. 

SB 1636 amends several provisions in ch. 440.E.S., FL workers’ comp law | DID NOT PASS SB 1636 was designed to amend several provisions in ch. 440, F.S., Florida workers’ compensation law, to achieve savings for the state’s self-insurance pool. Proposed changes include an increase in TTD and TPD benefits from 104 weeks to 260 weeks; codifies Miles v. City of Edgewater Police Dept, 190 So. 3d 171 (Fla 1st DCA 2016); filing of attorney retainer agreements with the OJCC; and several provisions related to attorney fees. Access the proposed bill and bill history here. 

CS/HB 1399 | Adoption of statewide workers’ comp schedules | DID NOT PASS

Requires the adoption of statewide workers’ compensation schedules of maximum reimbursement allowances; extends /timeframes in which employees may receive certain workers’ compensation benefits and carriers must notify treating doctor of certain requirements; provides conditions under which employees may receive permanent impairment benefits; requires good faith effort to resolve dispute. Access the proposed bill and bill history here. 

 Nebel, Rissman & McConnaughhay discussing attorney fees and other costs in Session I, Friday, June 21, 2019.

Next, two prominent Florida workers’ comp cases were reviewed and discussed: 

Castellanos and Miles. Each of these cases from 2016 found elements in the Florida workers’ compensation statute regarding claimant attorney fees unconstitutional. Since these decisions, Florida’s workers’ compensation system has seen a significant increase in litigation, as well as an increase in workers’ compensation insurance rates of about 15%. 

60-second review: Castellanos v. Next Door Company 192 So. 3d 431 (Fla. 2016). The Statute says the fee schedule is mandatory and the court says the fees must be reasonable and adds hourly fees back into the mix. 

The Castellano case / precedent is big in South Florida, Dade / Broward Counties and where the “big advertising law firms” are prevalent. The panel advised to be on the lookout for “gamesmanship” tactics by these types of big advertising firms who represent claimants. 

60-second review: Miles v. City of Edgewater Police Dept. 190 So. 3d 171 (Fla., 1st DCA 2016). This is a First DCA case which allows the claimant to pay a fee to his lawyer and/or the claimant’s union to pay the claimant’s lawyer a fee. It is not a 440.30 scheduled fee but rather a % fee. 

The Miles case / precedent is popular in areas like Tampa, Jacksonville, Sarasota, Orlando and Daytona. 

The goal of employers should be to settle workers’ comp claims quickly and efficiently. If compensable, settle. Employers should carefully determine cases to litigate. Steve Rissman said, “Don’t litigate stupid stuff!” In the Castellano case, the fees in question amounted to just $822.70!

Session 2: What Claimants’ Lawyers Don’t Want You to Know | Attorney Panel: Daniel Jaffe, Elise Phillips, Chris Hanson and Eric Christiansen

I. Know Your Competition

The panel first discussed the importance of knowing your competition. Takeaways include:

1. It’s a competition over money. Castellanos is what everyone wants to talk about -- the case is friendly to claimant attorneys and it levels the playing field. As an adjuster, it is important to pick your battles. Castellanos creates exposure to attorney fees when the adjusting of the claim is not handled properly. It is a good development for everyone. 
2. Panel asked Chris Hanson, the claimant attorney on panel, if Castellanos changed the way he practices. He said, not really. “I have one speed / one way to practice.” Yet some claimant attorneys have a common goal: “make as much money as possible in as little time as possible.” 

II. One time change in doctor:

1. Chris Hanson, claimant attorney said: “My strategy as a claimant lawyer is to try to get claims closed...I work to get benefits to the employee quickly so they can go back to work.”
2. Defense attorney perspective: often the goal of the claimant attorney is to get control of the doctor / select the doctor. Pay attention to requests for change in doctor, particularly around holidays like Thanksgiving, Christmas, industry conferences. You have five (5) calendar days to respond to the request for a one-time change in doctor. When responding to these requests, the response must be clear: name the exact doctor authorized with no ambiguity. 
3. What to do if 5-day window is missed? Once the 5-day window is missed, the claimant is then entitled to select his/her own physician. 
4. Gamesmanship has become a significant factor in the FL workers’ comp system as it relates to selection of doctor. So it is important to pay attention to requests for change of doctor and respond to them timely and accurately, with clear responses. 

III. Settlements

The cases that are the most vexing are the ones that just won’t settle. What is the reason claimant’s DO NOT want to settle? Most often this occurs when the claimant / claimant’s attorney considers the settlement offer to be a “low ball” offer. This can “radicalize” the claimant. 

The panel advised that employers / carriers should come to the table with money and be serious about settling, e.g. be ready to settle the case.

Break time at Spring Forum 2019...attendees mingling with the exhibitors. 

Session 3: Attorney Fees Are Not the Only Cost Drivers: A Look at Troublesome Claims Issues and Recommendations for Handling | Attorney panel: Taysha Carmody, Caitlin Beyl, Laura Buck

This panel reviewed the most litigated issues in workers’ compensation:

1. Medical issues | 440.13, F.S. -- the employer / carrier has a duty to furnish medical treatment that is reasonably related to the claimant’s injury. 
2. Attorney fees | 440.34, F.S. -- attorney’s fees awarded to the claimant’s attorney must meet 20/15/10/5 Rule, and the JCC may perform a five (5) factor test to determine reasonableness of attorney’s fees. 
3. Temporary partial | 440.15, F.S. -- Claimant is entitled to 80% of the difference of 80% of the AWW and the income currently being received, for a period of 260 weeks. 
4. Temporary total | 440.15, F.S. -- claimant is entitled to 66.67% of his / her AWW for up to 260 weeks (absent loss of limb which is up to 80%).
5. Compensability | a carrier may delay its decision regarding compensability during a 120-day investigation period. However, if an injury is not denied timely, it becomes fully compensable. 

Areas discussed that have the potential to significantly impact a claim:

• Physician-dispensed drugs: carrier loses some control when the physician dispenses the drugs. Meds DO NOT need to be FDA-approved; often the medications are the same as over-the-counter drugs. One reason a doctor-dispensed drugs are beneficial is that there may be better compliance from the claimant.
• Compound Medications: these are meant for people who can’t tolerate the usual form of a medication, e.g. sensitivities or allergies. When considering specialty services, there is a 10-day requirement to deny. 
• Repackaged / Relabled Medications: These can often be 3x - 10x the cost of AWP of medications / fee schedule. 

The panel recommends that the employer / carrier have a plan in place for reviewing the physician dispensed / compound / repackaged medications / drugs. For example, establish an agreement with the doctor to authorize / allow up to a certain dollar amount and that authorization is required if that amount is exceeded. DWC 12 -  NOT NEEDED to disallow provider-dispensed meds or to control up to a certain dollar amount. 

Hospital costs were also discussed; in particular a pending case between Zenith Insurance Company v. Dept of Financial Services, Division of Workers’ Compensation, Med. Servs., No. 18-003844 (Fla. DOAH May 8, 2019). The panel discussed that contracts are allowed with providers either on a per diem basis or total contracted basis, i.e. not to exceed total cost amount. When requests are received for treatment, if you don’t respond, then you are in effect agreeing to the treatment. You don’t have to agree / authorize, but you are required to respond. Always respond in writing within the timeline. 

Procedure for determining conflicts in medical services. The best practice to avoid further litigation is to EXPLAIN WHY a bill was not paid. If a bill is not paid, the provider can petition the FL Dept of Financial Services. The carrier then has 30 days to respond. If no response within 30 days, then the carrier waives the right to object. Panel advised to consider the cost of medical treatment...is it worth pushing to the DOAH?

Defenses to Claims for Attorney Fees. The best way to avoid additional attorney fees is to provide timely provision of benefits. 

Session 4: When Workers’ Comp Claims Turn Into Civil Liabilities: The Don’ts in Dealing with Workers’ Compensation Issues | James McConnaughhay, Atty

Attendees of this session received a copy of McConnaughhay’s 2019 Workers’ Compensation Desk Manual -- the premier guide to workers’ compensation laws in Florida. The book is over 1,200 pages including a thorough history of the system and all applicable laws / regulations.

Jim McConnaughhay explained that when dealing with injuries that occur in the workplace, employers and insurance companies are often so concerned about whether or not to pay workers’ comp benefits, that they forget about exposing themselves to potentially more serious liabilities of a civil lawsuit.  

Jim McConnaughhay discussing exposure related to civil liabilities and workers’ comp issues. 

There are two ways in which people involved in accidents receive restitution for their injuries: 

1. Civil justice system. Here, the system is concerned primarily with “who was at fault.” When it is determined that the employer through intentional acts, negligence or other misconduct is at fault, then a jury can award the injured person damages for lost wages, medical bills payable and suffering, mental anguish, and considers loss of estate including awards to spouse, children and other dependents. 
2. Workers’ compensation system, which is a “no-fault” system. It doesn’t matter who was at fault. If the injured employee was injured through the course and scope of their job, then they are entitled to medical expenses and lost wages -- it DOES NOT include damages for pain and suffering, mental anguish and such. 

In Florida, the “exclusive remedy” for workplace injuries is through the workers’ compensation system, i.e. payment of medical bills and a portion of lost wages, regardless of fault. Pain and suffering is not considered an element of damages. 

However, there are instances in the law when an injured worker can receive payments from workers’ compensation and also can sue the employer for civil damages. Jim warned that employers should be aware of the potential “dual liability” where they must pay workers’ compensation and civil liability on a claim which could have a devastating impact on your business. 

These are covered extensively in Jim’s 2019 Desk Manual, pages 379 - 393. Here is a summary of the exceptions to the general rule that IW’s can only receive workers’ comp benefits through the “Exclusive Remedy” provisions of the Florida Workers’ Compensation Act:

1. Employer is Guilty of Sexual Harassment
2. Injury Not Compensable Under Workers’ Comp
3. Employer Acts With Deliberate Intent or Misconduct 
4. Violation of Anti-Discriminatory Statute
5. Where Employer Has Agreed to Indemnify Another
6. Employer is Acting In Capacity Other Than as Employer
7. Discharging or Threatening to Discharge an Employee for Filing a Valid Workers’ Compensation Claim
8. Employer Does Not Have Workers’ Compensation Coverage or Has Not Qualified to be Self-Insured
9. Employer is Estopped from Asserting the Exclusive Remedy Provision of the Workers’ Compensation Act
10. Claim for Spoliation of Evidence
11. The State is the Employer and Assumes Obligations of its Negligent Employees

There are several types of insurance coverages that may afford protection to the employer in civil claims filed by injured workers. One of the newest forms of insurance coverage offered to employers for the “typical” discrimination / wrongful termination claim is Employment Practices Liability Insurance (EPLI). 

Session 5: When a Workers’ Compensation Claim Becomes More Than a Workers’ Compensation Claim: Avoiding Fee Exposure for ADA, Retaliation and Everything in Between | presented by John Daly and Sean Crocker, attorneys

The final session of the day was presented by John Daly and Sean Crocker, attorneys. They reviewed anti-discrimination statutes: 

• Federal: 
• FMLA
• ADA
• Others such as ADEA, Civil Rights Act, etc.

State / Florida Civil Rights Act

They also reviewed different types of discriminatory claims including those on the basis of: race, religion, sex, disability, age and others. And they discussed Retaliation and Whistleblower Claims.