Disability Law
Florida Workers’ Compensation Law Blog 
News, legislative developments, and court decisions arising under the Florida Workers' Compensation Act.
Post Frequency: 1.1/day Last Entry: August 24, 2009 at 08:40:29 Recent Entries: 290
By David A. McCranie, Esq.
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AIG Escapes Liability for WC Insurance Fraud - For Now
Posted on August 24, 2009A federal judge in Illinois has ruled that NCCI has no standing to sue AIG for its alleged under-reporting of workers' compensation insurance premiums. But, said the judge, he isn't ruling out the possibility of a class action lawsuit against AIG by individual insurers...
Date of 'Last Injurious Exposure' Governs Which Carrier Pays for Occupational Disease
Posted on August 21, 2009Cases involving an "occupational disease" often present thorny issues of compensability and insurance coverage. Fidelity and Guar. Ins. Co. v. Polk County, Case No.2D08-3377, decided by the Second DCA on August 14, illustrates the point well...
NCCI Announces 6.8% Rate Reduction Request
Posted on August 20, 2009The National Council on Compensation Insurance has recommended a 6.8% reduction in the average premium charged to Florida employers for workers' compensation insurance. The reduction would become effective on January 1, 2010. If approved by the Florida Office of Insurance Regulation, the reduction would bring to 63...
Federal Minimum Wage Increase Set for Today
Posted on July 24, 2009As mandated by the Fair Minimum Wage Act of 2007, the federal minimum wage increases today from $6.55 and hour to $7.25 an hour. So at least for the moment, the federal minimum wage is higher than the current Florida minimum wage of $7.21 an hour...
Crist Signs WC Attorney's Fee Bill
Posted on May 29, 2009Governor Crist has signed CS/HB 903. The Orlando Sentinel has the story here. The bill takes effect on July 1, 2009. I have never known an amendment to §440.34 to be given retroactive effect. Thus, the amendment almost certainly will not apply to existing claims, but only to accidents which occur on or after July 1...
Differing Views on Possible Veto of WC Attorney's Fee Bill
Posted on May 18, 2009In this letter reprinted in the May 18 edition of the Palm Beach Post, Bill Herrle, the Florida executive director of the National Federation of Independent Business, urges Governor Crist to sign CS/HB 903. Mr. Herrle rejects as "unfounded" any fears that the bill will make it more difficult for injured workers to obtain representation in workers' compensation cases...
WC Attorney's Fee Bill Presented to Governor
Posted on May 17, 2009The clock is now ticking on any decision by Governor Crist to veto CS/HB 903. The legislature adjourned its session on May 8 and presented the bill to the governor on May 15. Thus, under Art. III, §8(a), Fla. Const., he must veto it within 15 days of the latter date, or by May 30, or it automatically becomes law...
St. Pete Times to Gov. Crist: Veto WC Attorney's Fee Bill
Posted on May 11, 2009In this column, Howard Troxler of the St. Pete Times has recommended that Gov. Crist veto several bills from the just-concluded legislative session, including CS/HB 903.
Governor Crist Noncommittal on WC Attorney's Fee Bill
Posted on May 08, 2009Gov. Crist visited the Clearwater Regional Chamber of Commerce last night and, according to "The Buzz," the political blog of the St. Pete Times, had this exchange with the president of the chamber: 'We'd really like to see you support House bill 903,' Bob Clifford, president of the Clearwater chamber, told Crist, who was accompanied by his wife, Carole...
U.S. Supreme Court Reverses Immigrant Employee's Sentence For Use of False Identification
Posted on May 05, 2009This is a little off-topic, but yesterday the U.S. Supreme Court weighed in on the issue of an employee's use of a fake social security number in obtaining employment in this country . See Flores-Figueroa v. U.S., decided on 5/4/2009...
Senate Recedes; Adopts House Version of WC Attorney's Fee Bill
Posted on May 02, 2009I said in yesterday's post that unless there was some dramatic movement on the last day of the legislative session, the workers' compensation attorney's fee bills were dead. Well, there was some dramatic movement. In the final hours of the session, the Senate receded from CS/CS/SB 2072 and adopted C/S HB 903 by a vote of 22-16, with two members not voting...
Senate Passes "Murray Compromise" Bill; House Refuses to Concur
Posted on May 01, 2009By a vote of 39-0, the Senate yesterday passed CS/CS/SB 2072, the so-called "Murray Compromise" bill. But on motion by Rep. Anitere Flores (R-Miami), the original sponsor of CS/HB 903, the House refused to concur. The bill is now "in messages" with a request by the House for the Senate to recede...
Immigration Status and Drugs Pose Problems for Paralyzed Worker
Posted on April 27, 2009The problem of illegal immigration continues to spill over into the area of workers' compensation law. Take the tragic case of Victor Leon. Victor is an illegal immigrant who, while working for Altec Roofing on a construction project in Palm City, fell off the roof of a three-story building...
Palm Beach Post Endorses "Murray Compromise" Bill
Posted on April 23, 2009The editorial board of the Palm Beach Post has endorsed CS/CS/SB 2072 - the so-called "Murray compromise" bill. Click here to read.
Committee on General Government Appropriations Adds Additional Amendments to CS/SB 2072
Posted on April 22, 2009CS/CS/SB 2072 has now been voted favorably out of the Senate Committee on General Government Appropriations by a vote of 5-0. In addition to the changes to the original bill which I discussed in my April 18 post, the new committee substitute exempts from the restrictions of §440...
Committee Substitute for SB 2072 Posted
Posted on April 18, 2009The Senate Judiciary Committee's substitute for SB 2072 - CS/SB 2072 - has now been posted online by the legislature. As amended, the bill would: Amend §440.20(11)(c) to exempt from the restrictions imposed by §440.34(1) the amount of claimant-paid attorney's fees paid as part of a lump-sum settlement...
Amended SB 2072 Passes Senate Judiciary Committee
Posted on April 16, 2009By a margin of 8-1, the Senate Judiciary Committee voted favorably on SB 2072 yesterday, but with substantial amendments which had been offered by the trial bar. One amendment to the bill (549680) provides that the fee payable under this subsection may be increased up to the fee paid by the employer or carrier to the employer's or carrier's attorneys if it is determined that the employer or carrier engaged in a bad faith denial of benefits, unreasonably delayed furnishing benefits that were due and owing, or unreasonably continued or increased the expense of litigation...
SB 2072 Set For Committee Hearing on April 15
Posted on April 08, 2009The Senate Judiciary Committee is set to consider SB 2072 its meeting on April 15. Still pending before the committee are two proposed amendments to the bill (690702 and 906380) which were filed on March 31. The General Government Appropriations Committee is also set to consider the bill, but there's no word yet on when that will happen.
Attorney's Fee Bill Passes House; Postponed in Senate
Posted on April 02, 2009CS/HB 903 passed in the Florida House of Representatives on March 31 by a vote of 84-35. Several days earlier, the House rejected an amendment to the bill which would have (1) repealed §440.105(3)(c) which makes it unlawful for a claimant's attorney to receive a fee which has not been approved by the judge of compensation claims, (2) amended §440...
Chairman: SB 2072 Will Come Up for a Vote
Posted on April 02, 2009The News Service of Florida reports that Sen. Lee Constantine (R- Altamonte Springs), chairman of the Senate Judiciary Committee, has vowed that SB 2072 will come up for a vote in his committee despite yesterday's postponement. "We are not going to have a filibuster on this thing," said the chairman...
Companion Attorney's Fee Bills Move Forward in House and Senate
Posted on March 25, 2009SB 2072, which is identical to CS/HB 903, passed the Senate Insurance and Banking Committee on March 25 by a vote of 6-3. It now moves to the Senate Judiciary Committee for consideration. An amendment to the bill proposed by Sen. Al Lawson (D-Tallahassee), the Senate Minority Leader, was defeated...
Senate Bill on Attorney's Fees Moves Forward; Palm Beach Post Criticizes
Posted on March 23, 2009SB 2072, which is identical to CS/HB 903, has now been placed on the Senate Banking and Insurance Committee's agenda for Wednesday, March 25. Meanwhile, the Palm Beach Post editorialized against these bills in its Sunday edition.
Committee Substitute for HB 903 Goes to the House Floor
Posted on March 19, 2009The Committee Substitute for HB 903 - CS/HB 903 - is out. The revised bill: (1) deletes the detailed legislative findings of fact contained in the original bill; and (2) requires that claimant's attorney's fees be "equal to" the various percentages of benefits secured set out in the statute instead of, as in the original bill, allowing the fees to be "less than or equal to" those percentages...
WC Insurance Rates Likely to Increase - But Not Just Because of Attorney's Fees
Posted on March 19, 2009Driving the furor over pending legislative attempts to limit the amount of claimant's attorney's fees are concerns over the effects those fees will have on the premiums charged to employers to obtain workers' compensation insurance coverage...
HB 903 Moves Forward With Committe Substitute; Governor Signals Approval
Posted on March 18, 2009HB 903, with a committee substitute, was passed by the House General Government Policy Council on March 17 by a vote of 14-4. The committee substitute means that there will be some changes to the original bill, but as of this post, the revised bill is not yet available on the legislature's website...
HB 903 Moves Forward With Committee Substitute; Governor Signals Approval
Posted on March 18, 2009HB 903, with a committee substitute, was passed by the House General Government Policy Council on March 17 by a vote of 14-4. The committee substitute means that there will be some changes to the original bill, but as of this post, the revised bill is not yet available on the legislature's website...
HB 903 Passes Out of Committee; SB 2280 Referred to Committees
Posted on March 13, 2009HB 903 was passed out of the House Insurance, Business & Financial Affairs Policy Committee by a vote of 19-2. Meanwhile, SB 2280 was referred to the Senate Banking and Insurance Committee, the Senate Judiciary Committee, the Senate Committee on General Government Appropriations, and the Senate Rules Committee...
HB 903 Goes to General Government Policy Council
Posted on March 13, 2009HB 903 has been forwarded to the House General Government Policy Council, which will consider the bill on Tuesday, March 17.
HB 903 Passed but Retained by House Committee
Posted on March 11, 2009HB 903 has been retained by the House Insurance, Business & Financial Affairs Policy Committee. According to a representative of the committee that I spoke with this morning, the bill was passed by a vote of 19-2 yesterday, but a motion to retain the bill was heard and approved...
HB 903 on House Committee Agenda
Posted on March 08, 2009HB 903, which would repeal the requirement that carrier-paid claimant's attorney's fees be "reasonable" and would require instead that they be "less than or equal to" a percentage of benefits secured by the attorney for his client, will be considered by the House Insurance, Business, and Financial Affairs Policy Committee on Tuesday, March 10...
A More Employee-Friendly Attorney's Fee Bill Introduced in Florida Senate
Posted on February 27, 2009McDonald's Insurer Isn't Lovin' It
Posted on February 26, 2009You might have seen this recent report about the McDonald's employee in Arkansas who came to the rescue of a customer as she was being assaulted in the dining area of the restaurant. The assailant shot this Good Samaritan for his efforts, resulting in medical treatment costing over $300,000...
Another Murray Bill Filed; House Speaker Signals His Approval
Posted on February 25, 2009Sen. Garrett S. Richter (R-Naples) has filed SB 2072, another bill which would overturn the result of the Florida Supreme Court's decision in Murray v. Mariner Health. The bill is similar though not identical to HB 903, a bill which I discussed here...
Senate Bill Would Require Public Employers to Comply with OSHA
Posted on February 25, 2009Senator Evelyn Lynn (R-Daytona Beach) has introduced SB 1878 in the Florida Senate. This bill would: Require "public employers" - the state, county and municipal governments, and school districts - to comply with OSHA general industry and construction standards by June 30, 2012...
Another Bill to Limit Attorney's Fees Filed in House
Posted on February 18, 2009In another attempt to reverse the supreme court's ruling in Murray v. Mariner Health, Representative Anitere Flores (R-Miami) has filed HB 903 in the Florida House of Representatives. This bill would: Leave intact the circumstances under which an employer/carrier would be responsible for paying the fees of a successful claimant's attorney under §440...
Still More Benefits Proposed for First Responders: Expanded Rights to Disability Benefits
Posted on February 09, 2009In order to claim "in-line-of-duty" disability benefits from the Florida Retirement System, participants must prove that they cannot render "useful and efficient service as an officer or employee" because of their injuries...
Proposed Legislation Would Expand Death Benefits for Firefighters
Posted on February 07, 2009HB 259 and its identical Senate counterpart, SB 792, would expand the circumstances under which the survivors of Florida firefighters who are killed in the line of duty could collect certain death benefits. Specifically, these bills would amend §112...
Fifth DCA: Evidence Was Sufficient to Go to the Jury in Retaliatory Discharge Claim
Posted on February 06, 2009Pamela Andrews was injured on the job and was later fired. Believing that her employer, Direct Mail Express, had fired her in retaliation for pursuing her workers' compensation claim, she filed suit against them under §440...
Discussions Underway for Murray "Fix"
Posted on February 05, 2009The News Service of Florida reports that discussions are underway about a legislative response to Murray v. Mariner Health. According to the report, the Senate Banking and Insurance Committee took testimony Tuesday from NCCI, a judge of compensation claims, and an actuary at the Office of Insurance Regulation, but didn't take any testimony from any attorneys, insurers, or employers...
HB 311 Withdrawn
Posted on February 04, 2009HB 311 was withdrawn by its sponsor on 2/3/2004. The bill, which I wrote about here, would have repealed the statutory authority for judges of compensation claims to award carrier-paid attorney's fees to successful claimant's attorneys...
DOAH: Claimant Not Entitled to "Rehab TTD"
Posted on February 01, 2009When an injured worker is unable to obtain "suitable gainful employment" because of injuries sustained on the job, the Department of Education, Div. of Vocational Rehabilitation, offers "training and education" to the worker to assist him in doing so...
First DCA: Raising Compensability Defense for the First Time at Hearing Deprives Claimant of Due Process
Posted on January 31, 2009A injured worker's right to receive workers' compensation benefits on account of a compensable accident is a property right which is entitled to procedural due process protection before it can be taken away. That protection includes the right to fair notice and an opportunity to be heard...
Third DCA: Questions of Fact Remain in Employee's Tort Suit Against Employer
Posted on January 31, 2009The courts are still dealing with the aftermath of the Florida Supreme Court's 2007 decision in Bakerman v. The Bombay Co. The court concluded in that case that under the pre-2003 version of §440.11, the plaintiff/employee need not prove that the employer deliberately concealed a dangerous condition from the employee in order to prove that the employer's conduct was "substantially certain" to result in injury or death...
Fourth DCA: No Coverage for Workplace Injuries Under General Liability Policy
Posted on January 31, 2009Does an employer's general liability insurance policy provide coverage for on-the-job injuries sustained by its employees? Not when the policy specifically excludes coverage for "any obligation of the insured under a workers' compensation. ...
Fourth DCA: Circuit Courts Have No Authority to Modify Orders of the JCC Because of a Change in Circumstances
Posted on January 31, 2009In what the court described as a "battle. . . between common sense and . . . procedural limitations," the Fourth DCA affirmed the trial court's grant of the claimant's petition for rule nisi in City of Hollywood v. Benoit, decided on 1/21/2009...
Workers Face Uphill Battle in Occupational Disease Cases
Posted on January 31, 2009The 1/24/2009 edition of the New York Times carried this story about Ed Abney, a 53-year-old former tool and die worker who contracted Parkinson's disease after years of workplace exposure to trichlorethylene, a solvent formerly in widespread use in the United States...
Claimant's Paralegal Fees Not Recoverable as "Costs"
Posted on January 31, 2009When an injured worker who is represented by counsel settles his workers' compensation claim for a lump sum, the JCC must review the attorney's fees charged to the claimant to ensure that they comply with the limited percentages for fees set forth in §440...
Insurance Commissioner Approves 6.4% Rate Increase to Account for Murray
Posted on January 27, 2009The Office of Insurance Regulation announced on 1/26/2009 that it will approve a request for rate increase by NCCI and will increase by an average of 6.4% the rates Florida employers are charged for workers' compensation insurance. Effective 4/1/2009, the increase was attributed to last year's Florida Supreme Court decision in Murray v...
Congress May Investigate Fairness of State Workers' Compensation Laws
Posted on January 24, 2009Representative Joe Baca (D-CA) has introduced H.R. 635, the "National Commission on State Workers' Compensation Laws Act of 2009." Filed in the U.S. House of Representatives on 1/22/2009, the bill proposes to establish a commission to "study and evaluate State workers' compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation for injury or death arising out of or in the course of employment...
House Bill Would Repeal Carrier-Paid Claimant's Attorney's Fees
Posted on January 15, 2009In an apparent attempt to undo last October's Florida Supreme Court decision in Murray v. Mariner Health, Representative Priscilla Taylor (D. West Palm Beach) filed HB 311 in the Florida House of Representatives on 1/13/2009...
Medicare Sues Plaintiff's Attorney for Unreimbursed Medical Expenses
Posted on January 11, 2009Consider these facts: Medicare beneficiary is injured in a fall from a ladder. Medicare expends $22,549.67 in payment of beneficiary's resulting medical bills. Beneficiary hires an attorney who files suit against the ladder retailer...
Boca Raton Firefighters Allege Illness Caused by Uniforms
Posted on January 11, 2009Firefighters in the city of Boca Raton are alleging that their fire-resistant uniform pants are making them sick. According to this story from the 1/10/2009 edition of the Palm Beach Post, over 50 of the firefighters are showing symptoms consistent with heavy metal poisoning allegedly linked to the flame-retardant chemical in the pants.
First DCA to Consider "Heart-Lung" Presumption En Banc
Posted on January 08, 2009I wrote here about the seemingly conflicting opinions from the First District Court of Appeal on what kind of proof a governmental employer must present in order to rebut the statutory presumption that a firefighter's or law enforcement officer's heart disease was caused by his employment...
Second DCA: Employee Not Estopped From Pursuing Tort Action Against Putative Employer
Posted on January 05, 2009Zeeuw v. BFI Waste Systems of North America, Inc., decided by the Second District Court of Appeal on 12/31/2008, illustrates how litigation can arise when the documentation in an employee leasing situation is unclear. Zeeuw had previously worked for BFI as a leased employee of Spartan Staffing, but it was unclear on the date of his accident whether he remained a leased employee or whether he worked directly for BFI...
Fifth DCA: No Pre-Suit Notice Required for Employee's Retaliation Claim Against Public Employer
Posted on January 02, 2009Section 440.205, Fla. Stat., prohibits an employer from retaliating against an employee "by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law," and the Florida Supreme Court has held that an employer's violation of this statute creates a private cause of action against the employer and in favor of the aggrieved employee...
First DCA: 6-Month Limitation on Temporary Compensation for Mental or Nervous Injuries Does Not Apply Where Claimant Is Not Receiving Permanent Impairment Benefits
Posted on December 31, 2008One of the many changes wrought to the Florida Workers' Compensation Law in 2003 was the enactment of §440.093(3), Fla. Stat., which provides: (3) Subject to the payment of permanent benefits under s.440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee's physical injury or injuries...
Two Accidents = 208 Weeks of Temporary Disability Entitlement
Posted on December 17, 2008pa href="http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statuteamp;Search_String=amp;URL=Ch0440/SEC15.HTMamp;Title=-gt;2008-gt;Ch0440-gt;Section%2015#0440.15"Section 440.15(2)(a)/a limits temporary compensation benefits to a maximum of 104 weeks...
Maximum Compensation Rate for 2009 Announced
Posted on December 12, 2008The Florida Division of Workers' Compensation has announced that the maximum compensation rate for accidents occurring in 2009 is $765.00 per week. This represents an increase of 2.55% over last year's maximum comp rate.
Fourth DCA: Horizontal Immunity Provision Does Not Deny Access to Courts
Posted on December 04, 2008I wrote here about Aikens v. Miller Electric, Case No. 1D07-6314, a case where the First DCA affirmed without opinion a Duval County circuit court's rejection of the plaintiff's challenge to the constitutionality of a 2003 amendment to §440...
More Murray Coverage
Posted on December 01, 2008The 11/15/2008 edition of the Florida Bar News has this story on Murray v. Mariner Health. And the Daytona Beach News-Journal has still more coverage in its 11/28/2008 edition.
Voluntary Retirement Does Not Bar Claim For Permanent Total Disability Benefits
Posted on December 01, 2008Facts: Claimant injures knee in 1995. Retires voluntarily in 1998. Never works or even looks for work since then. Total knee replacement in Augst 2005. MMI on 11/14/2005. Claimant files claim for permanent total disability ("PTD") benefits from 11/14/2005 to present and continuing...
Third DCA: OSHA Violations Relevant to Show Employer's Actions Were "Substantially Certain" to Result in Injury or Death
Posted on November 26, 2008Before the 2003 amendments to §440.11, the Florida Supreme Court held that an employer loses its immunity from tort liability if its conduct was "substantially certain" to result in injury or death to its employee. See Turner v...
Paramedics Lose Claim for Overtime Pay
Posted on November 26, 2008A paramedic is not a "firefighter" for purposes of §112.18(1), Fla. Stat., the "Heart-Lung" bill. So said the First District Court of Appeal over twenty years ago in Lansford v. Broward Co. Bd. of Co...
Palm Beach Post Gives Thumbs Up to Murray
Posted on November 24, 2008The Palm Beach Post has this editorial from its 11/24/2008 edition applauding Murray v. Mariner Health.
Murray Results in Proposed 8.9% Rate Increase
Posted on November 15, 2008NCCI has now projected that the Florida Supreme Court's decision in Murray v. Mariner Health will result in an average rate increase of 8.9% for Florida employers. Actually, they project an overall increase of 18.6%, but the full effect of the decision won't be felt for a couple of years...
NCCI to Propose New Rates Following Murray
Posted on November 13, 2008According to this story from the Tampa Bay Business Journal, NCCI is in the process of proposing higher workers' compensation insurance rates for Florida employers in light of the Florida Supreme Court's ruling in Murray v. Mariner Health. Although the 18...
NCCI Projects Projects Proposed Medical Reimbursement Schedule Would Have Little Premium Impact
Posted on November 13, 2008I wrote here about the Division of Workers' Compensation's proposal to amend Fla. Admin. Code R. 69L-7.501 regarding the reimbursement of hospital outpatient services. NCCI has now issued a report in which it projects that the effect of the proposal would be "premium neutral...
NCCI Projects Proposed Medical Reimbursement Schedule Would Have Little Premium Impact
Posted on November 13, 2008I wrote here about the Division of Workers' Compensation's proposal to amend Fla. Admin. Code R. 69L-7.501 regarding the reimbursement of hospital outpatient services. NCCI has now issued a report in which it projects that the effect of the proposal would be "premium neutral...
St. Pete Times Applauds Murray Decision
Posted on November 09, 2008The 11/9/2008 edition of the St. Pete Times contains this editorial about the supreme court's recent decision in Murray v. Mariner Health. While generally lauding the decision as "a sensible ruling," the editor encourages the legislature to revisit the issue of attorney's fees in the upcoming legislative session...
Department of Financial Services Employee Arrested for Alleged Employer Shakedown
Posted on November 07, 2008Who will watch the watchmen? That question crossed my mind when I read this story from the 11/6/2008 edition of the Miami Herald. According to the story, Arturo Vega, an investigator with the Florida Department of Financial Services, was arrested for trying to shake down a Miami employer which had failed to obtain workers' compensation insurance coverage for its employees...
Montana Woman Guilty of Mail and Wire Fraud in Fraudulent WC Scheme
Posted on November 02, 2008Section 440.105(4)(b), Fla. Stat., makes it unlawful for any person knowingly to make any false, incomplete, or misleading statement in support or denial of any benefit under the Florida Workers' Compensation Law. And as a recent case from Montana illustrates, if the U...
Retiree Entitled to Benefits for Disability Caused by "Mental or Nervous Injuries"
Posted on October 31, 2008Participants in the Florida Retirement System (most state, county, and municipal employees) are entitled to a disability retirement benefit known as "in-line-of-duty" disability benefits if, because of a disability suffered in the line of duty, they are "prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee...
Insurance Commissioner Announces Another Rate Decrease, But. . .
Posted on October 30, 2008Florida Insurance Commissioner Kevin McCarty has announced yet another decrease in workers' compensation rates for Florida employers in 2009. The average rate will decrease by 18.6%, bringing the average cumulative decreases in rates to 60...
Another Ruling on Florida Minimum Wage for Non-Professional Attendant Care
Posted on October 29, 2008JCC Castiello in Miami has ruled once again that notwithstanding the express language of §440.13(2)(b)1, Fla. Stat., non-professional attendant care should be compensated using the Florida minimum wage, not the federal minimum wage. See Devito v...
Sixth Circuit Court of Appeals: RICO Claims Against Employer, Servicing Agent, and Treating Physician May Proceed
Posted on October 28, 2008I wrote here about Brown, et al. v. Cassens Transport, Inc., a decision from the Sixth Circuit Court of Appeals which was originally issued on 7/10/2007. Brown and his co-plaintiffs had brought a claim against Cassens Transport, Inc...
Verdict Against Disability Insurer for Requiring Recipients to Apply for Social Security Disability
Posted on October 28, 2008Section 440.15(1)(f)2.b, Fla. Stat., provides in part that an employer/carrier is not required to make any payment of permanent total disability benefits to an injured worker "if the employee refuses to apply for or cooperate with the employer or carrier in applying for social security disability benefits...
More Reaction to Murray
Posted on October 27, 2008Here's Insurance Commissioner Kevin McCarty's 10/24/2008 press release on Murray v. Mariner Health. And here's what Associated Industries of Florida has to say.
More on Emma Murray
Posted on October 24, 2008Yesterday's decision in Murray v. Mariner Health has generated a fair amount of press coverage and reaction from various industry groups. You can read coverage from the St. Pete Times here, from the Palm Beach Post here, and from the Insurance Journal here...
Florida Supreme Court Invalidates 2003 Amendment to Attorney's Fee Statute
Posted on October 23, 2008In what is surely the most widely followed workers' compensation case in several years, the Florida Supreme Court has invalidated the 2003 amendment to §440.34. The amendment purported to limit the attorney's fees which could be paid to prevailing claimants to a strict percentage of the benefits secured through the attorney's efforts...
Carrier Waived Statute of Limitations Defense by Failure to Appear at 1997 Hearing
Posted on October 23, 2008Batista v. Publix Supermarkets, Inc., decided on 10/22/2008, involved a statute of limitations question. Under the pre-1994 version of the statute, a workers' compensation carrier waives any statute of limitations defense to which it might otherwise be entitled if it fails to assert that defense "at the first hearing of such claim in which all parties in interest are given reasonable notice and opportunity to be heard...
Application of "Competent Substantial Evidence" Standard Harmless Error
Posted on October 23, 2008In Branham v. TMG Staffing Services, a case which I wrote about here, the First DCA reversed an order in which the JCC had found that there was "no competent substantial evidence" that the claimant had ever received from the carrier the informational brochure required by §440...
E/C Not Entitled to Lien on Claimant's Legal Malpractice Claim
Posted on October 23, 2008An employee in Florida retains his common law right to sue a third party tortfeasor for injuries sustained in an accident even though the employee receives workers' compensation benefits from his employer for those same injuries. Section 440...
Employer/Landowner Not Subject to Employee's Premises Liability Claim
Posted on October 23, 2008Can an employee sue his employer in tort, and thus avoid the "exclusive remedy" provision of §440.11, Fla. Stat., where the employer is also a landowner and the suit is predicated upon the employer/landowner's failure to keep the premises in a reasonably safe condition? No, said the Third District Court of Appeal in Elizabeth Arden, Inc...
"Essential Hypertension" Not Covered by "Heart-Lung" Bill; No Compensability Where No Disability
Posted on October 23, 2008In Bivens v. City of Lakeland, decided on 10/2/2008, the First DCA addressed two issues concerning the proper construction of §112.18(1) and decided both of them in favor of the employer and against the firefighter. First, the court said that a firefighter's essential hypertension — high blood pressure with no known cause — is not a condition to which the presumption of compensability afforded by the statute was intended to apply...
Independent Medical Examiner Can Be an Authorized Treating Physician
Posted on October 23, 2008The JCC did not err in ordering the E/C to provide continuing medical care to the claimant through a physician which the claimant had previously designated as his "independent medical examiner." That was the First DCA's holding in Protocol Communications, Inc...
No Interest Awardable on Claimant's Costs
Posted on October 23, 2008Although the JCC has the authority to award costs against the E/C when the claimant prevails in a workers' compensation proceeding, he has no authority to award interest on those costs. So said the First DCA in Torres v. Costco Wholesale Corp...
Claim for Past Due Medical Bills Was a "Reimbursement Dispute"
Posted on October 23, 2008Although I failed to discuss it earlier, one of the First DCA's more interesting decisions from 2007 was the case of Avalon Center v. Hardaway. In that case, the court held that pursuant to §440.13(11)(c), Fla...
Claimant Entitled to "One-Time Change of Physician" Even After Treating Physician Discharges Claimant From His Care
Posted on October 23, 2008Section 440.13(2)(f), Fla. Stat., entitles the claimant to a "one-time-change-of-physician" upon his written request "during the course of treatment" for an on-the-job accident. Does such a written request come "during the course of treatment" when it is made after the initial treating physician has discharged the claimant from his care and opined that "[n]o further treatment is indicated for this patient"? Yes, said the First District Court of Appeal in Providence Property and Casualty v...
School Board Employee Not Guilty of Fraud; Entitled to Job Reinstatement
Posted on October 23, 2008As I noted here and here, the Escambia County School Board fired its employee, Jackie Fowler, on the grounds that Ms. Fowler had committed workers' compensation fraud, even after an administrative law judge ("ALJ") had concluded that she was not guilty of the offense...
"One Time Change of Physician", "Expert Medical Advisors", and "Major Contributing Cause"
Posted on October 23, 2008When the claimant's treating physician opines that the claimant's industrial accident is no longer the "major contributing cause" of her ongoing medical problems, is the claimant entitled to a "one-time-change-of-physician" in order to obtain a contrary medical opinion? Yes, said the First DCA in Dawson v...
JCC May Not Rely Upon Lay Testimony in Deciding "Major Contributing Cause"
Posted on October 23, 2008One of the changes wrought by the 2003 amendments to the Florida Workers' Compensation Law concerned the employee's burden of proving that his on-the-job accident is the "major contributing cause" of a given medical condition and the need for treatment of that condition...
First DCA: Hypertension Does Not Equal Heart Disease
Posted on October 23, 2008Florida firefighers, law enforcement officers, and corrections officers who develop heart disease are entitled to a presumption that the disease was caused by their employment if, at the commencement of their employment, they underwent a physical examination which failed to reveal any evidence of such a condition...
Liberty Mutual Sued for Intentional Infliction of Emotional Distress
Posted on September 29, 2008Over the weekend, the St. Pete Times ran this heartrending story about James Dolan, a 34-year-old Radio Shack employee who was shot in the head by a gun-wielding assailant while on the job in 2004. The attack not only left him totally blind, but suffering from post-traumatic stress syndrome as well...
First DCA Decision May Provide Financial Incentive to Hire Undocumented Workers
Posted on September 26, 2008All disability payments to an injured worker under the Florida Workers' Compensation Law are based upon the worker's "average weekly wage" at the time of his accident. But what qualifies as "wages" in making the "average weekly wage" calculation? Section 440...
President Bush Signs ADA Amendments Act of 2008
Posted on September 26, 2008President Bush signed into law the ADA Amendments Act of 2008 (S. 3406) on 9/25/2008. The amendments will go into effect on January 1, 2009. You can read the White House press release here and coverage from the Washington Post here.
Florida Supreme Court: JCCs Have Jurisdiction to Overturn Settlement Agreements
Posted on September 26, 2008In Sanders v. City of Orlando, decided on 9/25/2006, a case I discussed here, the Florida Supreme Court has held 5-2 that the judges of compensation claims do have jurisdiction to vacate or set aside lump-sum settlement agreements which had previously been entered into pursuant to the terms of §440...
Florida Supreme Court: Courts May Award Attorney's Fees in Excess of Statutory Caps
Posted on September 25, 2008In what could be a foreshadowing of the court's eventual holding in Murray v. Mariners Health [Fla. S. C. Case No. SC07-244], the Supreme Court of Florida has held 4-3 that a statute which purported to place a cap on fees for attorneys representing death row inmates must be construed in a manner that ensures adequate representation of those inmates...
House Passes ADA Amendments Act of 2008
Posted on September 18, 2008By voice vote on 9/17/2008, the U.S. House of Representatives passed the ADA Amendments Act of 2008 (S. 3406). The bill now goes to the President, who is expected to sign.
$6M Verdict Against UPS in WC Retaliation Case Set Aside
Posted on September 13, 2008Section 440.205, Fla. Stat., provides: Coercion of employees.--No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law...
Senate Passes ADA Amendments Act of 2008
Posted on September 13, 2008The U.S. Senate passed the ADA Amendments Act of 2008 (S. 3406) by unanimous consent on 9/11/2008. The bill now goes to the House for consideration.
Sanction of Dismissal Too Harsh for Violation of Mediation Confidentiality
Posted on September 09, 2008In Hill v. Greyhound Lines, Inc., decided on 8/29/2008, the claimant had violated §440.25(3), which provides that "[e]ach party to a mediation conference has a privilege during and after the conference to refuse to disclose and to prevent another from disclosing communications made during the conference whether or not the contested issues are successfully resolved...
Res Judicata Does Not Bar Second Claim for PTD Benefits
Posted on September 09, 2008In Temples v. WDW Hospitality & Recreation Corp., decided on 8/29/2008, the First District reiterated that an unsuccessful claim for permanent total disability ("PTD") benefits does not necessarily bar a subsequent claim for PTD. See also Myers v...
E/C Owes Attorney's Fee Where Claimant Successfully Prosecuted Claim and More Than 30 Days Elapsed After Receipt of Petition
Posted on September 09, 2008In Franco v. SCI at the Palmer Club at Pestancia, decided on 8/27/2008, the First District reversed the JCC's order which had denied attorney's fees to the claimant's attorney at the expense of the employer/carrier. The court noted that the petition for benefits was accepted when payment was made, not when the forms indicating acceptance of the claimant's permanent total disability status were completed...
First DCA: New Rule for Heart Attacks Caused by Emotional Stress
Posted on September 09, 2008My very first post on this blog concerned a footnote in Coca-Cola Bottling Co. v. Perdue, decided by the First District on 4/9/2007, in which the court speculated whether the Florida Supreme Court's 45-year-old decision in Victor Wine & Liquor, Inc...
No Action for Defamation Where Attorney's Statements About Claimant's Alleged Fraud Were Pure Opinion
Posted on September 09, 2008Dreggors v. Wausau Ins. Co., decided on 8/22/2008, is just the latest in a series of court cases arising out of the alleged commision of workers' compensation fraud by the claimant, his wife, and his attorney. Because the facts are so involved, I simply haven't had time to write about the cases before now, but those interested can read two of those decisions here and here...
Burdens of Proof, Standards of Review for Attorney's Fees, Costs
Posted on September 09, 2008The standard of review employed by the First DCA is often critical to the outcome of the case. In Moore v. Hillsborough Co. School Bd., for example, the court noted that a JCC's decision denying costs and an upward departure from the statutory attorney's fee schedule (in a pre-2003 case) is reviewed for "abuse of discretion...
No Voluntary Limitation of Income Where Claimant Unable to Perform His Post-Accident Job
Posted on September 09, 2008Although the "voluntary limitation of income" defense to the payment of temporary partial disability ("TPD") benefits was repealed by the legislature in 1994, see Ch. 93-415, §20, p. 2397, Laws of Fla., the courts continue to use the phrase...
Petition Not Barred by Res Judicata Where Based On Newly Discovered Evidence
Posted on September 09, 2008As I discussed here, "res judicata" is an equitable doctrine that bars the re-litigation of claims and issues that have already been litigated. But the doctrine also bars claims and issues that could have been but were not litigated at an earlier proceeding...
Governor Crist Upset with List of Supreme Court Candidates
Posted on August 15, 2008The list of applicants to replace Justices Kenneth Bell and Raoul Cantero on the Florida Supreme Court has been narrowed to eight. You can read their names here: According to this report from the 8/15/2008 edition of the St. Petersburg Times, however, Governor Crist is upset that the list does not include the names of any women or African-Americans...
First DCA Adopts New Procedures for WC Appeals
Posted on August 15, 2008The First DCA is tightening up its procedures for filing briefs and the record on appeal in workers' compensation cases. According to this notice from the court: Requests for extensions of time to file a brief must state specifically the circumstances justifying such an extension...
Claimant's Medical Co-Payments Go to the Employer/Carrier
Posted on August 14, 2008Section 440.13(14)(c) says that an injured worker must make a $10.00 co-payment for most medical treatment rendered after he reaches maximum medical improvement. So who gets the co-payment? The doctor? The employer/carrier? Under proposed Fla...
E/C Entitled to Costs Where Claimant Files Voluntary Dismissal
Posted on August 05, 2008Under the 2003 amendment to §440.34, costs are awardable against the "nonprevailing party" in workers' compensation litigation. Is the claimant the "nonprevailing party" when he voluntarily dismisses his petition for benefits short of an order on the merits of the petition? Yes, said the First DCA in Palm Beach County School District v...
Employer Tort Liability for Workplace "Mental or Nervous" Injuries?
Posted on August 02, 2008I hypothesized here about whether last year’s supreme court decision in Willis v. Gami Golden Glades, LLC, 967 So.2d 846 (Fla. 2007), might have the effect of increasing employer liability for “mental or nervous” injuries sustained as a result of certain workplace incidents...
ADA Amendments: Still More Amendments
Posted on August 02, 2008On 7/31/2008, Senator Tom Harkin (D-Iowa), joined by Senators Obama, McCain and Clinton, among others, introduced S. 3406, which is again designated the "ADA Amendments Act of 2008." The bill is quite similar to H...
Still No Pre-Judgment Interest on Attorney's Fees in WC Cases
Posted on August 02, 2008In civil cases where there is a statutory or contractual basis for an award of attorney's fees against the non-prevailing party, the courts also have the authority to award pre-judgment interest on those fees. See Quality Engineered Installation, Inc...
Claimant Fails to Avoid Statute of Limitations With Late-Filed Petition
Posted on August 02, 2008Under longstanding case law, once a petition for benefits has been filed it remains pending until it is dismissed or otherwise disposed of by the JCC. See Turner v. Keller Kitchen Cabinets, Inc., 247 So.2d 35 (Fla. 1971). Section 440...
Employee Seeks Job Reinstatement After Termination for Fraud
Posted on August 02, 2008I wrote here about Escambia County School Board v. Fowler, a case where the school board had terminated the employment of one of its school bus drivers on the grounds that she had committed workers' compensation fraud by making false statements about her medical condition...
General Releases Must Be Specifically Agreed Upon
Posted on August 02, 2008Bonagura v. Home Depot, decided on 7/21/2008, illustrates what can happen when the terms and conditions of a settlement agreement aren't clearly spelled out by both parties during settlement negotiations. The parties in Bonagura had gone to a mediation conference where they agreed to settle the employee's workers' compensation claim for $50,000 plus an attorney's fee...
Confusion Reigns in "Heart-Lung" Cases
Posted on August 02, 2008I've written here and here about the quantum and quality of proof which a governmental employer must present in order to rebut the presumption of compensability for heart disease, etc., afforded to firefighters and other law enforcement personnel by §112...
Federal Minimum Wage Set to Increase
Posted on July 22, 2008The federal minimum wage is set to increase to from $5.85 per hour to $6.55 per hour on July 24. That means the compensation for non-professional attendant care rendered by family members and necessitated by an on-the-job accident in Florida will also increase because that compensation is pegged to the federal minimum wage...
ADA Amendments: Another View
Posted on July 19, 2008The ADA Amendments Act of 2008 (H.R. 3195), which passed the U.S. House of Representatives on June 27, is now being considered by the U.S. Senate. The Senate Committee on Health, Education, Labor, and Pensions conducted a hearing on the bill on July 15...
First DCA Rejects Constitutional Challenge to "Horizontal Immunity"
Posted on July 18, 2008The First District Court of Appeal made quick work of a Jacksonville construction worker's constitutional challenge to the so-called "horizontal immunity" provision of the Florida Workers' Compensation Law which I discussed here. Just three days after hearing oral argument, the court "PCA'd" , i...
Claimant Entitled to "One-Time-Change" Even Though First Physician Never Undertoook Actual Treatment
Posted on July 14, 2008The claimant is entitled to a "one-time-change-of-physician" under §440.13(2)(f) where the first physician evaluated him and ordered an MRI scan even though he never rendered any actual treatment. So said the First District Court of Appeal in Nunez v...
E/C Not Entitled to Claimant's Financial Records Absent Showing of Relevancy
Posted on July 14, 2008In Spry v. Professional Employer Plans d/b/a IHOP (decided on 7/7/2008), the First District Court of Appeal granted the claimant's petition for writ of certiorari and quashed the JCC's order compelling the claimant to disclose financial information...
Three JCCs Seek Reappointment; Applications Sought for Two More
Posted on July 14, 2008JCC Alan M. Kuker of Miami, JCC Daniel A. Lewis of Ft. Lauderdale, and JCC Mary A. D'Ambrosio of West Palm Beach are all seeking reappointment as judges of compensation claims. The three will appear before the Statewide Nominating Commission for Judges of Compensation Claims in Orlando on August 18...
Injured Worker Challenges Constitutionality of "Horizontal Immunity" Provision
Posted on July 12, 2008Last December, The Florida Times-Union carried this story about Gregory Aikens, a Jacksonville construction worker employed by subcontractor Dee Shoring Co., Inc., who was injured on the job due to the negligence of Miller Electric, another subcontractor on the same job...
Ideological Split Continues at Supreme Court of Florida
Posted on July 12, 2008The ideological split among the current justices at the Supreme Court of Florida continued to show in three cases decided on 7/10/2008. In Florida Dept. of Environmental Protection v. Contractpoint Florida Parks, LLC, the court held 4-3 that §11...
OSHA Gets Money to Investigate Underreporting of Workplace Accidents
Posted on July 10, 2008The Charlotte Observer continued its coverage of the underreporting of workplace injuries on 7/3/2008 with this story. According to the report, the U.S. Senate has appropriated additional money to fund a recordkeeping enforcement unit within OSHA...
Supreme Court of Florida Quashes Fourth DCA's Decision in Bar Fight Case
Posted on July 10, 2008The bar patron who was convicted of battery and other offenses in connection with a brawl at the Stuart Ale House and whose conviction was affirmed by the Fourth District Court of Appeal will get another chance before that court. As I discussed here, during the course of Deren's criminal prosecution the State came into possession of a letter from Hartford, Stuart Ale House's workers' compensation insurer, documenting that it had paid over $20,000 to and on behalf of its bouncer who was injured in the fracas...
Are On-The-Job Injuries Being Underreported?
Posted on June 30, 2008The U.S. House of Representatives Committee on Education and Labor is investigating that question. And in a majority staff report entitled Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses, the committee answered the question in the affirmative...
Attorney Seeks Supreme Court Review of WC Settlement
Posted on June 30, 2008Speaking of settlements, I've been watching the case of Manzini & Associates, P.A. v. Broward Sheriff''s Office, which I discussed here. That's the case where the claimant, Wimberly, was simultaneously pursuing a workers' compensation claim and a discrimination claim against her employer, the Broward Sheriff's Office ("BSO"), but with a different attorney for each claim...
No Enforceable Settlement Where Attorney Had No Authority to Settle
Posted on June 30, 2008Munroe v. U.S. Food Service, decided on 6/27/2008, illustrates the risks inherent in "settling" a case at mediation when one party's attorney doesn't have authority to do so. The parties in Munroe went to a mediation conference where they conditionally agreed to settle for $30,000...
ADA Amendments Pass in House
Posted on June 26, 2008The ADA Amendments Act of 2008 which I wrote about two days ago passed the U.S. House of Representatives on 6/25/2008 by a vote of 402-17, with 15 members not voting. The Senate will now take up the legislation.
Governor Crist Declines to Reappoint JCC Dane
Posted on June 26, 2008Governor Crist has notified JCC William H. Dane of Jacksonville that he will not be reappointed to a second term. Here's the story from today's edition of The Florida Times-Union. Judge Dane will remain on the bench until the governor appoints a successor, a process which normally takes about 90 days.
When Are Misstatements "Knowingly" False?
Posted on June 24, 2008Bologna v. Schlanger, though not a workers' compensation case, is an interesting recent decision from the Fifth District Court of Appeal on the issue of "fraud" which could have some application in the workers' compensation setting...
Big Changes Afoot for Americans with Disabilities Act
Posted on June 24, 2008One question I get from clients fairly often is whether an employer is required to continue offering employment to an injured worker following his on-the-job accident. As far as the Florida Workers' Compensation Law is concerned, the answer is no...
"Preponderance of the Evidence" Instead of "Competent Substantial Evidence" Standard Applies in Determining Estoppel
Posted on June 18, 2008Branham v. TMG Staffing, decided on 6/18/2008, is another case involving whether the employer is estopped from asserting the statute of limitations as a defense to a claim where it allegedly failed to mail to the claimant the informational brochure mandated by §440...
Employee's "Exposure" Claim Deficient Where No Evidence of Specific Chemical Involved or Level of Exposure
Posted on June 18, 2008In 2003, the legislature redefined "accident" to make it more difficult to prove that workplace exposures to allegedly harmful substances are compensable under the Florida Workers' Compensation Law. Specifically, §440.02(1) now provides that "[a]n injury or disease caused by exposure to a toxic substance...
Functions Transferred to Department of Financial Services
Posted on June 17, 2008HB 5045 has now been signed by Governor Crist and takes effect on July 1, 2008. See Ch. 2008-133, Laws of Fla. The measure transfers various duties such as resolving overutilizaion disputes and certifying expert medical advisors from the Agency for Health Care Administration to the Department of Financial Services.
Liability for Workplace Bullies?
Posted on June 12, 2008The 2008 Florida Legislature enacted Ch. 2008-123, the "Jeffrey Johnston Stand Up for All Students Act" which directs all school boards in Florida to develop and adopt policies to prohibit "bullying or harassment" of students or employees...
Employer's "Constructive Knowledge" of Accident Insufficient for "Actual Knowledge"
Posted on June 06, 2008Section 440.185(1) requires an employee to notify his employer of an on-the-job accident within 30 days of its occurrence. The employee's failure to give timely notice will bar a subsequent petition for benefits unless he can establish that one the statute's four subsections applies...
New Mortality Tables for MSAs
Posted on June 06, 2008Mortality tables genereally break down life expectancies by race and sex. In this 5/20/2008 memo, however, the Center for Medicare Services announces that for Medicare Set-Aside Arrangements it will accept only estimates from Table 1 of the Center for Disease Control's mortality tables, that is, for the population as a whole without regard to race and sex...
Two New Tests for Malingering Introduced
Posted on June 06, 2008The holy grail for workers' compensation carriers is a test that can separate the malingerers from those that are truly injured. Now there are two controversial tests that purport to be able to do just that. One is the MMPI "fake bad" scale developed by Dr...
Increased WC Medical Costs Coming?
Posted on June 02, 2008Medical costs for Florida workers' compensation claims are about to go up by about 20% if the Division of Workers' Compensation adopts a recommendation made by a consulting firm which it retained. That's what Joe Paduda says in this post on his "Managed Care Matters" blog...
Three Sentenced in Fraudulent Workers' Compensation Scheme
Posted on May 30, 2008I wrote here about three businessmen who were recently convicted in federal court of conspiracy, mail fraud, wire fraud, and money laundering in connection with various fraudulent workers' compensation schemes. They've now been sentenced to a combined 55 years in prison along with forfeiture of $75M in assets...
Sheriff Reinstates Deputy Pending Completion of Fraud Investigation
Posted on May 29, 2008As I discussed here, an employer's or carrier's allegation that an employee has committed workers' compensation fraud by violating one or more provisions of §440.105 can sometimes have collateral consequences. For example, in Sickles v...
Big Changes Ahead for the Supreme Court of Florida
Posted on May 27, 2008Justice Cantero recently announced that he is resigning from the Supreme Court of Florida effective September 6. Then last week, Justice Bell also announced his resignation effective October 1. Now comes word from this article from the 5/24/2008 edition of the Miami Herald that Justices Anstead and Wells will be forced to leave office early next year due to reaching the mandatory retirement age of 70...
Newly Enacted "Guns at Work" Bill Challenged in Federal Court
Posted on May 23, 2008This isn't strictly a workers' compensation issue, but is one that has businesses around the state concerned about potential liability, both in workers' compensation and in tort. Ch. 2008-7, Laws of Fla., officially entitled the "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008," but perhaps more popularly known as the "Guns at Work" bill, was passed by both houses of the Florida Legislature and signed by the governor...
E/C Can Compel Claimant's Attorney to Testify In Support of Statute of Limitations Defense
Posted on May 22, 2008Section 440.185(4), Fla. Stat., requires the workers' compensation carrier, within three days of learning of an on-the-job accident, to send to the injured worker a copy of this informational brochure which explains to him his rights and obligations under the Florida Workers' Compensation Law, including the fact that the statute of limitations may expire on his claim after one year from the last payment of compensation or furnishing of medical care...
Judges of Compensation Claims Split on Proper Rate for Non-Professional Attendant Care
Posted on May 19, 2008Another judge of compensation claims has weighed in on whether non-professional attendant care must be compensated at the federal minimum wage (currently $5.85/hr.) or at the Florida minimum wage (currently $6.79/hr., effective 1/1/2008). As I wrote here, JCC Castiello and JCC Medina-Shore have concluded that the Florida minimum wage applies to such care notwithstanding the express requirement in §440...
JCC Lorenzen: No §57.105 Fees in WC Cases
Posted on May 19, 2008One idea I heard bandied about after the enactment of the 2003 amendment to §440.34 was whether a successful claimant might avoid the fee limitations contained in the amendment by claiming entitlement to fees, in an appropriate case, under §57...
Employer Immune From Tort Liability for Employee's On-The-Job Sexual Assault by Co-Employee
Posted on May 15, 2008In Doe v. Footstar Corp., the Second DCA affirmed the trial court's judgment on the pleadings in favor of the employer and concluded that the employee's civil action against it was barred by the "exclusive remedy" provision of §440.11. The employee (a minor, who brought the action through her parents) alleged in her complaint that Cooper, a co-employee, had assaulted and sexually battered her in the course of his employment with Footstar and that Footstar had negligently hired, retained, supervised, and trained Cooper...
Second DCA: Employer Not Estopped from Asserting "Exclusive Remedy" Defense
Posted on May 15, 2008In Tractor Supply Co. v. Kent, which I discussed here, the Fifth DCA held that an employer was not estopped from asserting workers' compensation immunity as a defense to a civil action by its injured employee merely because it contended that the employee's ongoing medical condition is no longer attributable to the on-the-job accident, but to a pre-existing condition...
Eighth Circuit: Employer Must Pay for Time Employee Missed From Work to Attend WC Medical Appointment
Posted on May 12, 2008Howser v. ABB, Inc., a 3/27/2008 decision from the federal Eighth Circuit Court of Appeals involving the Fair Labor Standards Act ("FLSA"), illustrates again how workers' compensation issues sometimes become intertwined with other employment laws...
First DCA: JCC Not Disqualified from Hearing Claimant's Case
Posted on May 12, 2008As I discussed here briefly, if a litigant in a workers' compensation proceeding fears that he will not receive a fair hearing at the hands of the JCC assigned to his case, Fla. Admin. Code R. 60Q-6.126 provides that he may file a motion seeking disqualification of the judge under the applicable Florida Rules of Judicial Administration...
JCC's 23-Month Delay in Entering Final Order Affirmed
Posted on May 12, 2008"Justice delayed is justice denied," goes the old saying. Consistent with that maxim, §440.25(4), Fla. Stat., provides that the JCC "shall" issue a final order within 30 days of a hearing on the merits of a claim...
Standards for Rebutting the "Heart-Lung" Presumption - Part Deux
Posted on May 12, 2008Just a few days ago, I wrote about Lentini v. City of West Palm Beach, a case where the First DCA reiterated that in order to rebut the presumption of compensability afforded by §112.18(1), the so-called "Heart-Lung" bill, an employer need only present "competent substantial evidence...
Watch Those General Releases When Settling a WC Claim
Posted on May 08, 2008When settling a workers' compensation claim with an employee, most Florida employers - particularly if they're self-insured - want the employee to settle not only his rights under the Florida Workers' Compensation Law, but any other kind of employment-related claim which the employee may have as well...
"Dual Persona" Doctrine Does Not Permit Third Party's Contribution Claim Against Employer
Posted on May 08, 2008The "dual persona" doctrine, discussed only sparingly in Florida judicial decisions, is an exception to the "exclusive remedy" provision which bars most tort claims by an employee against his employer. The doctrine permits an employee to pursue a tort claim against his employer where the corporate employer merges with a corporate third-party tortfeasor after the accident which caused the employee's injuries...
Res Judicata Does Not Bar Second Claim for PTD Benefits
Posted on May 07, 2008Res judicata (literally, "a thing decided") is an equitable doctrine which bars the re-litigation of claims and issues that have already been determined in an earlier judicial proceeding. Does that doctrine bar a claim for permanent total disability benefits where the JCC has previously considered and denied such a claim? Not necessariliy, said the First DCA in Myers v...
Standards for Post-10/1/2003 PTD Claims - Another Decision
Posted on May 07, 2008I wrote here about Wal-Mart Stores, Inc. v. Thompson, where the First DCA strongly implied that the pre-1994 standards governing the quality of proof needed to support an award of permanent total disability benefits apply to post-10/1/2003 claims...
Costs Awardable Against Non-Prevailing Claimant Even Where JCC Fails to Reserve Jurisdiction
Posted on May 07, 2008As I discussed here, one of the legislative changes enacted in 2003 concerns the issue of costs in workers' compensation litigation. Formerly, §440.34(3) authorized an award of costs only in favor of a prevailing claimant in a workers' compensation proceeding...
Late-Filed Petition for Writ of Certiorari Dismissed
Posted on May 06, 2008A pretrial order compelling discovery can be reviewed by way of petition for writ of certiorari without waiting until the conclusion of the trial so long as the petitioner can show: (1) that the order constitutes a departure from the essential requirements of law; (2) that it would cause material harm; and (3) that the harm caused by the order cannot be adequately remedied by way of a post-trial appeal...
First DCA Sets Standards to Rebut "Heart-Lung" Presumption
Posted on May 06, 2008Section 112.18(1), Fla. Stat., says that if a firefighter, law enforcement officer, or corrections officer contracts tuberculosis, heart disease, or hypertension, there arises a presumption that the disease was contracted in the course of his employment...
Murray v. Mariners Health - Waiting for the Other Shoe to Drop
Posted on May 05, 2008Of course, the case on everyone's mind since I last posted is one that hasn't yet been decided - Murray v. Mariners Health, the case in which the Supreme Court of Florida is considering the validity of the 2003 amendment to §440.34, Fla...
Legislative Roundup
Posted on May 04, 2008Sorry for the lack of posting for the last few weeks. I'll try to catch up over the next few days. To begin, let's look at the legislative session which ended on 5/2/2008. What happened? Almost nothing. SB 2548, the bill which contained a number or changes to the law which I summarized here, was never even taken up by committee...
"Special Hazard" Exception to the "Going and Coming" Rule Applies Where Employee Uses "Usual" or "Expected" Route to Work
Posted on March 31, 2008In order to be compensable under the Florida Workers' Compensation Law, the employee's accident must have been sustained while he was "in the course of" his employment. Under what has become known as the "going and coming rule," the employee is not considered to be "in the course of" his employment when he is injured in an accident sustained while going to work or while coming home from work...
AWW and "Customary Hours" of Employment
Posted on March 31, 2008Stubbs v. Bob Dale Construction, decided on 3/25/2008, illustrates just how complicated the computation of a claimant's average weekly wage ("AWW") can be. That determination is governed by §440.14(1), Fla. Stat., which has seven subsections, (a) through (g)...
Supreme Court Denies Review in Liberty Mutual v. Steadman
Posted on March 27, 2008In Liberty Mutual Insurance Company v. Steadman, a case which I originally discussed here, the Second District Court of Appeal held that the allegations of Steadman's complaint, if true, would be sufficient to sustain an award of damages for intentional infliction of emotional distress by Liberty Mutual and its claims adjuster...
Supreme Court Denies Review in Estoppel Case
Posted on March 20, 2008By a vote of 4-3, the Florida Supreme Court in this 3/20/2008 order has denied review of the Fifth District Court of Appeal's decision in Tractor Supply Company v. Kent, a case from last August which I discussed here and here. The claimant in that case filed a tort claim against his employer after the workers' compensation carrier denied his workers' compensation claim on the grounds that his medical problems all stemmed from a pre-existing condition...
No WC Liability = No WC Immunity
Posted on March 12, 2008Although we can't tell the facts of the case from the Third DCA's brief opinion in City of Miami v. Gutierrez, decided on 3/12/2008, because of the First DCA cases and the statute cited in the opinion we can surmise that the case involved the estate of an employee suing his employer in tort for injuries sustained while the employee was engaged in some type of "recreational and social activity" connected with his employment...
First DCA: Fake Social Security Number Used to Obtain Employment Not a Bar to WC Benefits
Posted on March 11, 2008I wrote here about whether an employee who knowingly presents false evidence of his identity to his employer in obtaining employment, thereby violating §440.105(4)(b)9, Fla. Stat., also thereby forfeits his right to workers' compensation benefits if he is injured in a subsequent on-the-job accident...
Harmless Error to Admit Non-IME Medical Opinion; E/C Failed to Request EMA Timely
Posted on March 11, 2008U.S. Agri-Chemicals Corp. v. Camacho, decided on 3/10/2008, reminds us that only the medical opinions of: (1) an authorized treating physician; (2) an independent medical examiner; or (3) an expert medical advisor are admissible in evidence in a Florida workers' compensation proceeding...
Employer Entitled to Costs Even Though it Did Not Plead Entitlement
Posted on March 11, 2008One of the many changes enacted by the 2003 legislature was an amendment to §440.34(3), Fla. Stat., which, for the first time, allowed an employer/carrier to recover its litigation costs from an unsuccessful claimant. Must the employer/carrier specifically plead entitlement to costs in the pretrial stipulation in order to recover them? No, said the First DCA in F...
Corrections Officer's Heart Disease Not Covered by the "Heart-Lung" Bill
Posted on March 11, 2008Back in July, I wrote here about Raul Saldana, a corrections officer employed by the City of Miami, who suffered from hypertension and heart disease. He filed a claim for compensation and medical care under the Florida Workers' Compensation Law, relying upon §112...
Employee Leasing Company Not Liable for Injuries to Employee of its Client
Posted on March 07, 2008Crum Services v. Lopez, decided on 3/6/2008, illustrates a situation that arises all too often in the context of employee leasing companies. Crum Services is an employee leasing company (also known as a "professional employer organization" or "PEO") who entered into a contract with P&G Roofing to provide leased employees to P&G...
Cancer Bill for Firefighters and Paramedics Re-Introduced
Posted on March 03, 2008As he apparently promised he would (see this post), Senator Jeff Atwater, a Republican representing parts of Palm Beach and Broward Counties, has re-introduced a bill identical to last year's bills (see SB 1440 and HB 301 from the 2007 legislative session) which would provide cancer coverage for firefighters and paramedics...
Employee-Friendly WC Bill Introduced in Florida Senate
Posted on March 02, 2008On 2/29/2008, Senator Steven R. Wise, a Republican from Northeast Florida, introduced SB 2548 in the Florida Senate. If passed at the upcoming legislative session set to begin on March 4, this bill would provide significant increases in the workers' compensation benefits payable to injured workers...
Trucking Company Not a General Contractor; No Duty to Provide WC Coverage for "Sub's" Employee
Posted on March 01, 2008Section 440.10(1)(a), Fla. Stat., requires "every employer coming within the provisions of this chapter" - including both general contractors and subcontractors - to obtain workers' compensation insurance covering their respective employees...
EMA's Opinions Inconclusive: What to Do?
Posted on February 29, 2008What happens if the JCC appoints an expert medical advisor ("EMA") to resolve a conflict in the medical testimony, but the EMA fails to express an opinion on the issue? That's what happened in Fitzgerald v. Osceola County School Board, decided on 2/19/2008...
Governor Crist Still Considering Re-Appointment of JCC Dane
Posted on February 29, 2008According to this report from the 2/21/2008 edition of the Florida Times-Union, Governor Crist has not yet decided whether to re-appoint Judge of Compensation Claims William H. Dane, Jr., as one of Jacksonville's two judges of compensation claims...
Insurance Commissioner Orders Excess Workers' Compensation Insurance Profits Returned
Posted on February 29, 2008Florida Insurance Commissioner Kevin McCarty has ordered 6 workers' compensation insurance carriers to refund $4.2 million in excess profits to their employer policyholders. "Excess profits" result when the workers' compensation insurance carrier's "underwriting gain" for workers' compensation insurance exceeds its "anticipated underwriting profit" by a factor of 5%...
Claimant's False Social Security Number Not a Bar to Claim
Posted on February 29, 2008I wrote here and here about whether false evidence of identification in the form of a false Social Security number can constitute "fraud" under §440.105(4)(b)9, Fla. Stat. JCC John P. Thurman in Gainesville recently weighed in on the subject in Gonzalez v...
Three Convicted in Fraudulent WC Insurance Scam
Posted on February 16, 2008Three men were recently convicted by a federal jury in Jacksonville on various counts of conspiracy, mail fraud, wire fraud, and money laundering. According to the 73-page indictment, the men defrauded client companies of various professional employer organizations (PEOs) by having them pay premiums for workers' compensation insurance coverage...
Supreme Court Declines Review in Employee Leasing Case
Posted on February 14, 2008In this 2/11/2008 order, the Florida Supreme Court has declined review of the First District Court of Appeal's decision in Blue Stone Real Estate v. Ward, sub nom., Matrix Employee Leasing, Inc., etc., et al. v. Ward, et al., Case No. SC07-1826. In Ward, the First District held that a leased employee remains an employee of the leasing company for workers' compensation purposes where the leasing company never notifies the leased employee that it has terminated its leasing contract with the client company.
Proposed Legislation Would Affect Employee Leasing Companies
Posted on February 13, 2008Though Florida's annual legislative session is set to begin on March 4, so far only two bills have been filed which would meaningfully affect the area of workers' compensation. Those identical bills, SB 454 and HB 239, concern employee leasing companies...
Fifth Circuit: No Psychotherapist-Patient Privilege for Threats Made by Workers' Compensation Claimant
Posted on February 12, 2008After his workers' compensation carrier notified John Auster, a retired New Orleans police officer, that it intended to terminate a portion of his workers' compensation benefits, Auster told his psychotherapist that he intended to commit acts of violence against some of the carrier's employees if they did...
PTD Standards for Post-10/1/2003 Claims: Wal-Mart Stores, Inc. v. Thompson
Posted on February 12, 2008I wrote here about the case of Wal-Mart Stores, Inc., v. Thompson, Case No. 1D07-2661, a case concerning what quantum of proof a claimant must present in support of his post-10/1/2003 claim for permanent total disability benefits. The First District Court of Appeal issued its opinion in that case on 2/6/2008 in which it affirned the JCC's award of PTD benefits to the claimant...
First DCA Declines to Issue Petition for Writ of Certiorari in Attorney's Fee Case
Posted on February 12, 2008I mentioned in this post that the law firm which filed an amicus brief on behalf of the Florida Police Benevolent Association and in support of the claimant in the Emma Murray case had cited one of its own cases, Weimer v. City of Kissimmee, as an example of a situation where the claimant has been hindered in his ability to retain counsel of his own choosing as a result of the 2003 amendment to §440...
Supreme Court Declines Review in Spoliation Case
Posted on February 05, 2008In Perez v. La Dove, Inc., a case which I wrote about here and here, the Third DCA held that an injured worker must specifically request his employer to preserve evidence critical to his third-party liability claim before liability for spoliation of evidence will arise against the employer...
Permanent Total Disability Standards for Post-10/1/2003 Claims: Back to the Future?
Posted on February 01, 2008Another of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was one changing the standards for awards of permanent total disability benefits. The impetus for this particular change apparently was the finding by FCCI in 2003 that permanent total disability claims in Florida were five (5) times the national average...
Firefighter Entitled to Benefit of Statutory Presumption; Awarded PTD Benefits
Posted on February 01, 2008A firefighter who was diagnosed with peripheral vascular disease was entitled to the presumption afforded by §112.18(1) that the disease was caused by his employment. And because his condition met or equaled a "Listing," i.e. an impairment listed in 20 C...
Undocumented Worker Entititled to Medical Care - - In Mexico
Posted on February 01, 2008In AMS Staff Leasing, Inc., v. Arreola, the employee, an undocumented alien who had entered illegally into the United States from Mexico, was injured in an on-the-job accident while working in Florida. After undergoing twelve post-accident surgical procedures, his physician recommended that he undergo yet another procedure...
Claimant Files Jurisdictional Brief in Estoppel Case
Posted on January 28, 2008The claimant/plaintiff in Tractor Supply Company v. Kent, a case which I wrote about here, has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. In that case, the Fifth District Court of Appeal held that just because a workers' compensation carrier has previously denied an employee's workers' compensation claim, the employer is not necessarily estopped from asserting workers' compensation immunity as an affirmative defense to the employee's subsequent liability claim against the employer...
WC Release Bars Claimant's Pending Tort Claim Against Employer's Sister Corporation
Posted on January 28, 2008Is a workers' compensation settlement agreement which purports to release the employer along with "its subsidiaries, affiliates, [and] parent companies" broad enough to release not only the employer from further liability under the Florida Workers' Compensation Law, but also the employer's sister corporation from the claimant's tort claim against the sister corporation? Yes,said the First District Court of Appeal in Churchville, et ux v...
First DCA: Employer/Carrier Must Provide Independent Medical Examination
Posted on January 28, 2008"In any dispute concerning overutilization, medical benefits, compensability, or disability benefits under this chapter, the carrier or the employee may select an independent medical examiner." So begins §440.13(5), Fla. Stat. Nelis Pena, an injured worker, filed a petition for benefits claiming entitlement to various disability benefits under the Florida Workers' Compensation Law and subsequently filed this Motion to Compel the Employer/Carrier to provide a psychiatric independent medical examination ("IME")...
Carrier Barred from Asserting Statute of Limitations as a Defense
Posted on January 28, 2008Section 440.19(1) and (2), Fla. Stat., says that a petition for benefits is barred by the statute of limitations unless it is filed within two (2) years from the date of accident, or within one (1) year from the time the employer last paid compensation or provided medical care to the claimant, whichever is later...
Parties File Jurisdictional Briefs in Estoppel Case
Posted on January 28, 2008The claimant/plaintiff in Tractor Supply Company v. Kent, a case which I wrote about here, has filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. In that case, the Fifth District Court of Appeal held that just because a workers' compensation carrier has previously denied an employee's workers' compensation claim, the employer is not necessarily estopped from asserting workers' compensation immunity as an affirmative defense to the employee's subsequent liability claim against the employer...
Steadman Files Her Jurisdictional Answer Brief
Posted on January 20, 2008The plaintiff/claimant has filed her jurisdictional answer brief in the Florida Supreme Court in the case of Liberty Mutual Insurance Company v. Steadman (For previous posts about this case, see here, here, and here). The brief, which you can read here, says that the allegations of her complaint against Liberty Mutual and its claims adjuster are sufficient to state a claim for intentional infliction of emotional distress because those allegations go far beyond alleging a "mere delay" in providing medical benefits or a "minor delay" in the claims process...
Four More Briefs Filed in Suppport of Claimant in Murray v. Mariners Health
Posted on January 20, 2008Four More briefs have been filed in the Florida Supreme Court in support of the claimant's challenge to the constitutionality of the 2003 amendment to §440.34, Fla. Stat., in the case of Murray v. Mariners Health. The first, filed by the Workers' Compensation Section of the Florida Bar, doesn't add much to the discussion...
Employee Failed to Report Accident Timely; Compensability Denied
Posted on January 09, 2008Section 440.185(1), Fla. Stat., requires an injured worker to report an on-the-job injury to his employer within 30 days "after the date of or initial manifestation of the injury." Subsection (1)(b) provides an exception to that rule in cases where "[t]he cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion that the injury arose out of and in the course of employment...
Lawsuit Claims Attorney Stole Clients from Former Firm
Posted on January 04, 2008The West Palm Beach law firm of Rosenthal & Levy has filed suit against the law firm of Morgan & Morgan. The suit claims that one of R & L's former associates improperly solicited some of the firm's clients to join him at M & M, his new firm...
Attorney's Fee Amendment Results in Worker's Inability to Find an Attorney
Posted on January 04, 2008Here's a link to an article from the 12/30/2007 edition of the Palm Beach Post regarding the effect of the 2003 amendment to §440.34, Fla. Stat. As the attorneys challenging the constitutionality of the amendment have argued in Murray v...
Department of Financial Services Issues Annual Report on WC Fraud
Posted on January 04, 2008Section 626.989(9), Fla. Stat., directs the Department of Financial Services to prepare an annual "joint performance report" to the legislature on workers' compensation fraud by January 1 of each year. The Department has now issued its report covering the period 7/1/2006 through 6/30/2007, which you can read here...
Liberty Mutual Files Jurisdictional Brief in Steadman Case
Posted on December 26, 2007In Liberty Mutual Ins. Co. v. Steadman, a case which I wrote about here and here, the Second District Court of Appeal held that Steadman's complaint, which alleged that Liberty Mutual had refused to authorize treatment for her life-threatening medical condition even after the JCC ordered them to do so, stated a valid claim for intentional infliction of emotional stress...
Judge Ervin Co-Authors Amicus Brief in Support of Petitioner in Murray
Posted on December 26, 2007The Honorable Richard W. Ervin, III, recently retired from his long tenure as a member of the First District Court of Appeal, has co-authored this amicus brief which has been filed in support of the petitioner in Murray v. Mariners Health and on behalf of Voices, Inc...
Third DCA: Malicious Prosecution Claim Against Employer not Subject to Arbitration
Posted on December 20, 2007Although it's difficult to tell all of the facts from the Court's brief opinion, it would appear that the employee had an employment contract with his employer in which he agreed to arbitrate rather than litigate any employment-related claims under the "Employment Retirement Income Security Act, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities Act, the Older Workers' Benefits Protection Act, as well as all other federal, state, and local employment-related laws, regulations, rules or theories...
Florida Justice Association Files Amicus Brief in Murray v. Mariners Health
Posted on December 19, 2007The Florida Justice Association (formerly known as the Academy of Florida Trial Lawyers) has filed an amicus brief in support of the petitioner in Murray v. Mariners Health. You can read their brief here. Unlike the petitioner, they limit their argument against the constitutionality of the 2003 amendment to §440...
Claimant's Initial Brief filed in Murray v. Mariners Health (Part II)
Posted on December 18, 2007(Cont'd from Part I)Here's my summary of the claimant's arguments before the Supreme Court: STATUTORY CONSTRUCTION (1) The limitation on attorney's fees is contained in subsection (1) of §440.34. However, it is subsection (3) of §440...
Claimant's Initial Brief filed in Murray v. Mariners Health
Posted on December 18, 2007The claimant has filed her initial brief in the Florida Supreme Court in the case of Murray v. Mariners Health, the case where the Court has agreed to consider the constitutionality of the 2003 amendment to §440.34, Fla. Stat. You can read a copy of the brief here...
'Horizontal Immunity' Protects Subcontractor from Tort Liability
Posted on December 05, 2007One of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was a change regarding immunity from tort liability for subcontractors on construction jobs. Specifically, the 2003 amendment to §440.10 now provides so-called "horizontal immunity" from tort liability for injuries to employees of other subcontractors provided that: (1) the defendant subcontractor has secured workers' compensation insurance coverage for its own employees; and (2) the defendant subcontractor's own "gross negligence" was not the "major contributing cause" of the injuries...
Maximum Compensation Rate for 2008 Announced
Posted on December 04, 2007The Florida Division of Workers' Compensation has announced that the maximum compensation rate for accidents occurring in 2008 is $746.00 per week. See DFS-14-2007.
Liberty Mutual Seeks Supreme Court Review in Steadman Case
Posted on December 04, 2007On 11/30/2007, Liberty Mutual filed a Notice to Invoke the Discretionary Jurisdiction of the Florida Supreme Court in the case of Liberty Mutual v. Steadman, a Second DCA decision which I discussed here. The Second DCA held in that case that Steadman's complaint, which alleged that Liberty Mutual had engaged in a number of "outrageous" acts in the handling of Steadman's workers' compensation claim, stated a valid cause of action for intentional infliction of emotional distress...
Third DCA: Interest Awardable on WC Lien
Posted on November 26, 2007The Third DCA has held that a 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...
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A. comparative negligence
B. seller sells to buyer
B. defense of ...
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This is a very tough situation your friend is in. It is difficult to know the ex...
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