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Division of Workers’ Compensation, Bureau of Compliance Quarterly Newsletter

The Division of Workers' Compensation, Bureau of Compliance, is pleased to publish its inaugural Quarterly Newsletter.  This Newsletter provides the Bureau with an opportunity to share its activities, new initiatives, administrative rule changes and updates as well as general information.  The Bureau will publish a quarterly newsletter at the conclusion of each quarter.  Please click here to view the Quarterly Newsletter: http://www.myfloridacfo.com/wc/pdf/BOC-Quarterly-Newsletter-July-2010.pdf, or go directly to the Division's website at: http://www.myfloridacfo.com/wc/.

PTD-Vocational Experts-No Limitation:

In Hernandez v. Paris Industrial Maintenance, (1  D09-4183, July 7, 2010), the 1st DCA reversed the JCC's denial of PTD benefits.  The E/C had earlier hired a vocational expert, who performed an examination of the claimant and performed various vocational services for the claimant.  The E/C listed this expert as a witness on the pretrial the report was furnished to the claimant without any objection.  The claimant also hired a vocational expert who provided a report with similar conclusions as the E/C's expert.  Less than 30 days before the final hearing, the E/C sought to "delete" its vocational expert from the pretrial and substitute another vocational expert they had hired.  The JCC granted this over objection.  The claimant had independently listed this expert as their witness as well and the expert's deposition was taken and his report authenticated.  At trial, the E/C moved to strike the deposition and report as prejudicial and "duplicitous".  The JCC granted this motion, holding that each side was only entitled to one expert.  There was a long discussion by the Court on this issue, but to summarize, the 1st DCA stated that the JCC created her own rule here.  The one expert limitation is for IME's and there is no such limitation for vocational experts.  The E/C also tried to prevent the opinion of the expert and report from being introduced based upon the "work product" doctrine, which the 1st DCA held clearly was not applicable.  As long as the evidence was relevant, it could come in.  The JCC's refusal to allow this testimony and report to be entered into evidence for the claimant, who clearly had the burden of proof, was an abuse of discretion and the 1st DCA reversed the denial of the PTD benefits. 

Special Disability Trust Fund:

In Florida Sheriff's Workers' Compensation Self-Insurance Fund v. Dept. of Financial Services, (1 D09-4901, July 7, 2010), the 1st DCA held that the Special Disability Trust Fund (SDTF) assessment against self-insurers, insurance companies and others responsible for payment of the annual assessment, is constitutional and continues to apply.  In 1996, the Legislature amended section 440.49, F.S. by limiting the claims eligible for reimbursement.  The limit was to cut off reimbursement to employers or carriers for any subsequent injury or death or disablement or death from a subsequent occupational disease occurring on or after January 1, 1998.  There are still payments being made for qualifying injuries and the SDTF continues to provide reimbursements.  The Appellant's argument was that it was not formed until 2002 and that there should be no assessment for them, in that the SDTF law is inapplicable to them.  The 1st DCA disagreed and held that the SDTF is an "assessment" not a tax and that the SDTF serves an important public service. 

Procedure-Failure to Rule on an issue: 

In Elias v. World Wide Concessions, LLC D/b/a Pizza Hut, (1 D09-5076, July 7, 2010), the Court affirmed the JCC's rulings on TPD and additional impairment benefits, but held that the JCC’s failure to rule on the correct rate of impairment income benefits payable for the permanent impairment sustained cannot stand. Here, Claimant, in two instances (in her trial memo, and again in a motion for rehearing), requested the JCC render a ruling on the correct rate of impairment income benefits payable pursuant to section 440.15(3)(c), Florida Statutes (2007), based on the stipulated average weekly wage (AWW) of $491.34 (here, an issue regarding the correct AWW was litigated, and resolved on the record at hearing). Notwithstanding, the JCC failed to address this issue by way of substantive ruling, denial, or reservation, requiring Claimant to appeal the absence of a ruling. (See Betancourt v. Sears Roebuck & Co., 693 So. 2d 680, 682 (Fla.1st DCA 1997) (en banc) (stating in cases where JCC fails to rule on issue ripe for adjudication, and does not reserve jurisdiction on issue, appellate court will consider absence of ruling a denial for jurisdictional purposes, and failure to rule reversible error based on JCC’s noncompliance with duty to adjudicate all ripe issues).  Because the JCC failed to rule on a ripe, substantive issue, twice brought to her attention during the course of the trial proceedings, the court was constrained from ruling on the appropriateness of the impairment income benefits thus far paid to Claimant. The Court had no reservation, however, in concluding the JCC or the E/C should have addressed, in some fashion, the Claimant’s stated concerns as to the appropriate rate, to oblige the intent of the Legislature that the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of benefits, in an efficient and self-executing system which is not an economic or administrative burden (see section 440.015, Florida Statutes (2007)), and to avoid the otherwise unnecessary aspects of this appeal. 

TPD-Causal Connection-THIS IS THE CASE REGARDING WHAT IS REQUIRED:

In Wyeth/Pharma Field Sales v. Toscano, (1 D09-5138, July 7, 2010), the 1st DCA affirmed the JCC's holding that the claimant was entitled to TPD benefits, in a very long (19 pages) decision laying out all requirements and arguments regarding TPD benefits.  The E/C had argued that the claimant did not fulfill its burden of proving "causal connection" between the loss of income and her compensable injuries.  Here, the claimant's injuries prevented her from performing her pre-injury employment, no longer earning her salary, and her earnings were reduced to $0.  Although the Employer accepted compensability of Claimant’s accident and injuries, it did not offer or secure modified work appropriate to her restrictions or furnish any reemployment services to assist her in finding alternate work during her period of medical recovery. While Claimant was still healing from her compensable injury, and still precluded from performing her pre-injury job, her employment was officially terminated as the consequence of a permanent lay-off involving Claimant and approximately 1,200 other employees. The E/SA then denied TPD benefits on the basis that Claimant’s loss of earnings was not causally related to her workplace injuries but, rather, was caused by the corporate downsizing.  The Court decided to then clarify what is the necessary legal standard for TPD benefits pursuant to section 440.15(4), Florida Statutes (2007).  

TPD benefits are calculated by the carrier based on the extent to which the employee’s post-injury earnings fall below his pre-injury average weekly wage. If an employee does not have post-injury earnings, the first installment of TPD benefits "is due no later than fourteen . . . days after the date of the employee’s medical release," based on $0 earnings. Fla. Admin. Code R. 69L-7.01915(2)(a). Thus, a claimant need only prove a causal connection between the injury and the loss of income. The burden "is clearly on the claimant to connect the economic disruption to the compensable" injuries.

Here, Claimant established to the JCC’s satisfaction that, as a result of her workplace injuries, she was unable to successfully perform the tasks of her pre-injury job, which directly resulted in a cessation of the performance of that employment and an attendant reduction of her income to $0. Obviously, this meant that she was able to earn less than 80% of her AWW. Consequently, she established prima facie entitlement to TPD benefits. Simply being able to work and search for work, however, is not the economic equivalent of an earning capacity. Because Claimant met her initial burden of proving a causal relationship between her injuries and loss of wages, the E/SA’s assertions as to Claimant’s potential (but unsubstantiated) earning capacity in excess of her actual ($0) earnings are more accurately characterized as an affirmative defense such as "voluntary limitation of income" or "deemed earnings," and do not militate against the JCC’s reliance on the preliminary causal relationship established by Claimant. Once a claimant meets her "initial burden of establishing a prima facie showing of a causal connection between the compensable injury and the subsequent loss of income, the burden shifts to the [E/SA] to prove that during the period in which wage loss benefits are claimed, the claimant refused work or voluntarily limited [her] income."

 The Court then discussed affirmative defenses.  Although the express "voluntary limitation of income" defense has been removed from the statute, section 440.15(4)(a) "pins remuneration on what the employee ‘is able to earn’ post-injury. Here, the E/SA neither introduced evidence of a job offered or procured for Claimant, nor otherwise established a quantifiable earning capacity by which the JCC could reduce the TPD benefits otherwise payable during Claimant’s temporary recuperation from her injuries. Accordingly, the JCC did not err in rejecting the E/SA’s "voluntary limitation of income" defense in this regard. If the E/SA sought to establish Claimant was "able to earn" an amount greater than her actual earnings, the E/SA, not Claimant, bore the burden of proving so.  The E/SA also alleges error because the JCC found that Claimant’s termination from employment was due to no fault of her own. Although Claimant’s job was eliminated for reasons unrelated to her injury, Claimant was displaced from this employment (and other similar jobs) and its corresponding wages as a result of her inability to perform the functions of the job before, during, and after the mass lay-off.  Thus, based on the facts presented here, Claimant’s termination did nothing to change the causes of her wage loss; nor did it create an appreciable wage-earning capacity, as the E/SA suggests.  

TPD is a classification of benefits designed for those circumstances where the accident-employer cannot, or will not, accommodate the recuperating worker who has been displaced from her pre-injury job and wages as a result of a workplace injury. The fact that an employer cannot afford to provide the recuperating worker modified work does not, under the statutory scheme, provide the basis for a defense. Accordingly, because competent substantial evidence supports the JCC’s finding that Claimant did not leave her employment as a result of misconduct or for unjustifiable reasons - both valid legal considerations in determining an employee’s entitlement to TPD benefits under the statute - the E/SA fails to demonstrate error based on the JCC’s consideration of these factors.

As to the lack of a job search, the statute no longer requires a job search for entitlement to the reduced period of TPD benefits. An inadequate job search does not establish a lack of causation between an injury and a loss of wages, especially where such causation is affirmatively established through medical evidence demonstrating the claimant’s inability to perform her pre-injury job duties.  Although the Legislature eliminated the job-search requirement for TPD benefits, the concept of a job search has reemerged in case law addressing post-amendment dates of accidents. This reappearance has typically occurred in the context of an employee who has established a post-injury earning capacity by returning to work within her restrictions at a rate that would preclude the payment of TPD benefits, but who later becomes unemployed for reasons unrelated to the injury. In this situation, injured workers have sought to prove a causal relationship between their injuries and the subsequent period of diminished earnings by offering evidence of an unsuccessful job search. The reasoning underlying the notion that a job search might prove disability after a period of non-disability is that, even though the employee’s initial separation from employment (and attendant disruption of wages) is attributable to factors unrelated to the injury, if something additional is shown through subsequent events, she may be able to establish a causal relationship between her continued unemployment and the injuries and, if she is unable to make such a showing, the unrelated dismissal remains the cause of the lost wages. Here, the E/SA failed to establish a competing or superseding cause of Claimant’s loss of wages and accordingly, there is no basis to impose a job search requirement under the circumstances presented.

Causal Relationship Between Accident and Injury:

In CharlotteCounty Public Schools v. Gary, (1 D09-5914, July 30, 2010), the 1st DCA reversed the award of hearing aids and attorney's fees pertaining to that award.  The JCC rejected the treating physician's opinion regarding the pre-existing nature of the hearing loss because they were based on assumptions which were found to be faulty and not borne out by medical evidence.  The 1st DCA held that the JCC's mere rejection of this testimony did not, ipso facto, establish the requisite causal relationship between the accident and hearing loss.  Claimant had to introduce evidence proving, within a reasonable degree of medical certainty, the hearing loss was causally related to the accident.  There was no such evidence. 

TPD:

In Williams v. Archer Westin Contractors, (1 D09-6078, July 30, 2010), the JCC denied TPD benefits.  The JCC found that the claimant suffered compensable injuries resulting in restrictions preventing the performing of his pre-injury job, nut not some modified work.  Claimant had not reached MMI.  There was no refusal of modified work, nor was the claimant offered modified work.  The claimant was not terminated for misconduct and did not work somewhere else and terminated.  Under the 1st DCA's ruling this month in Wyeth (decided July 7, 2010-above), the claimant was entitled to TPD benefits.

Medical Testing:

In Laxner v. Target Corp., (1 D10-1228, July 30, 2010), the 1st DCA affirmed the JCC's denial of medical treatment and modalities which the claimant's authorized treating orthopedist testified were necessary to determine the extent of the compensable injury.  Competent substantial evidence supports this denial.  The award of such care is dependent on a finding that the evaluation is reasonably requested to determine the cause and extent of the claimant's injuries.  The JCC rejected the authorized orthopedic doctor's opinion and accepted the E/C's IME that the extent and cause of the claimant's injuries were known and ascertainable and therefore diagnostic modalities requested were not needed.