Tuesday, February 17, 2015

Workers' Compensation Case Law Update

By Anthony V. Cortese

Cases involving claimant’s attorney’s fees are before the Florida Supreme Court and should be decided soon. While these appeals are pending, practitioners must still monitor appellate rulings on other subjects, some of which will be addressed below.  

Oral argument was recently heard on the leading case on attorney’s fees, Castellanos v. Next Door Co., which has been joined with Diaz v. Palmetto General Hospital and Richardson v. Aramark for consideration. Resolution of this issue will determine the future of benefits for injured workers under the act. Absent a finding in favor of injured workers on this issue, many believe the only opportunity for justice for injured workers would be a ruling affirming the decision in Padgett v. State of Florida that the entire act is unconstitutional and should not prevent an injured worker from pursuing a civil action in tort against an employer.

In another case on claimant’s attorney’s fees, the First District affirmed a denial of attorney’s fees under section 57.105, Florida Statutes, in a workers’ compensation claim but reversed the denial of costs. Phillip Lane v. Workforce Business Solutions, 2014 WL 5836805 (Fla. 1st DCA Nov. 12, 2014). However, in Juan Rivas v. Oasis Outsourcing, 147 So. 3d 670 (Fla. 1st DCA 2014), the court reversed a ruling, refusing to grant a medical-only fee to be paid by the employer/carrier to the claimant’s counsel by agreement of the parties after initial litigation.

There were also two very important recent decisions on general releases and settlements.  In Flores-Orellana v. Circle-K, 2014 WL 4629209 (Fla. 1st DCA Sep. 16, 2014), a settlement agreement in a labor case was used to try to deny benefits in a workers’ compensation case. After workers’ compensation litigation was initiated, under the facts of the case, the settlement agreement was set aside in the labor case, and the carrier reinstated workers’ compensation benefits. The judge of compensation claims then refused to grant a hearing in the workers’ compensation case and was reversed on the basis that the right to have claims adjudicated is a clear, indisputable right. The mediation settlement agreement was not set aside in Taylor v. CVS and Gallagher Bassett, 2014 WL 5420690 (Fla. 1st DCA Oct. 27,2014); it was held enforceable when it contained an agreement to sign a “general release/separation of employment,” even though the parties later disagreed on the language of the general release. The lesson of these cases is do not sign settlement agreements that are not clear and specific.

In Hancock v. Suwannee Cnty. Sch. Bd., 2014 WL 5487123 (Fla. 1st DCA Oct. 31, 2014), the court ruled that the claimant cannot be required to pay the employer/carrier’s IME doctor a fee to have a videographer at an IME. The two-dismissal res judicata rule was clarified and limited in Moreno v. Palm Beach Cnty. Sch. Bd., 146 50. 3d 530 (Fla. 1st DCA 2014). The right to an advance of $2,000 was clarified and upheld in Bonner v. Miami Dade Public Sch., 148 So. 3d 152 (Fla. 1st DCA 2014).

The ruling in Guerra v. C.A. Lindman, Inc., 146 So. 3d 527 (Fla. 1st DCA 2014), clarified the limitations on appointment of an expert medical advisor, ruling that the only issues that can be submitted to an advisor are issues where there is current conflicting evidence of a “disagreement in the opinions of the health care providers” regarding an issue in dispute.