Monday, February 15, 2016

Workers' Compensation: Update on Pending Cases Before the Florida Supreme Court

By Anthony V. Cortese

       At the time this article was written, major issues in state workers’ compensation appeals were still pending before the Florida Supreme Court. All section members who have their email addresses registered with the HCBA workers’ compensation section will receive an email alert when each of those decisions is released. In the meantime, tensions are rising with the Florida Supreme Court’s grant of certiorari review in Stahl v. Hialeah Hospital, and major changes to the procedural rules governing Longshore and Defense Base Act claims and case law interpreting those acts are affecting specialists who practice in that field.

In Stahl v. Hialeah Hospital, 160 So. 3d 519 (Fla. 1st DCA 2015), the First District Court of Appeal argued that the 1994 addition of a $10 copay for medical visits after the claimant attains maximum medical improvement and the 2003 elimination of permanent partial disability benefits made the workers’ compensation law an inadequate exclusive replacement for a tort action. The Florida Supreme Court’s decision to grant certiorari review in Stahl could have significant implications for the two other workers’ compensation cases pending before the Florida Supreme Court: Westphal v. City of St. Petersburg and Castellanos v. Next Door.

By way of contrast, the Longshore Act and Defense Base Act provide generous medical and indemnity benefits without the limitations of Florida workers’ compensation statute. 33 U.S.C. §§ 907 and 908. But those acts do not permit the claimant to avoid exclusivity or immunity issues. Munn v. Kerry, 782 F.3d 402 (9th Cir. 2015) (holding that family members of three security guards kidnapped and murdered in Iraq could not pursue tort actions in civil court because those claims are precluded by the Longshore and Defense Base Acts). And recent decisions under the Longshore Act continue to make it more difficult for a claimant to obtain attorney fees from an employer or carrier under section 28(a). 33 U.S.C. § 928(a).

By providing minimal initial medical care, an employer or carrier can avoid fee shifting under section 28(a). Asadi v. Tradesman International, 2014-LHC-01003 (March 5, 2015). But a claimant will still be able to shift his or her attorney’s fee to the employer or carrier so long as he or she satisfies all of the formal requirements of section 28(b), including an informal conference, certain District Director recommendations, and refusal by the employer/carrier to comply with those recommendations. Id. A claimant should oppose a procedural effort by the employer or carrier to circumvent this initial procedure. Rendon v. L-3 Communications, 2015-LDA-00529 (June 30, 2015).

Longshore and Defense Base Act practitioners should also note that new procedural rules became effective over the summer. The changes are substantial, including new filing and conference requirements, limitations on discovery, and other procedures for hearings. The rules are available at It has long been held that failure to follow the rules or pretrial orders hearings can support various sanctions, such as excluding certain evidence or witnesses, dismissing claims, or striking defenses. See Williams v. Marine Terminals, 14 BRBS 728 (1981) and Durham v. Embassy Dairy, 19 BRBS 106 (1986).