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JHH welcomes its newest attorney!

Jones, Hurley & Hand, P.A. is excited to announce the hiring of its newest associate, David Gerhardt. Mr. Gerhardt joins our Miami office location, bringing with him a wealth of experience and knowledge in the defense of worker's compensation claims.  His proven track record of taking a scholarly, well reasoned, and never hasty approach allows us to continue to expand our firm wide mission to represent insurance carriers, employers and third party administrators in the defense of worker's compensation claims, employment related matters as well as general civil litigation disputes.  

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JHH partners with Orlando Orthopaedic Center for upcoming CEU

BOO!

On October 30, 2014, just in time for Halloween, Orlando partner Derek James teams up with Dr. Travis B. Van Dyke to offer a CEU entitled "The Unseen Injury: Repetitive Trauma and Occupational Disease." For those involved in worker's compensation, addressing these types of unseen injuries can be just about as difficult as trying to prove the existence of a ghost.  The aim of this CEU is to enlighten as to handling of Repetitive Trauma and Occupational Disease claims from both a medical and defense oriented legal perspective.  

Apart from the invaluable information and CEU credits, there will be food, refreshments and raffles.  The event will be held on October 30, 2014 from 5:30 pm to 7:30 pm at the Orlando Orthopaedic Center 25 W. Crystal Lake St., Suite 200, Orlando Fl. 32806.

To attend this free event, register by October 25, 2014 at OrlandoOrtho.com/credithour.  

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THE NLRB Attack on McDonald’s

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THE NLRB Attack on McDonald’s

Amid the economic doldrums of recent times, the fast-food industry has been one of the biggest job creators. So far this year, it has added employment at a four percent rate, which stands to make this the third straight year at that pace. If only the entire economy had done so well. 

But no good deed goes unpunished. Recently, the National Labor Relations Board decided that  McDonald's will have to play by a brand-new set of rules — and if that decision stands, it could 
affect a lot of other businesses in fast food and other sectors. It's a mistake that needs to be 
reversed before it does real damage.

The ruling by the NLRB's general counsel says that McDonald's can be held liable for the 
employment decisions made in its franchised outlets, which number some 13,000 in this 
country. So if a rogue franchisee in Sasquatch Hollow violates the law on overtime or wages, 
the Oak Brook-based corporation can face sanctions.

"This decision changes the rules for thousands of small businesses, and goes against decades 
of established law regarding the franchise model in the United States," the company said. The 
National Retail Federation called it "outrageous." The Services Employees International Union 
tweeted gleefully, "HUGE victory for labor & fast food workers!"

Neither side is exaggerating. Imposing this model on McDonald's would upend a franchise 
system that has worked well for owners and consumers — and provided millions of jobs, many 
of them for people who arrive with few skills. By assigning McDonald's responsibility for wages,  hours, hiring and firing, the agency would make it far easier for labor organizers to turn all these restaurants into one big union shop. Local McDonald's owners would see their wages set via a  union contract negotiated by faraway corporate executives.

The NLRB takes the view that the company has so much control over the operations of its 
franchises that it might as well own them. But it's a hard case to make. Franchise owners decide how many workers to employ, do the hiring, set each employee's pay, hours and duties, fire those who don't work out, and more. Franchising is common in all sorts of businesses, from real estate to autos to hotels. It has spread because it has proven its value in a competitive 
marketplace.

"The franchise business model is predicated on the idea that franchisers do not involve 
themselves in those aspects of employment," Andrew Puzder, CEO of CKE Restaurants, which 
includes Hardee's and Carl's Jr., wrote in The Wall Street Journal. He contended the system 
works "because it allows franchisees to control costs, such as labor, and reap the benefits of 
running their businesses profitably." This change, he argues, "would essentially destroy the 
business model."

The NLRB has long recognized how the model works. But suddenly it has decided to change 
settled rules on which much of the economy has been built. The new liability would invite a 
plague of lawsuits, while forcing corporations to drastically alter their operations.

The impact is potentially huge, since more than eight million people work for franchise 
operations — 15 percent of all private sector jobs in this country. And that's leaving out the 
consequences for consumers, who are even more numerous. McDonald's alone serves 25 
million Americans every day.

Unions think they would have better luck dealing with one giant company than with thousands of individual operations, and they may be right. But the best thing for workers is a profitable, 
growing sector built on a proven system. If that system falls by the wayside, a lot of their jobs 
will go with it. 

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What happened in Miami this week?

"The purpose of a workers' compensation act is not for it to be used as weapon in an economic civil war.  Its purpose is to provide adequate compensation for on the job injuries in place of the tort remedy so as to relieve society from the costs of industrial injuries"  Padgett v. State of Florida, No. 11-13661 CA 25 (Fla. 11th Cir. Ct. Aug. 13,  2014).

Those of us who practice in Miami are accustomed to such fiery rhetoric from the bench in south Florida and on August 13, 2014 Judge Cueto of the 11th Circuit Court in Miami joined the increasing groundswell of apparent judicial frustration concluding that successive legislative sessions have so diminished medical care and wage-loss benefits that the Florida Worker's Compensation Act no longer provides a reasonable alternative to suit in civil court and violates employees' fundamental rights.  In the twenty-two page opinion, Judge Cueto reviewed the evolution of the Act originally passed in 1935 in a time when there were few state or federal sponsored social aid programs making the Act a reasonable alternative to tort litigation which allowed employees to "opt out" of coverage of the Act until the 1970 legislative session repealed that right making the Act the exclusive remedy.  Cueto stated "[t]he trade off was the Act was designed to provide fast, sure and adequate payment in exchange for the tort remedy that was cumbersome, slow, costly and which it had been legally difficult for injured workers to prevail."

The original "trade off" started to change In 1973 when the Florida Supreme Court shifted away from a pure contributory negligence doctrine where a plaintiff may be denied compensation if found negligent to any degree to comparative negligence allowing the plaintiff to recover according the defendant's degree of fault.  See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973) Because the value of  the "trade off" was now considerably more given higher expectations in plaintiff tort recovery, Cueto reasoned that the benefits under the Act should have increased substantially but instead were reduced dramatically through various legislative changes through October 1, 2003.  

Cueto concludes that because the benefits presently defined in the Act are no longer significant, the exclusive remedy violates the 14th amendment to the U.S. Constitution Due Process Clause citing specifically to the elimination of permanent partial disability benefits on October 1, 2003 without providing a reasonable replacements to these and other benefits leaving the injured worker without a reasonable alternate remedy to the tort remedy therefore making the 440.11 exclusive remedy provision constitutionally infirm and invalid. 

WHAT DOES PADGETT MEAN TO EMPLOYERS IN FLORIDA?

Clearly we are early on in the understanding of the ultimate meaning of Padgett.  This case will likely join Westphal and Castellanos which challenge similar limitations on benefits and reasonable attorney's fees.  Nevertheless, we expect the initial impact of Padgett will be venue specific to Miami until the parties exhaust the anticipated state appellate process.  The case would be appealed to the Florida 3rd District Court of Appeals which may pass the matter to the Florida Supreme Court given the existing challenges before the Court via Westphal and Castellanos. While the process may not conclude for several years, Padgett will stand as the law of that venue likely birthing similar challenges in other receptive jurisdictions.  Florida's Attorney General has 30 days to intervene and appeal.   Those employers with significant labor assets in this venue should begin preparation for a higher volume of liability claims following what would otherwise be a workers compensation claim.  That being said, the ultimate value of the Act to the injured worker is the swift provision of medical care and partial reimbursement for lost wages.   Injured workers may initially seek treatment under Medicaid as we anticipate they would demonstrate the requisite financial criteria.  Liability plaintiff's may use letters of protection to secure needed medical attention.  On a national level, some believe all eyes now turn to Florida as several other state legislatures are experiencing similar judicial attacks to current workers' compensation systems.  

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Miami attorney Michael A. Hernandez now Board Certified in Workers Compensation

Miami, Fl - Effective August 1, 2014, Miami attorney Michael A. Hernandez became Board Certified in Worker's Compensation law.  He is the only Board Certified Worker's Compensation defense attorney in Miami, Fl.  

Board certified lawyers’ experience and competency have been rigorously evaluated, and they are the only Florida lawyers allowed to refer to themselves as specialists or experts or to use the letters B.C.S. to indicate Board Certified Specialist when referring to their legal credentials. Board certification is The Florida Bar’s “Legal Expert” status.

Mr. Hernandez takes great pride in this accomplishment as it marks a significant milestone in his career as a defense attorney.  This achievement is especially significant as it was one made possible as a direct result of the knowledge gained through myriad defense claims and issues he has assisted Employers, Insurance Carriers, TPA's, PEO's, and others with throughout his career. Mr. Hernandez looks forward to continuing to represent the interests of Employers, Insurance Carriers and TPA's throughout South Florida. 

Board certification is one of the highest recognitions a lawyer in Florida can receive. The very difficult testing and extensive background peer review to confirm professional conduct is such a high standard that just seven percent of our eligible membership has achieved this level of recognition.
— — Florida Bar President Gregory Coleman

   

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Respond within 3 or 10 days or waive right to deny...

F.S.440.13(3) contains a wealth of different timeframe based triggers by which a Carrier must respond to a request for treatment from an authorized provider.  F.S.440.13(3)(d) gives the Carrier 3 business days to respond to such a request or the Carrier "consents to the medical necessity for such treatment."  

Notwithstanding, pursuant to F.S.440.13(3)(i), for claims seeking specialist consultations, surgical operations, physiotherapeutic or occupational procedures, x-rays or diagnostic tests over $1,000,00, the Carrier has 10 days to respond.  Now, here is where things get interesting. Unlike F.S.440.13(3)(d) which specifically notes that failure to respond results in a consent to medical necessity for such treatment, this section specifically lists a few exceptions where the Carrier does not have to provide such care even if not timely responded to, including where a JCC determines a consultation or procedure is not medically necessary.  

In Andino-Rivera v. Southeast Atlantic Beverage Company/Gallagher Bassett, a request was made for pain management evaluation, but following an IME, the authorized doctor rescinded the request, leaving no doctors requesting the evaluation or indicating it was medically necessary. Further, the Claimant counsel conceded that the request fit into the specialist consultation criteria of F.S.440.13(3)(i).  The JCC denied the request as not medically necessary due to no doctor requesting the evaluation any longer, but the First DCA found that the only inquiry was whether the Carrier responded timely or not.  As a result, they remanded for the JCC to answer this question and issue an updated ruling.

From a practical perspective, this reinforces for all adjusters that there is a premium on timely responding to medical requests.  This case makes it more difficult to escape waiver when a timely response is not provided.  The response need not be eloquent or verbose, merely a response of almost any kind.  Formulating standardized language which basically amounts to a maybe would be a good practice to insulate from any resulting exposure stemming from this statute and caselaw interpretation.  Additionally, arguing that other defenses such as major contributing cause still apply would also likely remain viable in the face of this recent decision.  

As always, if you face a challenging set of facts, or if you just need an opinion on how to proceed in a given claim, don't hesitate to contact one of our attorneys for assistance or guidance.  

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Assert SOL for each and every Petition for Benefits or waive it!

If you're reading this blog, you almost certainly are aware that F.S. 440.19 provides for a two year period from the date of accident to file a PFB, and beyond that, a one year period for medical or indemnity benefits, and if either such period lapses, then the statute of limitations (SOL) potentially becomes a viable defense, subject to other conditions which have evolved through interpretation of the statute and caselaw.  A key provision of this same section of the statute is that "“the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits.” (Emphasis added.)

Well, for years many, most, if not all practitioners and adjusters operated under the premise that responding to the first PFB asserting the SOL defense would satisfy this statutory requirement.  Well, the First DCA in Childers v. Clay County Bd of County Commissioners/Scibal Associates made it clear today that you need to respond to each and every Petition for Benefits filed during a period when the statute of limitations is being asserted, by specifically noting that the claim is barred by the SOL.  This is a seemingly benign, small case which could have a big impact if you are caught being unfamiliar with this new twist on the law.  I expect any and all cases out there with a pending SOL defense to see a wave of PFB's being filed in hopes of obtaining this kind of waiver of the defense.  As always, if you have any questions about this case, or any area of the law, don't hesitate to contact one of our attorneys for assistance.

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What Do the Attorney Fee Tea Leaves Reveal?

What Do the Attorney Fee Tea Leaves Reveal?  In Castellanos v. Next DoorCompany/Amerisure, the First DCA addressed a matter in which the Judge of Compensation Claims awarded Claimant's counsel an attorney's fee of only $164.54 for 107.2 hours of legal work, based upon the guidelines of F.S. 440.  The underlying fee was challenged, as so many similar fees with exorbitant hours and paltry fees have been, on the grounds the statute was unconstitutional.  The First DCA concluded that the statute was in fact constitutional, based on prior precedent...So, nothing to see here folks...

However, in a surprising final act, the First DCA nevertheless certified the following as a question of great public importance "WHETHER THE AWARD OF ATTORNEY'S FEES IN THIS CASE IS ADEQUATE, AND CONSISTENT WITH THE ACCESS TO COURTS, DUE PROCESS, EQUAL PROTECTION, AND OTHER REQUIREMENTS OF THE FLORIDA AND FEDERAL CONSTITUTIONS" (No emphasis added)

As a result, there is considerable uncertainty as to whether the Florida Supreme Court will simply affirm the attorney fee statute as is, declare it unconstitutional in whole or in part, or otherwise alter the statute.  Speculating on the outcome offers about as good a chance of being right as one would get playing blackjack, but suffice it to say, if you have an attorney fee matter outstanding in a matter which would currently be regulated by the statutory fee regimen, it is highly advisable to try and resolve it before the Florida Supreme Court potentially changes it to an hourly fee case for the Claimant's attorney.

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