WCEC 2011: The Times They Are a-Changin’

Each year, new cases change the way people view workers’ compensation and have an enormous impact on the industry as a whole. The Case Law Update, which took place Monday, August 22 at the 66th Annual Workers’ Compensation Educational Conference (WCEC), was a session provided as an arena for discussion regarding those cases and how their outcomes may influence what happens in the future.

Kemmerly Thomas, an attorney at McConnaughhay, Duffy, Coonrod, Pope & Weaver in Tallahassee, Fla., has been a member on this panel for nearly 14 years. She was one of five members of this year’s discussion-leading panel, which consists of two defense attorneys and three claimant attorneys, and was moderated by Nicole D. Ruocco, an attorney at Rissman, Barrett, Hurt, Donahue & McLain in Orlando.

“The cases that we discussed this year have extraordinary significance in comparison to previous years,” Thomas said. “This is because of the profound impact of the decisions on claims handling and case value.”

Attendees heard in-depth fact patterns and arguments from both sides. Conversation revolved around topics such as costs, advances, apportionment, attorney fees, and permanent total disability (PTD)-related issues: the everyday factors that influence litigation.

One of the cases analyzed was the controversial Lopez vs. Allied Aerofoam/Specialty Risk Services. The outcome of this workers’ compensation case established that claimants, even in denied workers’ compensation cases, are entitled to payment not exceeding $2,000 upon a proper showing. Thomas described this case as having “opened a Pandora’s box in terms of claimant requested advances and increased litigation expenses related to such requests.”

Other cases that were discussed include the Hernandez v. Palmetto General Hospital and Punsky v. Clay County Board of County Commissioners, where the topic of resulting costs and ramifications will be analyzed. In Hernandez, the claimant was able to have a dismissal order reversed, and in Punsky, the claimant’s two points of appeal were rejected. These cases have had a great impact on claim and defense viability as well as the issue of proper jurisdiction regarding enforcement of orders awarding costs.

Thomas said that no case law panel update is complete without the annual ongoing debate of “reasonable attorney fees.” Arguments raised in the Kauffman v. Community Inclusions, Inc. case were discussed, as well as the recent denial of review by the Florida Supreme Court.

Aside from conversation dealing with a variety of profound cases, attendees enjoyed a unique and lively discussion of the current PTD standards and several relevant judge of compensation claims (JCC) opinions on appeal, addressing the standards for qualification and a challenge to the 75 age cap for benefits, Thomas said.

All of this took place in additional to the panel’s yearly in-depth review of relevant case law from the First District Court of Appeal and the Florida Supreme Court. Although outcomes of cases across the country may vary, the landmark cases discussed in this breakout are paving the way for future results, impacting how all sides view workers’ compensation matters.

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