It was dueling lawyers at the annual Workers' Compensation Educational Conference in Orlando in mid-August. The packed session was moderated by Attorney-State Mediator Stuart S. Suskin of Gainesville, Fla., who offered four Hot Topics for discussion: fraud, major contributing cause, permanent total disability, and Florida's Emma Murray v. Mariner Health/Ace USA case. It was — not surprisingly — the Murray case that got the most play and prompted some of the best quotes.
The panel members facing off were:
- Defense Attorney Susan N. Marks of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., in Pensacola, Fla.
- Defense Attorney Dawn R. Traverso of Eraclides, Johns, Hall, Gelman, Johannessen & Goodman, LLP, in Aventura, Fla.
- Claimant Attorney Michael D. Rudolph of Harris, Guidi, Rosner, Dunlap, Rudolph, P.A., in Jacksonville, Fla.
- Claimant Attorney Glen D. Wieland of Wieland, Hilado & DeLattre in Orlando
Suskin posed the question, "Is Emma Murray dead?" encouraging the panel members to freely weigh in — and they did.
"First time I ever saw a workers' comp bill swapped for a cigarette tax," Wieland declared, referring to lawmakers' actions during the 2009 legislative session. In Murray, the Florida Supreme Court ruled in October 2008 in favor of the claimant and found that a judge can determine reasonable hourly attorney fees for claimant attorneys. However, during its Spring 2009 session, the Legislature deleted the word "reasonable" from the statute. Suskin asked if panel members thought there now was an argument that the statute is unconstitutional on its face.
"Absolutely," said Rudolph. "And that is exactly what is going to be argued in upcoming cases. There was no real academic discussion about the removal of attorney fees and the word 'reasonable.' This was politics at its worst. It was vote swapping between the House and Senate. People say you should never watch laws or sausage being made, and they are right. It was really disturbing to see this at work. Carriers should be careful what they ask for. This time around, certainly the constitutionality is going to be addressed. When they look at this, I am reasonably certain that this court is going to go our way" [on the "reasonable" fee issue].
"I can't envision the court ever saying there should be 'unreasonable' attorney fees," Wieland said in agreement. "Courts have historically said nationwide that fees cannot be too low, because that will destroy the system, and also that they cannot be too high. The fee has to be 'reasonable.'"
Wieland reminded attorneys that for fees "after July 1, 2009, [the effective date of the legislation] if you have tremendously high benefits, you will get your fee based in percentages." Offering candid insight into his current fee policy, he advised the audience that "if you don't have high benefits in a case but do have high hourly fees, put your bill in a safe deposit box and let it sit until the court rules. Wait until we get this law straightened out. If I don't have a lot of hours, I may resolve the fee now. But if the carrier ran me through the wringer and I have a lot of hours, I am going to let it sit."
The panel also discussed the ever-present dilemma of workers' compensation fraud — "Watch the 'F' word," Suskin advised — and debated hypothetical cases of major contributing cause and permanent total disability.
But it was an actual case, Garcia v. Fence Masters and AIG Claims Services that prompted the liveliest discussion, perhaps because of its timeliness. The First District Court of Appeals rendered its decision on the case on Aug. 6.
The background, according to the case filing: Reinaldo Garcia was a fifty-nine-year-old welder with limited education, who suffered a compensable injury to his left shoulder. He is fluent in Spanish, but cannot speak, read, or write in English. All of the physicians opined that he was permanently limited to sedentary or light work and could not return to his previous occupation. Instead of utilizing the statutorily mandated re-employment and rehabilitation provisions, the employer/carrier hired Richard Lopez, a vocational expert. Two days prior to the final hearing regarding Garcia's PTD benefits, Lopez performed a "labor market survey" by looking for job listings in the newspaper and on the Internet. Lopez testified he found ten jobs purportedly within Garcia's physical restrictions and within fifty miles of his home. He further testified that the employer/carrier instructed him not to assist Garcia in finding work, but simply to identify positions within Garcia's "physical limitations." During cross-examination about the actual vocational, physical, and educational requirements of the jobs included in the labor market survey, Lopez admitted he had no knowledge as to such information. Lopez also testified that he performed a transferable skills analysis and, in essence, could not identify any skills possessed by Garcia that would transfer to lighter work. Garcia's side hired a vocational expert who testified he investigated the jobs identified by Lopez and all of them had physical, vocational, and/or educational requirements that exceeded Garcia's abilities. The Judge of Compensation Claims (JCC) found Lopez's testimony more persuasive and denied PDT benefits to Garcia, who then appealed. On Aug. 6, the appeals court reversed and remanded for proceedings that decision.
Panel members noted the new ruling sent a clear message to employers/carriers. "The courts have said you cannot just use the want ads to show jobs are available," Suskin declared. "Employers/carriers have to take the initiative. We have to look at this from the individual employee perspective. It has become a more subjective test."
"The employers/carriers can't just sit back," agreed Traverso. "They have to affirmatively do something. It is not in the statute, but in the cases coming out, it is clear that the [judges and courts] expect employers/carriers to be proactive. They must vigorously do something."
"The employer/carrier has the burden of proof," concurred Marks.
"You cannot look at a PTD claim in a generic way, and you cannot defend a PTD case in a generic way," Rudolph agreed.
"I thought the judges were a little irritated with the lawyers on this case," Wieland noted. "I think this court is saying it will not re-weigh evidence on appeal. If you don't present good evidence to the JCC, the appellate court is not going to re-weigh it."
In other words, get it right the first time.
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