Update - Spring 2015 issue

Transcription

News
The official newsletter of the Florida Association of Self Insureds • Spring 2015
Message from the President
By Dean M. Painter ([email protected]), WW Gay Mechanical Contractor Inc.
As summer nears, so does our
46th Annual Educational Conference & Trade Show at the beautiful Ritz Carlton in Naples, Florida.
Our conference theme is “Back to
the Future” and the dates are July
19 to July 22, 2015.
Our website www.fasi-fl.org contains all the information you need
about our conference, and provides
an opportunity to register online,
sign up as an exhibitor and review
the various sponsorship opportunities available. Our block of rooms
at the Ritz tends to sell out quickly,
and our exhibit hall sells out every
year. Please don’t hesitate! After
our successful roll-out of sponsorships at our Winter Conference, we
have added several new sponsorships for the Summer Conference,
including conference sponsorships,
golf tournament sponsorships and
advertising opportunities. In all,
there are plenty of opportunities to
support FASI and promote your organization in Naples.
In this newsletter you will find
the detailed agenda for the conference, which provides a blend of new
speakers as well as some of our
favorite speakers from past conferences. The speaker sessions were
chosen by you, our members, at the
Winter Conference. I know you’ll
enjoy our various topics, speakers
and speaker panels.
Thanks to
Josiah Pritchard of the Mayo Clinic,
for chairing the summer conference
and organizing the agenda.
In 2015, FASI has begun a series of sponsored webinars. We
plan to have four webinars in 2015
to educate our members regarding
various ‘hot topics’ related to workers compensation. Our first webinar was held on May 6th, and the
topic was ‘Keeping Up With Medicare – How New MSP Changes Impact Self-Insurers’. Special thanks
to Mark Popolizio (ISO Claims Part-
ners) and Rafael Gonzalez (Helios)
for leading our first webinar. Our
next webinar is scheduled for June
25 and will feature a legal update
with Scott Miller of Hurley, Rogner,
Miller, Cox & Waranch, P.A.
Enjoy our newsletter with updates on employment law, workers compensation law, legislative
updates and information about the
46th Annual Summer Conference &
Trade Show.
We will see you in Naples!
JUNE WEBINAR:
What are the Courts Saying?
How Recent Court Rulings Impact Florida Self-Insurers
June 25, 2015 • 10-10:45 a.m.
Over the past few months, several major court rulings have been issued
addressing a number of important claims issues. These rulings will have a significant impact on workers’ compensation claims going forward.
In this session, Scott Miller dissects these court rulings, what they mean,
and how they impact everyday claims handling.
The topics to be addressed include: Major Contributing Cause; 120 day
rule; Attorney Fees – Dismissing Older Claims; Practical Claims Impact; and
Questions and Answers.
Presenter:
Scott B. Miller, Esquire
Florida Bar Board Certified, Workers’ Compensation Claims
Hurley, Rogner, Miller, Cox & Waranch, P.A.
California Court Says
Staffing Agencies Can’t
Self-Insure Workers’ Comp
By Don Jergler (Insurance Journal, May 12, 2015)
A California Court of Appeals has
upheld the state’s decision to exclude
temporary staffing agencies from selfinsuring for workers’ compensation, a
ruling that upholds one of the provisions
in the state’s sweeping workers’ comp
reform law passed in 2012.
The Court Of Appeal issued its
ruling in a case that had one of the
state’s largest temp agencies and the
Department of Industrial Relations
squaring off against each other.
The ruling upheld a trial court’s
finding that disagreed with Irvine,
Calif.-based Kimco Staffing Services
Inc.’s claims that temp agencies are
being treated differently than other
companies.
Kimco alleged that the state is violating its Fourteenth Amendment right
to equal protection.
However, the appellate court denied the appeal, noting “a rational basis
exists for treating” staffing companies
differently from other employers with
respect to self-insurance.
Senate Bill 863, the workers’ comp
reform bill passed in 2012, prohibits
temporary services employers and
leasing employers from self-insuring
their workers’ comp.
The court reasoned that the Legislature included this prohibition because these companies “can dramati-
cally change the scope of their workers’
compensation risk by adding new clients and new employees, but the selfinsurance deposit would not be adjusted until the subsequent year.”
Defendants, who were represented
by DIR attorneys, argued that when a
self-insured employer’s security deposit is insufficient, the obligation for the
loss falls on the Self-Insurers’ Security
Fund and other self-insured employers
could be charged a pro rata share of
the funding to meet the obligations of
an insolvent self-insurer.
Not much is known for the reasoning behind some of the language in SB
863. The law was hammered out between labor and a few large employers. The process of getting SB 863
drafted and through the Legislature
was largely a 12th hour, backdoor affair.
Insurers weren’t involved in the talks,
which were kick-started by Gov. Jerry
Brown and overseen by the DIR. SB
863 established a system of independent medical review, addressed lien
payments and raised permanent disability payments.
The case is Kimco Staffing Services Inc. et al. v. The State of California
et al., case number B257258, in the
Court of Appeal of the State of California, Second Appellate District.
Are you ready to Go
Back to the Future?
Look on page 4 for
all the details!
FASI News • Spring 2015 • 2
FASI Board
of Directors
President
Dean M. Painter
WW Gay Mechanical
Contractor, Inc.
Vice President
Josiah D. Pritchard, MHA
Mayo Clinic
Secretary/Treasurer
Marisa Martinez
Tampa General Hospital
Past President
Ed Shaw
Caspers Company/McDonald’s
Directors
Beverly Adkins
Johns Eastern Company
Judy Boling
Florida Sheriffs Risk
Management Fund
Richard Hayes
Midwest Employers Casualty
Company
Scott B. Miller, Esq.
Hurley Rogner Miller Cox
Waranch & Westcott PA
Gail Shuffler
City of Tallahassee
Michael P. Spellman, Esq.
Sniffen & Spellman, P.A.
Susan E. Theis
Commercial Risk
Management Inc.
Director Emeritus
Claude D. Revels
JM Family Enterprises
Executive Director
Lynn Hupp
Florida Association of
Self Insureds
222 S. Westmonte Dr., Ste. 101
Altamonte Springs, FL 32714
www.fasi-fl.org
Can Health Care Costs be Reduced by
Self-Insurance Paired with a Defined
Contribution Plan?
By Joseph Berardo Jr. (reprinted from Business Insurance)
New health care plan models
brought about by the health care reform law are challenging employers to
find options to rein in costs. Joseph Berardo Jr., CEO of health care services
company MagnaCare, discusses how
self-insuring health care and moving
toward a defined contribution model
can help curb spending.
In the battle against rising health
care costs, employers are seeking new
ways to seize control over the cost and
management of their health benefits. At
the same time, health care reform has
triggered a major shift from the employer-driven payer model to a model that
involves and engages plan members.
Self-insurance is viewed by many
as a key strategy for curbing rampant
health care costs. This approach enables employers to exert a higher level
of control over plan design than traditional fully insured plans typically allow.
In the past, large employers have
been much more likely to self-insure.
Faced with mandates to provide richer
benefits with less cost-sharing, however, a growing number of small and
midsize employers also have opted to
self-insure. It is estimated that the average self-insured plan covers 300 to 400
employees and that 59% of U.S. companies self-insure part of their health
care plan.
Furthermore, the availability of
private exchanges has prompted employers to take strong interest in a defined contribution arrangement. In this
model, employers give a set amount of
money to employees, who then choose
a health plan from participating payers
on a private exchange. This industry
change echoes similar moves over the
past few decades from employer-managed retirement plans to employee-directed 401(k) plans.
Employers can take advantage
of these strategies — and curb health
care costs —by focusing on four key
features of self-insured plans:
• Control over plan design
• Cost reduction
• Transparency
• Health consumerism
In the health care reform era, these
factors are critical for long-term business sustainability.
Control over plan design
Switching to a data-driven selfinsured plan puts the power back into
employers’ hands. Besides having fewer requirements imposed on them by
the federal health care law compared
with fully insured plans, self-insured
plans enable employers to access their
own health population data, including
prescription claims data. This allows
them to understand plan health risk
and gain insight into potentially catastrophic conditions in their employee
population.
Based on population data, employers can identify high-cost, high-risk
chronic conditions such as diabetes
and cardiovascular disease, tweak
plan designs and launch prevention
campaigns to mitigate risk.
Targeting health issues that specific members can be identified under,
rather than simply implementing a general health and wellness program, is
essential for cost control. By partnering
with health care service companies and
provider groups, employers are taking
advantage of deep discounts and giving employees greater access to coordinated care. Within this model, health
care data analytics play an important
role, providing information relevant to
population health management, such
as determining the chances of a relapse, the likelihood of noncompliance
and the progression of chronic disease.
Cost reduction
Self-insured employers pay for individual employee health claims out of
cash flow rather than as a monthly fixed
premium to a health insurer. Costs are
based on actual health care services
as they occur and only if they occur.
Self-insuring eliminates health insurer profit margins and risk charges. It
also provides the kind of practical and
economic advantages that curb costs,
such as generating as much as 3% immediate savings by being exempt from
the federal health care law’s health insurance tax.
Many employers mitigate the financial risk of self-insurance by purchasing stop-loss insurance, which limits
risk for specific and aggregate claims,
and provides a crucial financial buffer
when, for example, an employee is diagnosed with cancer.
Transparency of claims data is
one of the biggest advantages of selfinsured plans. Companies that partner
with a health care services company
can gain access to detailed medical
claims and pharmacy costs — information that is vital for curbing costs and
altering member behavioral patterns.
Data analysis serves as the backbone
of benefit strategies, including wellness, disease management and productivity programs, which can reap direct savings.
Health consumerism encourages
patients to take ownership of their own
health education and decision-making,
with an emphasis on prevention of
chronic disease. Defined contribution
is the new frontier in this movement
by further empowering employees to
make decisions from a wider array of
choices, including options to pay higher
premiums for richer benefits or lower
premiums for higher-deductible plans.
As more employers lean toward
defined contribution plans, they will
have the opportunity to reduce health
premiums by up to 50% in some markets. This model caps costs, and em-
Continued on page 9
3 • Spring 2015 • FASI News
Do you want to go
back to the future?
Only one way to get there...please join us at the FASI 46th Annual
Educational Conference & Trade Show, July 19-22, 2015, at the Ritz
Carlton Naples, Naples, Florida!
For more information and to register today, please visit www.fasi-fl.org
The Ritz Carlton Naples
280 Vanderbilt Beach Road
Naples, FL 34108
FASI Discounted Rate: $167/night + tax
Call Reservations at 1-888-856-4380 and ask
for the FASI Discounted Room Rate
(Available until Friday, June 12, 2015)
Preliminary
Program
FASI 46th Annual Educational
Conference & Trade Show
July 19-22, 2015
Ritz Carlton Naples
Naples, FL
Sunday, July 19
7:30 am - 8:00 am
Golf Check-In
8:00 am - 2:00 pm
Bethan Hyde Annual Golf Classic
12:00 pm - 4:30 pm
Exhibitor Move-In
5:00 pm 7:30 pm
Registration Desk Open
6:00 pm - 7:30 pm
Welcome Reception with Exhibitors
Monday, July 20
7:30 am - 3:45 pm
7:45 am - 8:30 am
Breakfast with Exhibitors
8:30 am - 9:00 am
Session 1: Opening Remarks/Business Meeting
9:00 am - 10:00 am
Session 2: Connected Care
10:00 am - 10:15 am
Refreshment Break
10:15 am - 11:15 am
Session 3: Future Trends in Rehabilitation
11:15 am - 12:15 pm
Session 4: Living in the Present
12:15 pm - 2:00 pm
Exhibitor Trade Show Luncheon
2:00 pm - 3:00 pm
Session 5: A View from the Bench
3:00 pm - 4:00 pm
Session 6: FSIGA Update and the State of Workers Comp in Florida
Tuesday, July 21
7:30 am - 12:30 pm
7:45 am - 8:15 am
Continental Breakfast
8:15 am - 9:15 am
Session 7: Legislative Updates
9:15 am - 10:15 am
Session 8: Medicare Strategies and Solutions to Reduce Costs
10:15 am - 10:30 am
Breakfast with Exhibitors
10:30 am - 11:30 am
Sesison 9: Opt Outs for Workers Compensation
11:30 am - 12:30 pm
Session 10: Employer-Based Injury Prevention Programs
12:45 pm - 2:45 pm
FASI Board of Directors Meeting
6:30 pm - 11:30 pm
FASI Casino Dinner Party
Visit www.fasi-fl.org for more information and to register online!
46th Annual Educational Conference & Trade Show
The Ritz Carlton • Naples, FL • July 19-22, 2015
Please complete and return this form with your payment to FASI Headquarters, 222 S. Westmonte Dr, Suite 101,
Altamonte Springs, FL 32714; Fax: 407-774-6440 (Credit Card Payment Only); or email: [email protected]
Full Conference Registration Rates (Includes all
general session, Welcome Reception, Exhibitor Trade Show &
Buffet Luncheon, the Dinner & Casino Party, handout materials,
and the opportunity to network and learn from your peers).
Before 6/5/2015 After 6/5/2015
or Onsite
FASI Member/Spouse/Guest…………$400.00………$475.00
Non-Member/Spouse/Guest…………$600.00………$675.00
Daily Rate (Does not include admittance to Welcome
Reception, Exhibitor Trade Show or Dinner/Casino Party – those
tickets must be purchased separately)
Monday…………………………………..$275.00………$275.00
Tuesday……..……………………………$275.00...…….$275.00
Additional Tickets
(You must register for the conference to purchase
additional tickets)
Member
Welcome Reception
Exhibitor Trade Show & Luncheon
Dinner & Casino Party (Adult)
Dinner & Casino Party (Child 12-18)
Dinner & Casino Party (Child Under 12)
Non-Member Qty
$55.00
$70.00
$100.00
$55.00
$20.00
$80.00
$100.00
$130.00
$80.00
$30.00
_____
_____
_____
_____
_____
*Registration for a FASI event is
required to receive the conference
room rate at the hotel
* Only WRITTEN or FAXED
cancellations will be accepted;
however, since we are committed
to the hotel for your meals and
refreshments, plus meeting space
and equipment rental, an
administrative fee of $100.00 per
person will be charged for any
cancellation received by May 29,
2015. NO REFUNDS WILL BE MADE
AFTER MAY 29, 2015. If registrant fails
to appear at the Conference or
fails to cancel, payment in full is
required.
*FASI federal tax ID: 59-2192394
Emergency Contact Information
Name: _____________________
Phone:_____________________
Relation:____________________
Total Fees Enclosed $__________
PLEASE USE ONE FORM PER PERSON
 Check enclosed payable to FASI for $_______
Name & Title: _____________________________________
Credit Card:
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Account #: ___________________________________
Organization: ______________________________________
Exp Date: ____________________________________
Mailing Address: ___________________________________
Cardholder’s Name: __________________________
City, State, Zip: ____________________________________
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Telephone: ________________________________________
Billing Address:  Same As Above
Fax: _______________________________________________
Address: _____________________________________
Email:______________________________________________
City/State/Zip: ______________________________
 Master Card  Visa  Amex
SUNDAY, JULY 19, 2015 • TIBURON GOLF CLUB • 2620 TIBURON DRIVE • NAPLES, FLORIDA
CHECK-IN AT 7:30 AM • SCRAMBLE START AT 8:00 AM
DEADLINE TO PARTICIPATE: JUNE 19, 2015 • NO REFUNDS AFTER JUNE 19, 2015
goLF oUTing FeeS per perSon: r On or Before June 5, 2015 - $125.00
r After June 5, 2015 - $175.00
Player #1: __________________________________________________________________________ FASI Member? r Yes r No
Company Name: _____________________________________________________________________________________________
Address: ___________________________________________________________________________________________________
City/St/Zip: __________________________________________________________________________________________________
Phone: ____________________________________________________ Fax: _____________________________________________
Cell: ____________________________________________________ Email: _____________________________________________
You do not need to have a foursome to register — we will gladly assign you to a foursome.
r Please assign me to a foursome.
r My foursome will include me and:
Player#2: __________________________________________________________________________________________________
Company: ____________________________________________________________Phone: ________________________________
Player#3: ___________________________________________________________________________________________________
Company: ____________________________________________________________Phone: ________________________________
Player#4: ___________________________________________________________________________________________________
Company: ____________________________________________________________Phone: ________________________________
paYMenT MeThoD:
ToTaL aMoUnT: _________________________
r Check enclosed r Visa r MasterCard r AmEx
Account # ________________________________________________________ Exp. Date: ________________________________
Cardholder’s Name: ____________________________________ Signature: ____________________________________________
Credit Card Billing Address: r Same as Above
Address: ___________________________________________________________________________________________________
City/State/Zip: _______________________________________________________________________________________________
DEADLINE TO PARTICIPATE: JUNE 19, 2015. NO REFUNDS AFTER JUNE 19, 2015.
SenD coMpLeTeD ForM To:
Florida Association of Self Insureds, 222 S. Westmonte Drive, #101, Altamonte Springs, FL 32714
Phone: 407-774-7880, Fax: 407-774-6440 (credit card orders only)
FASI Federal Tax ID# 59-2192394
For additional information, please contact FASI at [email protected] at 407-774-7880.
46th Annual Educational Conference & Trade Show • July 19-22, 2015 • Ritz Carlton Naples • Naples, Florida
1. Company Information (As it should appear in the print materials - i.e., Guide to the Meeting) (PLEASE PRINT)
Company Name _________________________________________________________________________________________________________________
Street Address ____________________________________________________________________________________________________________________
City/St/Zip ________________________________________________________________________________________________________________________
Website __________________________________________________________________________________________________________________________
Main Telephone __________________________________________________________________ Main Fax: ______________________________________
2. Primary Contact Person (PLEASE PRINT)
Primary Contact Name: _____________________________________________________Primary Title _________________________________________
Primary Telephone __________________________________________________________Primary Fax _________________________________________
Primary Email _____________________________________________________________________________________________________________________
*Early rates are available until Friday, May 29. After this date, regular rates will apply.
3. Exhibitor Showcase Fees
r Showcase – Member Early .................................................................. $550
ELECTRIC/INTERNET NEEDED:
r Showcase – Member Regular............................................................. $700
r Showcase – Non-Member Early ......................................................... $650
r
Electrical Power Needed (Additional cost will apply)
(book through hotel)
r Showcase – Non-Member Regular .................................................... $800
r
Internet Connection Needed (Additional cost will apply)
r Showcase & Conference – Member Early ....................................... $675
(book through hotel)
r Showcase & Conference – Member ................................................. $750
r Showcase & Conference – Non-Member Early ............................... $775
DOOR PRIzE
r Showcase & Conference – Non-Member ........................................ $850
r *Showcase Only - Additional Rep(s) ________ @ $100 each ..$________
r We will provide: ______________________________
TOTAL
$________
Name of Representatives
City/State
Email
1. _________________________________
___________________________________
__________________________________________________
2. _________________________________
___________________________________
__________________________________________________
3. _________________________________
___________________________________
__________________________________________________
4. _________________________________
___________________________________
__________________________________________________
*Exhibitor participation: Two complimentary representatives per booth. $100 per additional representative for the Showcase only.
4. Payment (All applications/contracts submitted must include full PAYMENT. (Check applicable boxes)
AmEx# ___________________________________________________ Visa/MC # ____________________________________________________________
Exp. Date ______________________________________ Amount to Charge: $ _____________________________________________________________
Name of Cardholder ________________________ Signature of Cardholder _____________________________________________________________
Credit Card Billing Address r Same as above
Address ___________________________________________________ City/St/Zip _____________________________________________________________
Exhibit space will be assigned by FASI using the following criteria: level of sponsorship, date paperwork was received, competing companies, and longevity of FASI membership. You will be notified of your exhibit space before the Conference. We try to keep competitors
separated when assigning exhibit space. Please list companies you prefer not to be near: ___________________________________________
___________________________________________________________________________________________________________________________________
6. Acceptance of Binding Contract for Commercial Support
We agree to all of the Terms and Conditions for this event. This application is made by the undersigned, an authorized signatory of the
above-listed company, and constitutes a binding contract with FASI. FASI reserves the right, in its sole and absolute discretion, to refuse
exhibit space to any applicant, or to revoke the right to display and to eject from the exhibit hall (or any other area over which FASI
exercises control), any person, business, exhibit or other exhibitor property.
Name: __________________________________________________________ Title: _____________________________________________________________
Signature: ______________________________________________________ Date: _____________________________________________________________
No refunds will be made after Friday, May 29, 2015. A $100 administrative fee will be assessed for all refunds made before May 29, 2015.
SEND COMPLETED FORM TO:
Florida Association of Self Insureds, 222 S. Westmonte Drive, #101, Altamonte Springs, FL 32714
Phone: 407-774-7880, Fax: 407-774-6440 (credit card orders only) • FASI Federal Tax ID#: 59-2192394
OFFICE USE ONLY: Booth #:________________________ Date Received:_________________ Conf. Letter Sent on:_______________________
Doc. Date: March 2015
Workers’ Comp
Annual Report
2014 Notes
By Justin A. Wiley, CPCU, RMPE,
Gallagher Public Sector
1. Florida and Texas are among two most populous
states that have private markets providing majority
of coverage.
2. Reforms to § 440.34 which affected attorney’s fees
provision – a significant factor in decrease of rates
since 2003.
3. Medical cost drivers (Prescription drugs, hospital
outpatient, and surgical centers) noticeably higher
in Florida compared to peer states.
4. Since 2003, rates have decreased 64.7% as of
7/1/10.
5. 5.2% aggregate decrease in rates for 2015.
6. Before reforms, Florida had highest rates in the US.
Florida currently sits at 27th highest rating structure
among all states.
7. Florida Workers’ Compensation Joint Underwriting Association represents a small percentage of
the overall market in Florida and compared to peer
states. (Representative of a strong private market;
which is good.)
8. PEO industry is growing rapidly.
9. Alternative rating plans such as Large Deductible,
Retrospective Rating, and Dividend Plans becoming more popular for medium-to-large organizations.
Largest Workers’ Compensation carriers
in the State of
Florida.
Florida is performing well from a loss standpoint.
Should bode well for years to come from a consumer’s
perspective. Competitive loss ratios will encourage
more competitors and eventually more competitive options/rates.
Can Health Care
Costs be Reduced...
Continued from page 3
ployers are able to eliminate a certain amount of benefits administration, which would be automated through the health
care exchange.
Employers who want to make the change will need to
fully understand how it will affect their bottom line, as well as
how to best make the transition, design the plan and discern
which of the available private exchanges best matches their
needs. They should also understand how a defined contribution plan affects their employees. Education, communication
and change management will be critical for success. Currently, about 150 million employees receive a defined contribution from a self-insured or commercial plan.
Like self-insuring, defined contribution arrangements enable employers to get a better handle on health care costs.
Employees are given more insurance options and incentive
to purchase less expensive, less comprehensive coverage,
while employers benefit from predictable health care costs.
Down the road, private exchanges that preserve a selfinsured group model may become a key strategy for employers that want to maintain some control and customization.
Preparing for the new opportunity
The market is gaining a better understanding of selfinsurance and how health benefits now revolve around the
idea of ownership: Individuals have more choice, but also
assume more responsibility for managing their own health
benefits. This represents quite a shift over past decades’
mindset where the employer played much more of a “parent
role” and decisions were largely made for the employees.
Large employers self-insure to gain control over benefits
and lower costs. Smaller businesses want these same advantages and also recognize that by self-insuring they can
avoid new health care reform requirements, such as providing richer benefits, and pricing rules that could increase
costs for groups of healthy workers.
At the same time, the concept of defined contribution
through private exchanges is gaining ground as an effective way for employers to cap costs, and continue to offer
benefits rather than setting employees adrift on the public
insurance exchanges.
Ultimately, employers are seeking and finding new ways
to stabilize rates, keep management of health care dollars
in-house, gain the tools they need to help shape the health
and wellness of their employees, and determine the future
of their company.
Joseph Berardo Jr. is CEO of MagnaCare, an administrator of self-insured health plans for employers in New York
and New Jersey. He can be reached at jberardo@magna
care.com and 212-867-3606.
Summary of Bills that Passed in the 2015
Regular Session
From the Associated Press
The Florida Legislature passed 227 bills during the 2015
session that ended early after the House went home three
days early. Over 1,500 bills died, and the House left before
a budget could be agreed upon, which effects all spending
beginning July 1. Here’s a quick summary of some of the
bills that passed.
Bills that passed both chambers would:
F Set the presidential primary date as March 15, 2016.
Signed by Gov. Rick Scott.
F Require a 24-hour waiting period before women can get
abortions.
F Legalize half-gallon refillable beer jugs.
F Make revenge pornography illegal
F Allow rural mail carriers to drive without seat belts while
on their routes.
F Force strip bars and massage studios to post signs
alerting customers and employees to a human trafficking help line.
F Create an online voter registration system.
F Require city, county and state agencies to buy Florida
and United States flags that are made in the United
States.
F Revise the legislative gift ban to allow lawmakers to accept use of a public building or public property if it is being used for a public purpose.
F Allow terminally ill patients to use experimental medicines that have completed the first phase of federal approval.
F Make it illegal to use drones to photograph or record images of people or their property from the air.
F Require websites that sell commercial music and movies to post identification and contact information on their
sites.
F Keep confidential police body camera videos that are
shot in a house, a health care facility or any place that a
reasonable person would expect to be private.
F Make it illegal to impersonate a firefighter.
F Set term limits for appointees to the Public Service Commission.
F Make it illegal to discriminate against pregnant women.
F Allow people without a concealed weapons permit to
carry a gun with them during mandatory evacuations.
F Let children who are victims or potential victims of rape
and other violent acts secretly record their attackers.
F Create tougher penalties for people who pay for sex.
F Allow active and former military members to tell government agencies to keep private personal information like
addresses and phone numbers that would otherwise be
public record.
F Repeal the ban on gay adoption that is no longer enforced.
Florida Senate, House Agree to Scope of
Special Session
By Steve Bousquet (reprinted from the Miami Herald)
Florida Senate and House leaders have agreed to the
scope of a special session starting June 1.
The session became necessary after the two chambers
failed to reach an agreement on a budget last month in a
standoff over health care spending.
In a joint proclamation, Senate President Andy Gardiner,
R-Orlando, and House Speaker Steve Crisafulli, R-Merritt
Island, said the session will include the budget “and conforming bills which were poised for conference” during the
regular session that House leaders ended early.
Also included will be “health care reform legislative priorities and tax relief.”
The Senate and House have not yet agreed on the cru-
cial issue of budget allocations, but Gardiner and Crisafulli
said they will do so before June 1.
“Florida will have a balanced budget by June 30,” Gardiner said in a statement. “Narrowing the set of issues to
those outlined in today’s proclamation enables us to focus
on the critical work before us and to meet our constitutional
obligation in the open and transparent manner the people of
Florida expect.”
Crisafulli thanked Gardiner “for his partnership in developing the scope of our work during the upcoming special
session.
“Today is an important milestone,” Crisafulli continued
in his statement. “Although we differ on policy approaches
regarding health care, the House welcomes the opportunity
to have a vigorous debate over the issue. We look forward to
working with our Senate partners to craft a balanced budget
that supports our schools, our environment and provides tax
relief to Florida’s hard-working families.”
Employers Get Smart on Medicare
Payments
By Michele Adams (reprinted from Business Insurance, Vol. 48, Issue 24, 11/24/14)
What is the status of implementation
of the SMART Act?
Since President Obama signed
the SMART Act in January 2013, the
MARC coalition has been working with
the Centers for Medicare and Medicaid
Services to implement the requirements
of the new law. Several of the SMART
Act provisions are self-implementing,
such as a statute of limitations and the
elimination of strict liability for reporting
penalties. Yet several other provisions
required new CMS regulation or policy.
CMS has already implemented
several other provisions. For example,
CMS recently eliminated the requirement that Medicare beneficiaries provide a full Social Security number so
that settling parties can navigate the
Medicare Secondary Payer Section 111
reporting process. Similarly, the agency
has raised the threshold to $1,000, below which Medicare Secondary Payers
will not apply to settlements — easing
the settlement process for small claims
saving the government millions of dollars in avoided costs of claims recovery.
Is the SMART Act implementation
process going as MARC coalition
members had hoped when they originally supported the bill’s passage?
Several improvements remain
pending in the rule-making process.
For example, the law calls for an electronic portal to expedite Medicare payments during the settlement process.
Although the law called for the portal
to be running by October 2013, the
agency has announced a delay in full
functionality until 2016. Similarly, the
agency continues to work on rulemaking, creating the reporting safe harbors
and the appeals process for responsible reporting entities.
What challenges remain in the Medicare Secondary Payer compliance
process, and where will the MARC
coalition focus its efforts?
With several rule-makings left
to complete, the coalition continues
to meet and work with CMS to finalize those rules as soon as possible.
Beyond SMART Act implementation,
there are a number of secondary payer
issues that claims managers will need
to watch for. MARC has been actively
working on secondary payer issues
related to Medicare Advantage Part D
prescription drug plans and Medicaid
programs so benefits can be appropriately coordinated at the time of settlement with these plans as well.
What advice would you give to risk
managers who are trying to stay
ahead of the curve on Medicare Secondary Payer issues?
Certainly there is no shortage of
Medicare Secondary Payer issues
affecting the claims process. As the
population expands and a greater
number of Medicare beneficiaries are
in the general population, and in the
employee base, we will continue to rise
in Medicare Secondary Payer claims.
Further, numerous other entities, including Medicare Advantage and Part
D insurers may seek to assert their interests in settlements. Claims may become more complicated to resolve, and
anticipating the numerous entities that
may have a lien on settlement proceeds
will become increasingly complex. By
joining together, claims professionals
have already achieved much success
in improving the Medicare Secondary
Payer process, but our work is not over.
We welcome the claims and risk management community working together,
through MARC and other advocacy
efforts, to ensure that our successes
remain, and we continue to improve
those areas of concern that still remain.
Michele Adams is chairwoman of
the Washington-based Medicare
Advocacy Recovery Coalition and
director of claims management,
business strategies and risk
management services at
Walt Disney World Resort
in Orlando, FL.
OIR Releases Annual Workers’
Compensation Report
In compliance with Florida Statute, Florida’s Office of Insurance Regulation recently published its annual report analyzing the availability and affordability of workers’ compensation coverage in the state. The 34-page report included
findings that:
è
Based on a comparative analysis across a variety of
economic measures, the workers’ compensation market
in Florida is competitive.
è Of the six most populous states, Florida is one of only
two where a private market insurer is the largest insurer
rather than a state-created residual market entity. This
degree of private activity indicates coverage should be
generally available in the voluntary market. The residual
market is small, suggesting the voluntary market is absorbing the vast majority of demand. Additionally, Florida’s aggregate loss ratios are the second lowest among
the six most populous states with only Texas having
lower ratios.
è Reforms to Section 440.34, Florida Statutes, which affected attorney’s fee provisions, were a significant factor
in the decline of workers’ compensation insurance rates
and continue to impact them.1 It is also the case, however, that most of the improvements resulting from these
legislative changes may have been realized as there
were four rate increases from 2010 to 2014 after seven
years of decreases following the 2003 reforms. This is
the second year rates have been relatively stable with a
rate increase of less than 1% for the 2014 rate filing and
a rate decrease of -5.2% for the 2015 rate filing.
è Medical cost drivers, particularly in the areas of drugs,
hospital inpatient, hospital outpatient and ambulatory
surgical centers (ASC) are noticeably higher in Florida
than a countrywide average. Legislative reform in the reimbursement of these services could produce substantial savings for Florida employers.
è Affordability within the Florida Workers’ Compensation
Joint Underwriting Association, Inc. (FWCJUA), which is
the residual market, has been an ongoing issue. Senate Bill 50-A enacted in 2003 and House Bill 1251 enacted in 2004 addressed affordability in the voluntary
and residual market, respectively, and both markets remain stable. It is worth noting, however, that over the
last several years both policy count and premium at the
FWCJUA increased significantly, though it still remains a
very small portion of the overall workers’ compensation
market.
è The Office is in compliance with the requirements of
Section 627.096, Florida Statutes.
è The competitive structure of the workers’ compensation
market in Florida by comparing select key financial performance ratios, the number of insurers actively participating in the market along with their respective market
positions, and the number of insurers entering and exiting the market.
è The availability and affordability of workers’ compensation insurance in Florida. This includes an analysis of
rate increases in Florida’s admitted market, as well as,
the rating structure extant in the FWCJUA.
è The market structure in Florida, which includes the market concentration in Florida compared with other states,
and entry and exit of insurers from the Florida market.
è Documentation of the Office’s compliance with Section
627.096, Florida Statutes, by investigating all workers’
compensation carriers operating in Florida.
è A comparison of pure loss costs for the 10 largest workers’ compensation class codes for Florida compared to
the other states using the National Council of Compensation Insurance (NCCI) as their statistical rating organization.
Summary of the 2013 Report
The 2013 Workers’ Compensation Annual Report was
the tenth report resulting from the statutory mandate and
reached the same general conclusions as the previous annual reports. Specifically, the report showed that, during
2012:
è Florida’s workers’ compensation insurance market contained a large number of independent insurers, none of
which had enough market share to individually exercise
market control in an uncompetitive nature.
è The HHI indicated Florida’s market was not overly concentrated, and consequently exhibited a reasonable degree of competition.
è There were no significant barriers for entry and exit of
insurers into and from the Florida workers’ compensation insurance market.
è The residual market is small relative to the private market indicating the voluntary market offers reasonable
availability.
Labor
and Employment
Update
what happened between the two letters and Mach Mining
argued that the statutorily required conciliation efforts had
not occurred. The district court ruled in favor of Mach Mining on this issue, but the Seventh Circuit Court of Appeals
reversed the decision of the district court.
The EEOC argued that judicial review of this aspect of the
EEOC investigation and litigation process was unnecessary
and would undercut the EEOC’s enforcement of anti-discrimination laws. Mach Mining argued that the courts could
review whether the EEOC fulfilled its duty to engage in conciliation before filing suit.
The Supreme Court reversed the Seventh Circuit Court of
Appeals in a unanimous opinion and held that whether the
EEOC complied with its pre-suit obligation to engage in conciliation is subject to judicial review, although the scope of
that review is narrow given that the EEOC is granted discretion in this regard. The Court held that the EEOC “must tell
the employer about the claim — essentially, what practice
has harmed which person or class — and must provide the
employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” Because of the discretion afforded to the EEOC however, Courts may only inquire
whether the EEOC “inform[ed] the employer about the speBy: Michael Spellman
cific allegation,” and whether it “tr[ied] to engage the employ([email protected])
er in some form of discussion (whether written or oral), so as
and the lawyers at Sniffen & Spellman, P.A. to give the employer an opportunity to remedy the allegedly
discriminatory practice.” Indeed, as the Court explained, the
U.S. Supreme Court Issues Decision in Favor of
review engaged in by lower courts “looks only to whether the
Employers in Case Concerning Judicial Review of
EEOC attempted to confer about a charge, and not to what
EEOC Pre-Suit Conciliation Efforts
happened (i.e., statements made or positions taken) during
those discussions.”
The U.S. Supreme Court issued its much awaited decision in
Mach Mining, LLC v. Equal Employment Opportunity Com- The opinion can be found here: Opinion.
mission which concerned whether and to what extent courts
can review whether the EEOC complied with statutory preFMLA Final Rule for Definition of Spouse Delayed by
suit conciliation requirements prior to bringing a suit against
Texas Court
a defendant. The Court found in favor of Mach Mining, overturning the appellate court’s decision which held there were The Northern District of Texas Court granted an applicacertain limitations on review of the EEOC’s compliance with tion for a preliminary injunction filed by the States of Texpre-suit conciliation requirements.
as, Arkansas, Louisiana and Nebraska essentially blocking
The case stemmed from a charge of discrimination filed by
a female applicant for employment who was denied a position in an Illinois coal mine. The EEOC sought to bring a suit
against Mach Mining for discrimination against women who
applied for jobs at the company. Under Title VII however,
the EEOC must first try to informally resolve the claims of
unlawful employment or workplace practices through conciliation efforts before filing suit. In this case, the record before
the Supreme Court revealed that the EEOC sent a letter announcing its determination that there was reasonable cause
to believe that Mach Mining engaged in unlawful employment practices under Title VII and in that letter asked the
company to engage in conciliation efforts indicating that it
would be in touch with the parties soon regarding the same.
Later, the EEOC sent another letter indicating that conciliation efforts had failed and then filed suit against Mach Mining. The record before the Supreme Court did not indicate
the enforcement of the United States Department of Labor
(DOL’s) recent final rule defining “Spouse” for the purposes
of Family and Medical Leave Act (“FMLA”). The rule, which
was to go into effect on March 27, 2015, explicitly recognized same-sex marriages if validly entered into in a jurisdiction that recognizes such marriages, and common law marriages. Importantly, the rule changed the focus in 29 CFR
§§825.102 and 825.11(b), of “spouse” based upon the law of
the place of marriage, not the place of residence. Whether
a permanent injunction will be granted will most likely be
based on the outcome of the U.S. Supreme Court’s decision
in Obergefell v. Hodges (set for oral argument on April 28,
2015), which should address the constitutionality of same
sex marriage bans, and the validity of same-sex marriages
from other states in states that do not recognize such marriages.
Labor and Employment Update
A Copy of the FMLA Rule can be found at: Federal Register.
The Order on the injunction can be found at: Court Order.
Where Chief Did not Speak as Private Citizen,
Termination Was Not a 1st Amendment Violation
The 11th Circuit Court of Appeals affirmed the termination of
an assistant fire chief who alleged he had been retaliated
against for speaking against city budget and pension plans.
The District Court granted the employer’s motion for summary judgment on the employee’s 1st Amendment “freedom
of speech” retaliation claim, finding the employee was not
speaking out as a private citizen. The 11th Circuit confirmed
that to prevail on a first amendment retaliation claim, the employee must show not only that he or she spoke out as a
private citizen on a matter of public concern, but also that
“the public interest in the speech must outweigh the employer’s interest in promoting harmony and efficiency in the
workplace.” Because the Plaintiff’s job duties involved budget and pension issues and most of the comments occurred
while he was on duty, the Court concluded he did not fulfill
the basic requirement of speaking out as a private citizen.
The City also presented other valid reasons for termination,
including budget cuts. Even if the Chief was considered a
private citizen at the time of the comments, the Court noted
there was a reasonable possibility of adverse harm in the
form of workplace disruption that outweighed the public interest in the chief’s speech.
A full copy of the 11th Circuit’s Order can be found at: Court
Order.
EEOC’s Proposed Rule on Employer Wellness
Programs is open for Public Comment
On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) published a Notice of Proposed Rulemaking, which is open for public comment until June 19, 2015.
The EEOC’s proposed rule provides guidance to employers
as it relates to employee wellness programs, and compliance with Title I of the Americans with Disabilities Act (“ADA”)
and the Health Insurance Portability and Accountability Act
(“HIPAA”), as amended by the Affordable Care Act. Many
wellness programs offer incentives for employee participation in nutrition classes, weight loss programs, or even
based on biometric screenings that measure blood pressure
levels, glucose, etc. As a result, incentives based on the
aforementioned factors may necessarily penalize some employees. The proposed rule is intended to clarify the interaction of the ADA, HIPPA, and clarify employer compliance in
the administration of employee wellness programs.
Source: EEOC
ADA Title III Lawsuits on the Rise
The Americans with Disabilities Act is a federal law that protects individuals with Disabilities. Title I prohibits discrimination in employment whereas, Title III prohibits discrimination
in places of public accommodations (e.g., restaurants, hotels). By way of example, pursuant to Title I, an employee
may allege that his employer failed to provide a reasonable
work accommodation for his or her disability. Under Title III,
a plaintiff may allege that a hotel lacked a proper ramp or
pool lift. Over the past few years, trends in Title I employment discrimination cases have been fairly consistent. However, last year, the number of Title III cases filed rose by
63%, with Florida, California, New York, Pennsylvania, and
Alabama leading with the highest numbers of federal court
filings in the nation.
Source: ADA Title III.
Assistant Manager Sues Wal-Mart
for Unpaid Overtime Wages
An assistant manager at a Wal-Mart in California filed a
lawsuit against her employer, alleging violations of the Fair
Labor Standards Act (“FLSA”). Subject to exemptions, the
FLSA generally requires an employer to pay and employee
time and a half for all hours worked in excess of forty hours
per week. The executive exemption relieves an employer
from paying overtime to management. The plaintiff alleges
that Wal-Mart requires its assistant managers to perform
non-management duties, such as greeting customers, and
the company avoided paying them overtime by misclassifying them as management.
Source: Think Press.
U.S. Supreme Court Rules on
Landmark Pregnancy Discrimination Case
The U.S. Supreme Court issued a landmark decision
interpreting the Pregnancy Discrimination Act (“PDA”). The
PDA amended federal civil rights laws to prohibit
discrimination on the basis of pregnancy. The PDA provides
that discrimination on the basis of pregnancy is a form of
sex discrimination and that workers that become pregnant
must be treated the same as others that can perform the
same duties. The Supreme Court’s opinion in Young v. UPS
(Case No. 12-1226) vacated the decision of the appellate
court and found that the Plaintiff employee could possibly
have a viable discrimination claim under the PDA stemming
from UPS’s denial of her request to work a light duty position
after she became pregnant.
Plaintiff was an air driver for UPS which required her to lift
Continued on page 15
more than 70 pounds. She became pregnant, and her doctor determined that she should not lift more than 20 pounds.
UPS informed her that she could not perform the essential
functions of her job given the lifting restrictions. As such,
she was placed on leave despite her request for a light duty
position.
UPS offered light duty positions to other employees in certain circumstances under a collective bargaining agreement
such as employees with a disability under the Americans
with Disabilities Act (“ADA”) or employees who suffered an
on-the-job injury. Plaintiff did not qualify under any of the
identified categories. Plaintiff brought suit and argued UPS
violated the PDA by not offering her a light duty temporary
assignment. The lower courts held that Plaintiff could not
show that nonpregnant employees in similar situations received favorable treatment. The Supreme Court disagreed with the lower decisions and
held that the PDA “requires courts to consider the extent to
which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their
ability or inability to work.”
Notably, the Supreme Court rejected an interpretation of the
PDA advocated by the US Government which argued that
female workers should get the same accommodations as
any other worker if they cannot perform their job so long
as the condition similarly impairs their inability to work.
The Supreme Court noted that this approach removes any
requirement that an employee demonstrate that bias against
pregnancy status was intentional. This rejection effectively
renders previous guidance issued by the Equal Employment
Opportunity Commission (“EEOC”) a nullity.
The Supreme Court also rejected UPS’s argument that the
PDA only amended civil rights laws to make pregnancy
discrimination another form of sex discrimination; instead,
the Supreme Court fashioned a new way to analyze claims
under the PDA.
Under the PDA, a plaintiff must now show that (1) she is in a
protected class or that she is one that can become pregnant,
(2) she asked for an accommodation due to her pregnancy,
and (3) her employer refused to do so but provided an
accommodation to others in similar circumstances with
similar limitations unable to perform their jobs on a temporary
basis. The employer is able to rebut this inference by showing
that the rationale for the rejection of the accommodation(s)
was a neutral reason. The plaintiff then has a chance to
demonstrate that the reason is pretextual, the policy in
effect puts a significant burden on female workers, and it is
not sufficiently strong to justify that burden.
The opinion is available at the following link: Young.
Federal Arbitration Act Applies to Arbitration
Agreement Related to Employment that Involves
Interstate Commerce
Arbitration agreements in employment contracts and handbooks have become increasingly popular over the years as
a way to avoid costly employment litigation battles in state
and federal courts. However, the interpretation of these
agreements can be highly technical. A recent appellate court
decision in Florida provides some clarity on how such agreements are interpreted.
The Fourth District Court of Appeal in AMS Staff Leasing,
Inc. v. Taylor (Case No. 4D14-1387) found that a claim for
retaliatory discharge, and specifically retaliation for filing a
workers’ compensation claim, was properly the subject of an
arbitration agreement. The Court noted that the agreement
at issue was entered into between a Florida employee and
a Texas-based company and thus it involved interstate commerce such that the Federal Arbitration Act applied to the
interpretation of the agreement.
The opinion is available at the following link: AMS Staff Leasing, Inc.
Florida Court Holds Employment Discrimination Claims
Still Live Against Employer Reorganized in Bankruptcy
The First District Court of Appeal in Florida clarified the viability of employment claims against an entity that has been
reorganized in bankruptcy. In Hamilton v. Pilgrims Pride
Corporation (Case No. 1D14-2436), the Court overturned a
trial court’s dismissal of employment discrimination claims
on the basis that they were discharged in bankruptcy. The
Court held that the employee’s claims against her employer
(retaliation and discrimination) that arose after the filing of
the bankruptcy petition could still be pursued and were not
necessarily discharged in bankruptcy.
The case provides a notice to employers that some courts
may not be inclined to include such liabilities as part of a
bankruptcy depending on when they arise in the course of
bankruptcy proceedings. Employers should appropriately
assess such risks when reorganizing.
The opinion is available at the following link: Hamilton.
Americans with Disabilities Act Applies
to Probationary Employees Seeking Leave
A pipe-fitting manufacturer was recently reminded the hard
way that the ADA applies to employees during their proba-
tionary period just as it does to non-probationary employees.
In an EEOC lawsuit, a new employee began having seizures
shortly after he was hired by the employer. He requested six
weeks of unpaid leave to treat the seizures caused by disabilities suffered during his service with the Marine Corps.
Instead of complying with his request, the employer terminated his employment. The employee subsequently filed a
disability discrimination charge against the employer with
the EEOC and the parties later agreed to a $65,000 settlement in favor of the employee.
The employer’s policy allowed non-probationary employees
up to 26 weeks of leave but did not allow any leave to probationary employees. Although probationary employees are
not entitled to leave under other acts, such as the Family
and Medical Leave Act (FMLA), the ADA applies to all employees regardless of the stage of employment. As such, it
is important for employers to analyze such requests on an
individual basis under both the FMLA and ADA.
Source: JD Supra Business Advisor.
In a Fact Sheet published by DOL, the following were noted
as major changes (quoted):
The Department has moved from a “state of residence” rule
to a “place of celebration” rule for the definition of spouse
under the FMLA regulations. The Final Rule changes the
regulatory definition of spouse in 29 CFR §§ 825.102 and
825.122(b) to look to the law of the place in which the marriage was entered into, as opposed to the law of the state
in which the employee resides. A place of celebration rule
allows all legally married couples, whether opposite-sex or
same-sex, or married under common law, to have consistent
federal family leave rights regardless of where they live.
The Final Rule’s definition of spouse expressly includes individuals in lawfully recognized same-sex and common law
marriages and marriages that were validly entered into outside of the United States if they could have been entered
into in at least one state.
More information is available at the following link: DOL.
Department of Labor Modifies Definition of Spouse
Under FMLA
SEC Filing Can Be Evidence of Retaliation
On February 23, 2015, the U.S. Department of Labor (“DOL”)
announced that the definition of spouse under the Family
and Medical Leave Act (“FMLA”) includes workers in legal,
same-sex marriages. A press release issued by DOL clarifies that “eligibility for federal FMLA protections is based on
the law of the place where the marriage was entered into.”
The Final Rule becomes effective March 27, 2015. The new
definition of “spouse” is as follows:
In Greengrass v. International Monetary Systems, Ltd (Case
No. 13-2901), the Seventh Circuit found that disclosures required by the Securities and Exchange Commission (“SEC”)
could be evidence of retaliation. In that case, Greengrass
complained internally about harassment nine months after
she started working for IMS. She quit two months after making her complaint and filed a charge of discrimination with
the EEOC.
Spouse, as defined in the statute, means a husband or wife.
For purposes of this definition, husband or wife refers to the
other person with whom an individual entered into marriage
as defined or recognized under state law for purposes of
marriage in the State in which the marriage was entered
into or, in the case of a marriage entered into outside of any
State, if the marriage is valid in the place where entered into
and could have been entered into in at least one State. This
definition includes an individual in a same-sex or common
law marriage that either:
While the charge was pending, in a section of an SEC annual 10-K filing entitled “Legal Proceedings,” the company
identified Greengrass’ complaint and stated, “IMS believes
the claims to be meritless and will vigorously defend itself.”
Subsequently, the Equal Employment Opportunity Commission (“EEOC”) found reasonable cause to believe that
Greengrass and other females as a class were subject to
harassment, after which IMS resolved Greengrass’ EEOC
complaint through conciliation. IMS reported the resolution
in its Form 10-K Annual Report for 2009 stating, “[d]uring
2009, the company was a defendant in two cases of note…
Settlement was reached in the EEOC matter in November
2009.”
(1) Was entered into in a State that recognizes such marriages; or
(2) If entered into outside of any State, is valid in the place
where entered into and could have been entered into in at
least one State.
After her settlement, and having difficulty finding and maintaining regular employment, Greengrass filed a second
EEOC complaint against IMS alleging it retaliated against
her based on its SEC filings. She claimed that a Google
search of her name drew results regarding IMS’s SEC filings
and that a recruiter had informed her she was “unemployable” due to this information.
Reversing the trial court, the Seventh Circuit held that “listing Greengrass in publicly available SEC filings (and referring to her complaint as ‘meritless’) constituted a materially
adverse employment action.” In finding a causal link, the
Court found that IMS would not have taken the adverse action (listing Greengrass in its SEC filing) but for her filing an
EEOC charge. One fact which persuaded the Court was
IMS’s “multiple shifts” in policy – from not including litigants’
names in its SEC filings, to listing them, and then not including them again.
A copy of the Court’s opinion is available at the following link:
Greengrass.
Jury Question: Whether Dealership Employee’s
Refusal to Participate in “Power Booking”
Violated Florida’s Whistle Blower Act
Florida’s Second District Court of Appeal found that the firing
of a car dealership employee who refused to participate in
“power booking” and reported such activity to a Regional Director violated Florida’s private Whistle Blower Act (“FWA”).
“Power booking” involves a dealership making false statements to a bank regarding the optional features on a car
that are not actually on the car being sold (justifying loans
to the purchaser at a higher amount than the vehicle is truly
valued).
The employee claimed that the dealership violated a State
law (F.S. 817.03) that prohibits false statements to obtain
credit or goods. The employee alleged that the dealership
also made false statements relating to buyers’ incomes to
obtain more credit than actually required to purchase the vehicles. The Court held that the FWA requires an employee
to provide evidence of an actual violation of law in order for
the matter to proceed to a jury. Ultimately, such evidence
was introduced by the employee. The employee testified he
had personal knowledge of the cars and loan applications
and knew that the applications contained false representations.
A copy of the Court’s opinion is available at the following link:
Kearns v. Farmer Acquisition Company (Case No. 2D126388).
Obama Administration Considering
Changes to Overtime Laws
In 2014, President Barack Obama announced a plan to address fair wages and overtime pay protections for millions of
workers. The Obama Administration may soon move forward
with an initiative to revise overtime laws that exempt certain
employees from receiving overtime pay. Under current laws,
exempt employees who receive a weekly salary in excess of
$455 are not required to receive overtime for working more
than forty hours in a week. Future changes to legislation will
likely include an increase in the minimum salary threshold as
well as a modification of the definitions of the administrative
and management exemptions.
Source: CNN.
Information Disclosed in Violation of TSA Regulations
Can a Federal Whistle Blower Disclosure
The U.S. Supreme Court determined that the disclosure by
a federal air marshal of a cancellation of protective missions
during a hijacking alert constituted a whistle blowing activity
under the federal whistle blower statute. Plaintiff was fired
after he told an MSNBC reporter in 2003 that the Transportation Security Administration (“TSA”) had cancelled air marshal missions to “cut costs,” even though there was a potential hijacking alert at the time. Although his name was not
revealed by the reporter, Plaintiff later appeared in disguise
in 2006 on NBC Nightly News to criticize the TSA’s dress
code. During the investigation of that appearance, Plaintiff
admitted to reporting the information in 2003.
The TSA fired Plaintiff claiming that the information he disclosed was “protected by law” and exempt from the federal
whistle blower statute. Thus, the issue before the Supreme
Court was whether the general statute authorizing the TSA
to create regulations was a “law” that “specifically prohibited”
Plaintiff’s disclosure. The Supreme Court held that the information revealed may have been protected by TSA regulations but neither the enabling statute nor the TSA regulations
were “law.” As such, Plaintiff was entitled to whistle blower
protection. The Supreme Court conceded that the ruling
may affect national security but left it up to Congress and the
President to address.
A copy of the Court’s opinion is available at the following
link: Department of Homeland Security v. MacLean (Case
No. 13-894).
EEOC Produces User-Friendly Guide for
Employers and Resources to Increase Opportunities
for People with Disabilities
The EEOC and several other federal agencies have developed a new guide titled, “Recruiting, Hiring, Retaining & Promoting People with Disabilities: A Guide for Employers.” The
Workers’ Compensation Case Update
By Rogers Turner and Matthew Troy, Hurley Rogner Miller, Cox, Waranch & Westcott, PA
Stahl v. Hialeah Hospital/Sedgwick, (Fla. 1st DCA
3/25/2015) Co-pays and Impairment Benefits/MMI/
Constitutionality
Claimant requested a written opinion, so the DCA withdrew
their 2/3/15 PCA and issued this decision. Claimant argued
the $10 post MMI co-pay and elimination of Permanent Partial Disability Benefits in the 2003 amendment make the
Workers’ Compensation Law an inadequate exclusive replacement remedy for a tort action. The DCA disagreed,
noting that both of these changes pass the rational basis
test. The copay provision furthers the legitimate stated purpose of ensuring reasonable medical costs after the injured
worker has reached a maximum state of medical improvement, and PPD benefits were replaced with impairment income benefits. Click here to view Opinion
The two cases issued last week by the First DCA appear to
provide conflicting standards to prove entitlement to ongoing
benefits in an initially compensable claim. Echevarria upheld a JCC’s denial of a medical evaluation post MMI, noting
the claimant provided no medical evidence of ongoing MCC.
Two days later, Perez reversed a JCC’s denial of TTD based
upon the Order’s finding of no objective relevant medical
findings. The Perez decision notes that after the claim is accepted as compensable, and there is no evidence of a new
injury o r break in the causal chain, claimant is “absolved
of the requirement to prove causal relationship between the
injury and the requested benefit”. Whether or not there is a
Motion for Rehearing asking the DCA to clarify these opinions, adjusters would be wise to use every effort to
quickly obtain a medical determination of the exact injury
caused by the workplace accident, avoiding acceptance of
“the low back” or “the right knee”. Where warranted, diagnostics should be obtained to specifically identify the structure of the body injured (“right sided bulge at L-5” or “right
sided meniscal tear”) and any other degenerative or nonacute findings should be specifically carved out of the compensable injury description.
Echevarria v. Luxor Investments LLC, AIF Ins. Co. (Fla.
1st DCA 3/18/15) Post MMI Medical Care/Requirement
of Medical Necessity
Claimant sought an evaluation with his authorized neurologist for compensable injuries arising out of his 2007 date of
accident. The DCA affirmed the JCC’s denial of the evaluation, which found the E/C proved the original accident was
not the MCC of the need for the evaluation, and that “no
further neurological treatment is medically necessary…”.
They wrote separately to refute claimant’s arguments
that a claimant assigned a permanent impairment rating is
entitled to ongoing palliative treatment as a matter of law, in
the absence of medical testimony establishing the need for
such treatment. The DCA found nothing in Chapter 440 or
case law creates such a right. They distinguished the 2005
Homler v. Family Auto Mart decision, which stated “The law
is clear that once a claimant establishes a PI, he or she is
entitled to ongoing palliative care for that condition”, noting in
that case the claimant had medical testimony supporting the
continuing need for such related treatment. They acknowledged that some permanent injuries, although not requiring
guide, which was produced by the Curb Cuts to the Middle
Class Initiative, has information about steps businesses can
take to make sure people with disabilities are included in
their overall recruitment efforts. The guide is user friendly
and provides employers with technical assistance tools in
an easy to understand question-and-answer format. Curb
Cuts is a federal interagency effort whose goal is to increase
equal employment opportunities and financial independence
for people with disabilities. More information is available at the following link: EEOC.
Retail Store Allegedly Refuses to
Hire Muslim Woman Because of Attire
The U.S. Supreme Court will decide in the near future
whether a popular retail store was in the wrong for failing to
hire a Muslim applicant because of an article of clothing the
woman wore. In EEOC v. Abercrombie & Fitch Stores, Inc.
(Case No. 14-86), the EEOC claims Abercrombie & Fitch
Stores, Inc. (“A&F”) discriminated against a 17-year old
Muslim woman after it failed to hire her because she wore
a head scarf to her job interview at an A&F Kids store in
Tulsa, Oklahoma. The U.S. Supreme Court must determine
whether A&F declining to hire the Muslim woman constituted
prohibited discrimination on the basis of religion.
Source: Equal Employment Opportunity Commission.
ongoing active treatment, may require periodic doctor visits
“to ensure that the compensable injury is not worsening or
in need of further evaluations or treatment”, but where, as
here, there is no med ical evidence of ongoing MCC, such
treatment is not awardable. Click here to view Opinion.
Perez v. Southeastern Freight Lines, Inc./Gallagher
Bassett Svcs, Inc. (Fla. 1st DCA 3/20/15)
Compensability/MCC/Burdens of Proof
Claimant appealed the JCC’s denial of TTD benefits, accepting the E/C’s argument that the claimant failed to present evidence of “objective relevant medical findings” as required by F.S. 440.09(1). The DCA reversed, accepting the
claimant’s argument that 440.09 governs compensability,
and as the E/C stipulated to the compensability of the injury, the JCC applied the wrong legal standard. The DCA
noted that after the claimant carries his burden to establish
initial compensability, the E/C may not challenge the causal
connection between the work accident and injury, but only
the causal connection between the injury and the connected
benefit. Further the E/C must demonstrate a “…break in the
causation chain... such as the occurrence of a new accident
or that the requested treatment was due to a condition unrelated to the compensable injury”. The court noted that although the preceding language from the 2010 Jackson case
considered a pre 1994 accident, the reasoning applies to
later cases if the “break” is understood as occurring when
the work related cause drops below 50% of the total need
for the benefit at issue. In the instant case, the E/C did not
assert any such break, or an MCC defense. Claimant, after
a stipulation on compensability, is absolved of the need to
reestablish objective relevant medical findings, and if there
is no evidence of a break in causation, claimant meets the
burden to prove causal relationship between the injury and
the benefit. The opinion notes the claimant still must prove
medical necessity, but found here that medical testimony
taking the claimant off of work “due to ongoing symptoms or
injuries from the …accident” carried the claimant’s burden.
Click here to view Opinion
The portion of the underlying Order regarding TTD is short.
It indicates that the documents relied on to support TTD really had no information at all about injury. The Judge’s Order
correctly identifies F.S.440.09(1) as not only establishing the
standard for “compensability” but for “any resulting manifestations”, which also requires the objective relevant medical findings. The DCA opinion repeats the same language
regarding resulting manifestations, but then concentrates
only on initial compensability. Click here to view Order
Gonzalez v. AMC/CCMSI (Fla. 1st DCA 3/12/2015) EMAS
Claimant filed a petition for writ of certiorari challenging an
order of the JCC appointing an EMA. The physical examination by the EMA, were it to take place, would constitute harm
not remediable on appeal because claimant objected to being physically examined. The DCA noted though, that a disagreement in medical opinions existed which was sufficient
for the JCC to order the objected-to examination. Thus, the
JCC did not depart from the essential requirements of law.
They noted any harm that might result from the EMA’s being
asked to opine on facts or issues of law that are not properly
within the EMA’s purview could be fully remedied on appeal.
Therefore, they denied the requested relief. Click here for
Opinion
Cortes-Martinez v. Palmetto Vegetable Co. LLC/Claims
Center (Fla. 1st DCA 3/10/2015) Attorney Fees/
Calculation of Statutory Formula
The parties agreed at mediation to settle the case for
$28,500, from which the claimant attorney would be paid a
(20/15/10) statutory fee of $3,600 pursuant to F.S.§440.34(1)
(2009). The parties further agreed the E/C would pay the
claimant attorney an additional fee based on the claimant attorney having secured $4,940.54 in past indemnity, paid as
a result of prior litigation. The parties submitted the attorney
fee agreements to the JCC for approval. The JCC approved
the statutory fee on the washout amount of $28,500, but
would not approve the fee based on 20% of the prior
benefits obtained. The JCC reasoned that there can only
be one $5,000 in benefits to which the 20% attaches, only
one $5,000 amount to which the 15% attaches, and once
$10,000 is reached, any remaining attorney fees would be
limited to 10%. The DCA examined the plain language of
F.S. s. 440.34(1), and rejected the JCC’s analysis. The court
reasoned that that section’s reference to “the” claim suggests there would be more than one claim subject to the
full formula. They also looked to sub section (2) of that section, which eliminates “benefits secured” from future medical
benefits to be proved on any date more than five years after
the claim is filed. The court reasoned that under the JCC’s
conclusion that “the” claim can only be the first claim filed,
then contested medical benefits secured more than five
years after the first claim would not result in payment
of any attorney fee. They reversed and remanded for entry
of an order consistent with their opinion. Click here to view
Opinion
Mitchell v. Osceola County School Board/Johns
Eastern/Liberty Mutual (Fla. 1st DCA 3/10/2015)
Statutory Employer/Evidence of Contractual Obligation
Claimant was a student at Hagerty High School (HHS) participating as an intern in a veterinary clinic housed at the
high school. After being bitten by a dog, claimant filed PFBs
against the clinic and Osceola County School Board (OCSB).
The claimant dismissed PFBs against the uninsured clinic,
and the parties bifurcated the issue of employer/employee
relationship as to OCSB. The claimant alleged, among other
theories, that she was a statutory employee of OCSB under
F.S. s. 440.10(1)(b).
The JCC dismissed all PFBs, finding the claimant was not
a statutory employee of OCSB as no contractual duty had
been sublet to the clinic. The DCA reversed and remanded
the case for the JCC to conduct additional legal analysis
regarding the “business partnership” between the clinic
and OCSB. The DCA noted that the students received clinical hours by assisting with services the clinic provided at a
reduced cost to the residents of the county. They found it
significant that OCSB prepared a pamphlet describing the
involvement of the students, along with services and prices,
which was distributed in the front office of the high school.
Neither the high school nor OCSB received any funds generated by the clinic. The DCA noted that a finding of statutory employment does not require a written contract, and
that even an advertisement may qualify to create evidence
of such. They cited the 1994 Antinarelli case (hotel found to
be statutory employer of worker injured in onsite, but separately owned restaurant, where part of hotels marketing materials created voucher program for guests who ate meals
in restaurant) as authority for possible establishment of a
statutory employer relationship, given the provision of low
cost vet care by OCSB. On remand, the JCC is to consider
in addition to the impact of the business partnership, the advertisement published by the county for the provision of vet
services, which they found more significant than OCSB’s
primary obligation to provide educational services. Click
here to view Opinion
AMS Staff Leasing v. Taylor/Diamond K Resources
LLC., (Fla. 4th DCA 3/4/15) Arbitration Clauses/
Enforceability
The DCA reversed the circuit court’s decision not to enforce
an arbitration clause. Taylor signed a contract to perform
work for Diamond K as a leased employee of AMS. He
alleged Diamond K had him fill out the AMS paperwork in
haste, without really reading it, and with the admonition he
would be fired if he did not complete the forms. The AMS
forms contained an arbitration clause, indicating that any and
all claims “arising under employment…” would be subject
to arbitration in Dallas, Texas where AMS is headquartered.
Taylor subsequently injured himself while working and AMS/
Diamond K later terminated him. He then sued both entities
for wrongful termination. AMS entered a limited appearance,
contending that Taylor was required to arbitrate his claims
per the agreement rather than litigate. Taylor countered his
case should not be subject to arbitration because: (1) AMS
waived enforcement of the agreement by not seeking arbitration in the workers’ compensation case; (2) the arbitration
agreement violated public policy because it failed to exempt
workers’ compensation matters and because it required
a Florida hourly-wage worker to travel to Texas to arbitrate a claim of wrongful termination, and (3) the arbitration
agreement was unconscionable and was procured under
duress. The circuit judge denied AMS’ Motion, agreeing with
Taylor as to his first and second arguments. The DCA reversed, noting the agreement does not violate public policy,
that the agreement does not violate the remedial purpose of
the statute, and that the F.S. 440.205 claim is separate and
distinct from claims for WC medical and indemnity benefits.
Additionally the DCA held AMS did not act in such a way to
waive arbitration, Further, as the agreement is governed by
the (Federal) FAA, and not Florida’s arbitration code, the fact
that the agreement provides for arbitration in another state
was not grounds to invalidate it. Finally, the DCA noted the
judge’s order did not provide evidence of either duress or
unconscionability, which can serve as defenses to enforcement of an arbitration clause. Click here to view the Opinion
Bonafide Masonry/Retail First Ins. Co./Claims
Center v. Saxton, (Fla. 1st DCA 3/5/15) Appellate
Jurisdiction/Non Final Orders
The DCA dismissed appeals of two non final orders. The
DCA dismissed the appeal of the first Order, issued 9/3/2014,
for failure to timely file a notice of appeal. The DCA’s dismissal of the appeal of the second non-final order of 9/23/14
was based on Fl.R.App.P. 9.180(b)(1)(A), which allows the
DCA to review non-final orders that adjudicate jurisdiction.
The DCA found no proof that the non final order in question
adjudicated jurisdiction. The Record showed that the JCC
declined to rule on the jurisdictional question (although not
noted in the opinion, the parties were litigating a utilization
review issue). The JCC asked the Appellants to file an evidentiary motion supporting their allegations, but rather than
accept that invitation they appealed the 9/3/14 order prematurely. Click here to view the Opinion
Coleman v. American Airlines/Sedgwick Claims, (Fla.
1st DCA 4/22/2015) Prevailing Party Costs
The JCC entered an order awarding the E/C $2,645.70 in
taxable costs. The claimant appealed a portion of the award,
asserting some of the awarded costs were unreasonable or
not properly taxable. The DCA agreed that the condensed
versions of deposition transcripts (in addition to originals and
one copy per deposition) were not a cost “reasonably necessary to defend the claims” and deducted $150 from the costs
awarded. They modified and affirmed as to all other awarded
costs. Click here to view Opinion
Urguelles v. Oasis Café/Technology Ins. Co.,
(Fla. 1st DCA 4/15/15) Attorney Fees/Fees applicable
to statutory formula
The DCA reversed the JCC’s Order limiting attorney fees.
The JCC indicated that he reduced the stipulated fee amount
under the 20/15/10 formula based on his interpretation that
the first $10,000 in benefits secured, to which the percentages of twenty and fifteen percent would apply, had been
“exhausted” with the approval of another attorney’s fee on
a lump-sum settlement (which were collected by another
attorney altogether). The JCC did not, however, have
the benefit of the recent Cortes-Martinez v. Palmetto Vegetable Co. case (3/10/15) where the DCA held that each
separate and distinct attorney’s fee is subject to the 20/15/10
formula. Click here to view Opinion
Cuenca v. Nova Southeastern Univ./York Risk (Fla. 1st
DCA 4/9/14) Attorney Fees/Medical Only Fees
The DCA reversed the JCC’s decision not to enter an order
approving a $1500 medical only fee and costs. The claimant originally filed a PFB on 12/5/13 against Nova and PMA.
Counsel for the E/SA filed a Notice of Appearance 12 days
later noting York was the proper S/A, and 13 days thereafter
filed a “Notice of Change of Servicing Agent” noting York assumed responsibility of the claim as of 12/1/13. The E/SA
never sought to dismiss this PFB. A second PFB filed on
2/14/14 named York and PMA as carrier and sought the same
benefits. The E/SA attended mediation on 5/1/14, agreed to
settle the claim for a lump sum including a statutory fee and
costs, and the E/SA agreed to pay an additional $1500 medical only fee and $275 in costs. The JCC approved the fee
on the settlement, but denied the side fee and costs, noting
his review of the DOAH docket and the stipulation showed
“presumably” that the failure to respond to the first PFB was
because of the wrong SA being listed, and that the second
response was timely. He indicated the parties could seek
modification or rehearing, which the claimant attorney did,
listing specifics to support entitlement to the medical only
fee. That too was denied. The DCA reversed, finding the
record did not support the JCC’s presumptions and entitlement to the fee and costs existed. Additionally, they noted
the JCC should have taken judicial notice of the records on
the docket and provided advance notice of those documents
outside of the records provided with the stipulation. Click
Box v. Tallahassee Fire Dept./City of Tallahassee,
(Fla. 1st DCA 3/31/2015) Motions for Summary Final
Order/Standard and Burden of Proof
The DCA reversed the JCC’s entry of a Summary Final Order in favor of the E/C. After the claimant filed a PFB for
payment of income impairment benefits at the correct rate,
the E/C filed a Motion for Summary Final Order, alleging the
IBs had been paid at the correct rate. Rule of Procedure
60Q-6.120(2) requires a finding that there is no material issue of fact, and that the moving party is entitled to judgment as a matter of law. The moving party has the burden to
show there is no material issue of fact. The DCA noted that
F.S. s. 44015(3)(c) provides two “correct rates” at which IBs
may be paid with the distinguishing factor being whether the
claimant is earning 100% of the pre-injury AWW. Here, the
record did not reveal any evidence of the amount the E/C
used to calculate the payment of the claimant’s IBs, which
required reversal of the Summary Final Order. Click here to
view Opinion
Suarez v. Steward Enterprises/Travelers (Fla. 1st DCA
5/12/15) Applicability of Witness Fee Cap to EMAs
The DCA granted the claimant’s Petition for Certiorari which
quashes the JCC’s Order denying claimant’s request to limit
the EMA’s deposition fee to $200 per hour. The EMA indicated his deposition fee was $750 per hour, and required
that the claimant provide a deposit of $750 prior to agreeing
to provide testimony. The EMA asserted he believed he was
not bound by the $200 per hour limit due to his status as
an EMA. The JCC declined to determine the fee, concluding that giving a deposition is not a service contemplated by
either the statute or the rule governing EMAs. Further, the
JCC concluded that because “the EMA is not a mere health
care provider, but an expert,” the fee limitation in section
440.13(10) did not apply. Certiorari is appropriate where a
ruling (1) constitutes a departure from the essential requirements of law; (2) would cause material harm; and (3) cannot be adequately remedied on appeal. The DCA analyzed
those factors against all of the relevant statutes, rules and
case law governing EMAs, health care providers and discov-
ery. They noted that when read as a whole, the limits apply
to EMAs as health care providers. They noted all elements
of certiorari were met in this situation, and a concurring opinion analyzed further potential issues that could arise where
the EMAs fee exceeded the limitation in the statute. Click
Broadspire/Crawford & Tampa and Stone Container
Corp. v. Jones, (Fla. 1st DCA 5/8/2015) Effective
Date of Causation Standard/Attendant Care
Claimant sustained injuries in a workplace explosion in 1981
and has received authorized medical care for orthopedic injuries and psychological care for PTSD since that time. In
October of 2013 claimant sought payment of attendant care
to his wife, which the E/C denied on the basis the care was
(1) needed for an unrelated memory problem and (2) was of
the type ordinarily provided by family members (gratuitous
services). The JCC awarded 12 hours, the maximum allowed under F.S. s.440.13(2)(b)(2013).
The DCA rejected the E/C’s first point on appeal, finding the
JCC did not err in applying the 1981 causation standard.
A lengthy analysis of the second issue concluded that the
JCC erred in awarding the 12 hours of attendant care. The
award was based on the treating doctor’s opinions that such
care was medically necessary, but the only specific services
so identified were for “daily reminders and the expressions
of emotional support” for occasional anxiety attacks. The
DCA found these actions were gratuitous, in contrast to the
statute’s requirement that such services be “extraordinary”
(i.e. assistance with bathing, dressing, administering medications and sanitary functions). Further, there was no evidence of safety related concerns to justify on call care. The
DCA reversed and remanded the attendant care issue for
additional specific findings. Click here to view Opinion
Babahmetovic v. Scan Design Florida Inc. /
Zenith Insurance (Fla. 1st DCA 5/1/2015) 120 day
Rule/One Time Change in Physician
The DCA reversed the JCC’s denial of a one time change
based upon the E/C’s timely denial under the 120 day rule.
Claimant received an opinion from his treating physician a
month after the accident indicating that the workplace injury
(a lumbar strain) was 40% of the cause “regarding the lumbar spine”. Twelve days later, the E/C issued a denial of
compensability asserting the IA was not the MCC of the need
for treatment. The E/C asserted they properly denied compensability as they did so within 120 days of providing payment or compensation under F.S. 440.20(4)(2013). Claim-
ant then requested a one time change which the E/C denied.
The parties asked the JCC to determine whether the IA was
the MCC of the injury and need for treatment and whether
the claimant was entitled to a one time change if the claim
were not compensable. The JCC ruled in favor of the carrier
noting that the doctor determined the claimant’s sprain from
the accident combined with prior pathology and determined
the IA was only 40% responsible for the need for medical
care. In reversing, the DCA examined the concepts of MCC
and compensability, and noted there was no evidence that
anything other than work caused the actual initial injury (the
sprain). As such, they determined MCC was inapplicable to
determine the compensability of the sprain. The DCA then
examined the 120 day issue, reciting the language that upon
initial payment, the carrier is to notify the employee it is paying pending further investigation and will notify the claimant
within 120 days whether they accept or deny claim. The carrier here did not issue a 120 day letter, which the DCA found
precluded a denial based upon that statute/rule. The opinion
holds “…an E/C who pays yet does not provide written notice “upon commencement of payment” cannot avail itself
of the 120 day rule to deny compensability, because it has
elected to “pay” rather than “pay and investigate”. The court
distinguished the 2008 Falcon Farms case which denied a
one time change, noting in that case there was no evidence
of an injury.
*The employer/carrier is filing a Motion for Rehearing and
Rehearing en banc, based on the fact that the issue of the
120 day rule was not preserved below, or otherwise preserved for appeal. The case appears to conflict with prior
case law regarding an employer/carrier’s responsibility under the 120 day rule, and the trigger being if an employer/
carrier is “uncertain” of their responsibility. The ruling also
imposes a procedural default for any carrier that pays any
money prior to filing the 120 day letter, and could encourage carriers to deny claims rather than lose that ability later.
Macy’ s/Macy’s Inc. v.
Calderon (Fla. 1st DCA 5/1/2015) PTD/MMI
The DCA affirmed 4 of 5 issues on appeal without comment.
They affirmed the fifth issue, however of whether the claimant’s date of PTD should have commenced as of “statutory”
MMI, or upon the date of actual medical MMI, per Westphal,
which is awaiting a ruling by the Florida Supreme Court.

Update - Spring 2015 issue

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