December 26, 2002

Injured Workers May Be Denied Right to be Treated Humanely.

Rodrigo Aguliera and Patricia Aguilera

(28 Fla. L. Weekly D76)

Judge Gersten and Senior Judge Nesbitt of the 3 DCA joined in an opinion which granted rehearing to a workers’ compensation insurance carrier, it’s managed care organization (MCO) and one of its managed care coordinators (MCC). The order on rehearing reverses a previous order entered over a year earlier in which Judges Shevin and Nesbitt concurred in favor of the plaintiffs, an injured worker and his wife. The new decision grants workers’ compensation carriers and their managed care partners an absolute license to inflict physical and emotional harm, kill, maim and terrorize injured workers but remain immune from suit for doing it.

In it’s substituted opinion dated the day after Christmas, 2002, the two judges in the majority of the three judge panel found that after an injured worker suffers injury on the job, the compensation carrier can act outrageously, deny benefits, delay and deny medical care, act with impunity in handling the claim, and even cause the death of the injured worker but not be responsible for anything other than the meager compensation benefits provided by the workers’ compensation law.

The majority said, contrary to the dissent by Judge Shevin, that any injury caused by delays or denial of medical treatment were merely incidental to the original injury and may not be the basis for an independent suit. The majority concluded that unlike any other type of insurance, workers’ compensation carriers by their actions and inactions can injure the worker time and time again after the original injury and remain immune from suit for any additional mental and physical injuries caused by their own actions, even if those actions were intentional and outrageous.

The facts as alleged in the complaint can only be described as repulsive to any citizen of this community. Those allegations are also set forth in full in the dissenting opinion. Suffice it to say that the trial court and Judge Shevin (dissenting), both agreed that the conduct of the compensation carrier and the managed care organization and its employee was a deliberate and willful indifference to the injured worker. That conduct is alleged to have included lying as to available benefits (which heretofore was enough to strip the employer/carrier of immunity in the Third District. See Francoeur v. Pipers, 560 So. 2d 244(Fla. 3 DCA 1990)), deprivation of reasonable and necessary medical care and insistence upon medical tests which were contraindicated by plaintiffs medical condition.

If it becomes final, this decision of the 3 DCA, a decision of two judges, one of whom, Senior Judge Nesbitt, flip flopped, is truly a license to abuse injured workers. If the carrier’s actions happen to result in the death of the employee, neither the estate nor the dependents would have any claim other than for workers’ compensation benefits. The death benefit is only available for 5 years post accident. After that there is no death benefit. I shudder to think what will happen when insurance adjusters and claims managers find out that the injured worker who needs extraordinarily expensive medicines and round the clock attendants, can have those benefits denied or delayed and if death results more than 5 years post accident, the carrier is totally off the hook. Even before 5 years, with the maximum death benefit being $100,000.00 paid out over a period of years (at the current maximum compensation rate the entire death benefit for the whole family would be exhausted in less than three years and 2 months), it is much less costly to let them die than to provide expensive medical care and pay indemnity benefits. We have regressed as a society to where we were before wrongful death statutes were enacted. The two 3 DCA judges in the majority seem more afraid that juries will hold insurance carriers and MCO’s accountable for their willful actions than that injured workers may be mistreated for profit. How sad.

This case should be reviewed by the entire 3 DCA, en banc or by the Supreme Court of Florida. Public decency demands that no one should be allowed to carry out the responsibilities of a workers’ compensation carrier and/or MCO, treat the injured worker like this injured worker was treated and then be punished by having to provide the benefits the law requires in the first place.

I am Mark L. Zientz, Esq. I represent injured worker Rodrigo Aguilera in his workers’ compensation claim. I have no financial interest in the outcome of the suit against the compensation carrier or the MCO. I do believe that I have a moral and ethical responsibility to the community to comment publicly when wrongdoers are allowed by our courts to continue to do harm with impunity.

Mark L. Zientz

9130 S. Dadeland Blvd.

Suite 1619

Miami, Fl. 33156

305-670-6275