In the September Journal you published some comments from attorney’s Thomas Martin and Martin Tobin. If Mr. Martin thinks the wrongful death statutes in Florida are bad, he ought to reread F.S. 440.15, the death benefits section of the W.C. law. There is currently a $100,000 “cap” regardless of how much the employee was earning, or how many children he or she had, or how old the kids are.  The age limit on children’s benefits is also lower than the general law. A worker killed on the job whose employer was 100% at fault for the death, (didn’t Publix have five of these in the past few years at their warehouse in Broward Co.?) would have to pay, in death benefits, a maximum of $541 per week to ALL the dependents, for a maximum of 185 weeks (a little over 3 ½ years). Nothing more!

Mr. Tobin decries abusive use of “Opinion for Sale” IME doctors. He’s right of course, as is Mr. Martin, but there is a darker side in the area of workers’ compensation too.

One compensation insurer has on its payroll a medical doctor licensed in this state whose job it is to determine if treatment requested or prescribed by another doctor, usually a specialist, is “medically necessary.” This “employee” of the carrier never sees the “patient” and does only a paper review. He is not a “specialist,” except in lecturing and writing on how to deny claims for medical benefits. He writes his report on a form, which requires him to enter only three words, plus his signature. Those words are “not medically necessary.” Even if he is proved wrong, the delay caused by his three little words can take years. Years is NOT an exaggeration. Under our current W.C. law if, for example, the injured worker is represented, his or her attorney can file a request for assistance for, let’s say, the disc surgery prescribed by the carriers’ authorized surgeon, then wait thirty days for a response which rarely comes and almost never is positive. Then the lawyer will file a petition for benefits and wait for the cursory “Notice of Denial” based on “not medically necessary.” Then the real wait begins. Here in Dade County, two to three months will elapse before a docketing order is entered. Then eight to ten months will elapse before the case is heard at a mandatory mediation. Then, if no resolution, ten days to 2 weeks will pass until a pre-trial takes place. Then, another four to six months before the hearing before a JCC is set (for 1-1 ½ hours). Why does it take so long to get a hearing? In 1974 Dade Co. had nine full time compensation judges, today there are five. If testimony is not concluded in an hour and a half, you wait a few more months for another hour and a half to finish up. Then about two weeks goes by and you get a favorable ruling, followed by another few weeks until the order is signed. Is it over? No way!

Usually, if the injured worker has prevailed and the JCC has awarded the requested surgery, the defense attorney will file a motion for rehearing. Under the W.C. system (and unlike civil rules) the filing of the motion does NOT toll the time to appeal. So most, if not all JCCs who can’t fit a motion for rehearing on their calendars for a date within thirty days of the entry of the order will sua sponte vacate the order and set the hearing on rehearing for a month or two down the road. Most rehearings are unsuccessful, and the order requiring the provision of medical care is re-entered, starting the 30 days to appeal all over again. Is it over? No way.

Notwithstanding the fact that there is competent substantial evidence to support the JCCs order, many carriers will take an appeal. For their $250 filing fee they can delay providing the medical care for another nine months to a year. So the injured worker prevails on appeal. Is it over? Not yet.

If no request for rehearing is filed in the appellate court, the mandate will issue in 15 days and the benefits order provided by the JCC are due in thirty days thereafter. But it’s still not over. Sometimes it is not easy to get the doctor, who for example prescribed surgery three years earlier, to see the patient again. The doctor may no longer be accepting W.C. patients (if the doctor has realized he or she can’t make a living on $27 per visit). Getting another appointment may take weeks. The claimant may need to see a new doctor. The doctor may need to redo an MRI, or the patient may have deteriorated and need some psychological care to get him or her ready for that new big operation. The request for authorization for the psychiatric evaluation goes to… this is not a tough one … think back … YES, Dr. Not Medically Necessary, a M.D. And guess what, the psychiatric evaluation and treatment is NOT MEDICALLY NECESSARY. So the injured worker’s attorney files his request for assistance…

As Paul Harvey says, “Here’s the rest of the story.” Remember that hearing that took place years ago, where the parties presented evidence to a JCC on the issue of reasonableness and necessity of surgery? Dr. Not Medically Necessary, M.S. probably never testified. Probably couldn’t testify. For, under Chapter 440, no medical opinion may be accepted by the JCC unless the doctor is an authorized treating doctor (authorized by the Carrier that is), an IME (selected only from the list of doctors set up by the carrier), or an expert medical advisor (appointed by the Division of Workers’ Compensation). So Dr. Not Medically Necessary, M.D. can’t testify unless he is selected by the carrier as their IME. But then he would have to see the patient and be a specialist in the field involved in the controversy (which he isn’t).

Is it over yet? NO, again! In a recent case argued before the First DCA (the only DCA to hear W.C. appeals statewide), the issue was attorney fees. Yes, when an injured worker hires an attorney to represent him or her, and the attorney prevails, a reasonable fee is due from the carrier to the claimant’s attorney. So this attorney spends 300 hours and fights for authorization for surgery and wins. But no doctor will now do the surgery because the patient has deteriorated and can no longer be helped by the surgery. So the carrier argues to the JCC and then the appellate court that the attorney got no benefits for his client and therefore is not entitled to a fee!

Another kicker. If the carrier delayed medical care and caused the death of the injured worker, and if the death occurred more than five years after the industrial accident, THERE IS NO DEATH BENEFIT DUE ANYONE.

Oh, one other thing: the carrier is immune from suit for its wrongdoing. So says the Third DCA in Montes de Oca, 692 So.2d 257 (1997).

Mr. Martin, Mr. Tobin, you ain’t seen nothing until you’ve entered the wonderful world of Workers’ Compensation in Florida.

By: Mark L. Zientz, AFTL Member

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