Workers’ Compensation – Case Law Update

February 10, 2016 by on News

*Please note the maximum compensation rate for 2016 is $863.00

Here are a few interesting and noteworthy cases:


Kathy Jennings v. Habana Health Care and Gallagher Bassett  (1D15-1749)

In this case, the JCC denied costs claimed by the claimant and held that claimant was not a prevailing party because benefits were provided timely under F.S. §§ 440.192(8) & 440.34(3). The First DCA, however, said that neither of these statutory provisions applied to a party’s entitlement to cost recovery. The Court held that the issue of timeliness is irrelevant to the question of whether a party has prevailed and is entitled to costs.  Here, the Court held that the claimant was the prevailing party as the benefits were provided after the petition was filed. Accordingly, they reversed and remanded with directions to award costs to the claimant.

Take away: consult with your defense counsel when responding to petitions and discuss options to avoid this exposure.


There have been several cases relating to doctors charging more than the fee schedule or more than the allowed $200 per hour for deposition.

Suarez v. Steward Enterprises, 164 So. 3d 132 (Fla. Dist. Ct. App. 2015)

The JCC refused to limit the deposition fee of an EMA according to the statute which only allows $200 per hour for witness fees.  The First DCA said that the JCC’s ruling was a departure from the essential requirements of law and that EMA physicians are health care providers under the statute and, therefore, must abide by the $200 per hour witness fee limitation.

In Luis Rodriguez, Employee/Claimant vs. Demetech Corp./Normandy Harbor Insurance Company, Employer/Carrier/Servicing Agent, OJCC# 14-028630, the JCC held that a physician selected by the E/C in response to the claimant’s one time change request was not properly “authorized” where he charged and was paid above fee schedule.  The JCC said the doctor’s opinion was not actually being introduced into evidence but suggested it may come in only as fact evidence.  Also, the JCC noted that F.S.440.13 (13)(b) allows deviations from fee schedule if the provider specifically agrees in writing to follow certain identified procedures aimed at providing quality medical care to injured workers at reasonable costs, but no such agreement was present in this case.

In Padron v. Majestic Mirror & Frame/Associated Industries, OJCC# 14-004606, the claimant moved to exclude the opinions of an authorized physician because of an agreement that allowed the doctor to charge above the WC fee schedule.  The JCC found that there was no evidence of an acceptable reason for the physician requiring more than the fee schedule and said that the agreement violated the statute.  Therefore, the JCC held that the doctor had never been properly authorized and his opinions could not be introduced into evidence.

However, here is a JCC case in which the JCC overruled a claimant’s objection to admission of a doctor’s opinion where the doctor was authorized and charged over fee schedule for the initial evaluation.  Leon A. Bell, Employee/Claimant vs. Sunshine State Utility Company, Inc./American Interstate Insurance Company, Employer/Carrier/Servicing Agent, OJCC# 14-008051.

Take away: be careful when dealing with physicians who want to charge more than what is allowed.  Their opinions may not be admissible.


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