Climate Change Needed in Florida Workers’ Compensation

We need climate change in the State of Florida.  Big time!

What kind of climate change you may ask?  Well, I ask you this:  when you think of “workers’ compensation fraud,” what comes to mind?  The “injured” worker collecting a disability check and caught on video climbing on a roof, working, right?

Well, hold your horses!  That knife cuts both ways.  Carriers and Employers can commit “fraud” too.  It just doesn’t make great headlines when an employer or insurance carrier commits workers’ compensation fraud, because there is usually no spectacular video.  The result:  no media coverage = no political coverage = injured workers get shut out of Tallahassee.

A year or so ago, I wrote about how the citizens of the great State of Florida were slowly boiling to death in a barrage of propaganda regarding our tort system and, particularly, the Florida Workers’ Compensation Law.  If this subject bores you, then by all means:  stop reading!  But do NOT come crying to me — or any other lawyer — about how unfair the system is when you are someone you care about find themselves stuck in this absurdly dysfunctional system of Florida Workers’ Compensation.

Yes, there is a reason for my rant of today’s date:  yesterday (this is no April fools joke) a Judge of Compensation Claims in Gainesville, Florida entered a Final Compensation Order where she found:

“It is uncontested that the representations regarding an ongoing overutilization investigation [made by the insurance carrier and their counsel] were false.”

UNCONTESTED?!   FALSE REPRESENTATIONS?!

Essentially, the insurance adjuster and her counsel contacted the injured worker’s doctor on numerous occasions, both on the phone and in writing, and insinuated that the doctor was under investigation, which the doctor assumed meant he was being investigated by the State of Florida.  Based upon these representations, the carrier subsequently got the doctor to agree to stop treating the injured worker, who he had been treating for 28 years.   He was NOT being investigated by any state agency.  They did all of this without letting the injured worker or his attorney know they were talking to the doctor.

The Judge further held:

“The Employer/Carrier obtained Dr. Keown’s withdrawal by misleading and inaccurate representations, and without those misleading and inaccurate representations, Dr. Keown would have continued to treat the Claimant.”

So, since these facts were “uncontested,” I guess the testimony went something like this:

“Yeah Judge, sorry.  We made a misrepresentation to the doctor who was treating the injured worker and tried to get the doctor out of the case because we thought he was prescribing too much physical therapy.  Our bad.”

WTH?  Am I the only one that thinks this is nuts and obscene?

Florida Statute 440.105(4)(b)(1) states in relevant part:

It shall be unlawful for any person:  To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter (emphasis added).

Hum….

I can see how this would go if it were my client (i.e. an injured worker):

“Yeah Judge, sorry.  I made a misrepresentation to the doctor so that he would prescribe me more physical therapy.  My bad.”

FRAUD!  CLAIM DENIED!  YOU SCUM!  YOU INJURED PEOPLE ARE THE PROBLEM WITH OUR COURT SYSTEM!  LAWSUIT LOTTERY!

Am I overreacting?  I think not.

The climate in today’s Florida Workers’ Compensation system is this:  injured workers are routinely accused of “fraud” and found to have violated F.S. 440.105(4)(b)(1), which, under F.S. 440.09, results in the complete forfeiture of all future workers’ compensation benefits.  In other words, if you overstate your medical mileage, and try to collect an extra $20, you can lose your whole case.  You get the WORKERS’ COMPENSATION DEATH PENALTY.  And believe me:  if you step remotely out of line, you WILL be accused of fraud:  regardless of your intent.  This tactic is frequently used by insurance carriers to coerce legitimate injured workers into a premature settlement for pennies on the dollar.

The punishment for insurance carriers when they violate the statute:  they have to provide the benefits that they were supposed to be providing in the first place.  There is no similar Death Penalty for employers or insurance carriers when they are the ones violating that statute.  In fact, there is no punishment at all that benefits the injured worker.  “Bad faith” left the Florida Workers’ Compensation system some 25 years ago.

Let me be clear about one thing:  the Judge’s order in the instant case was well-reasoned and supported by the law.  I salute her for having the temerity to call a spade a spade.  Nevertheless, reading her order gives one the taste that the only reason the carrier lost this particular fight is that the law governing this case is the law in effect on the date of accident, which was in 1974.  That law provided many more protections for the injured worker than exist today.  Under today’s law:  who knows?   Therein is the silver lining for this particular injured worker.  In 1974, if a carrier acted in “bad faith,” the injured worker had a right to compensation for damages.  Can’t wait to see how this one turns out.

I have no patience for fraud on the part of injured workers.  It is wrong, and those few who do cheat the system make it difficult on the people who are really injured; however, the sad reality is that this statute has caused far more harm to the people of Florida than it has prevented actual fraud.

It was refreshing to read the Final Compensation Order entered yesterday in Gainesville.  Hats off to the injured worker and his attorney who did not bow to the pressure of settlement and took the case to trial.  Florida needs more of this.  Do I feel change in the air?