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Board of Directors
Jackie Hilston/Chairperson
The Zenith Insurance Company
Sarasota, FL


Melanie Stanisic/President
Darden
Orlando,FL


Bob O'Halloran/Vice President
Summit Claims Management, Inc.
Lakeland, FL


Lorie Dove/Secretary
Commercial Risk Management, Inc
Tampa, FL


Victor Marrero/Director at Large
Seminole Tribe
Ft. Lauderdale, FL


Denice Ferencak/Director at Large
Walt Disney World Resort
Kissimmee, FL


Tom Chasser/Director at Large
Travelers Insurance Company
Orlando, FL


Executive Director
Stacy Hosman
Hosman & Associates, Inc.
Dade City, FL

Breaking News!

 


National Academy of Social Insurance Workers’ Compensation: Benefits, Coverage, and Costs 2012 (August 2014) -Article by:  Rafael Gonzalez, PMSI


Florida Court Declares Workers' Compensation as Exclusive Remedy Unconstitutional

Miami, FL (WorkersCompensation.com) - Florida's 11th Circuit Court has issued an opinion declaring workers' compensation as an exclusive remedy unconstitutional. In a case brought before the court claiming that the current workers' compensation law did not provide adequate benefits compared to the tort system, petitioners asked the court to decide if injured workers should have the right to pursue damages outside of the workers' compensation system, thereby negating the exclusive remedy principle. 

The basis of their case was that repeated legislative reforms have eroded the benefits initially intended under original workers' compensation legislation.

The Petitioners included Florida Workers Advocates (FWA), and the Workers' Law and Advocacy Group (WILG). WILG is a national organization of attorneys representing injured workers. FWA is an organization of attorneys representing injured workers in Florida. FWA's counsels are Mark L. Zientz, Esq. and Ricardo Morales. Ramon Malca, Esq. represented WILG. 

Circuit Court Judge Jorge Cueto, in a strongly worded opinion, has declared the exclusive remedy provision, statute 440.11, unconstitutional. Judge Cueto cited the "numerous repeal of benefits since 1968", and specifically the Florida reforms of 2003, whereby the act "no longer provides any benefits for permanent partial disability". He wrote, "I find that the Florida Workers' Compensation Act, as amended October 1, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. 440.11 is constitutionally infirm and invalid."

Florida's Attorney General may now attempt to intervene for the purpose of filing an appeal. The AG has 30 days with which to file such an appeal with the Third District Court of Appeal. 

According to a summary written by one of the petitioners attorneys, Mark Zientz, "in the likely event of an appeal" they plan to ask the Third District Court of Appeal to 'pass through' jurisdiction to the Florida Supreme Court. This is because two other cases challenging the constitutionality of Florida's 440 statutes, Westphal and Castellanos, are already pending before the Supreme Court.

Article by:  Robert Wilson, WorkersCompensation.com


5-Hour Law and Ethics Update

As part of the passing of HB 725 on October 1, 2012, adjusters are now required to complete a mandatory 5-Hour Law and Ethics Update CE Course every 2 years specific to the license held by the licensee. The new law will affect those licensees who began their continuing education cycle on November 1, 2012 and will complete the compliance cycle in October, 2014.

This requirement is directly tied to CE compliance cycles ending 9/30/14 or earlier, and CE compliance cycles ending 10/31/14 or later. The licensees compliance period begins with the end of your birth month following the second anniversary of the first license issuance date, and then biennially thereafter.  In addition to the five-hour course, adjusters will be required to participate in 19- hours of elective credits, approved by the department and focusing on their specific line of insurance.

HB 725: Understanding the Upcoming CE Changes
                                              

 
NEW APPELLATE DECISION- Opinion Filed September 23, 2013 
Bradley Westphal v. City of St. Petersburg

Case No. 1D12-3563
 
Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management/State of Fl.,___So.3d___(Fla.1st DCA 9/23/2013)Constitutionality of Cap on 104 Weeks of TTD/Ripeness of PTD claims
 
In a lengthy 18 page majority opinion, followed by 58 pages of dissenting views, a bitterly divided First District Court of  Appeal receded en banc from the February 2013 three judge panel opinion in Westphal v. City of St. Petersburg, and reaffirmed the validity of the Florida Workers’ Compensation law.  Sharply reversing course, the Court determined that the 104 week cap on TTD benefits is constitutionally sound.  The Court, however, went further.  The Court also receded from its 2011 en banc decision in Matrix Employee Leasing, Inc. v. Hadley, and ruled that a claimant in TTD status at the expiration of the 104 weeks is eligible to receive PTD benefits.  This mammoth opinion may not be the last word because the Court also certified the following question to the Supreme Court of Florida:

"Is a worker who is totally disabled as a result of the work place accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at maximum medical improvement by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?”  

The question, however, might remain unanswered by the Supreme Court.  The District Court’s certification of a question does not, by itself, send the case to the Supreme Court for review. A party must first seek review in the Supreme Court.  It remains to be seen whether the City will seek Supreme Court review or will simply pay the nine months worth of past PTD benefits now due to Mr. Westphal. As the prevailing party Mr. Westphal is unlikely to seek review in the Supreme Court. Moreover, the  Supreme Court is not required to accept the case even if asked.  The Supreme Court is authorized to consider a certified question, but is permitted to decline to do so.

  Assuming no review by the Supreme Court, we should consider the en banc decision to be a victory for industry, albeit one with a caveat. Under Westphal, a claimant who remains in TTD status at the expiration of the 104 weeks of temporary benefits becomes entitled to PTD benefits for as long as the claimant remains totally disabled. When that claimant is eventually released to return to work the entitlement to PTD benefits ceases.  In practice, it means that a very small number of claimants will receive at least some PTD benefits before reaching overall MMI. Although this may ruffle some feathers in the claims community, the original Westphal decision had far-reaching and potentially disastrous consequences for the workers’ compensation system. As noted by Judge Wetherell in his dissenting opinion, the panel decision, had it survived, "could have led to the incremental dismantling of the entire workers’ compensation system.”  While the en banc opinion may not be perfect, its predecessor was far worse. Stay tuned.
Click here to view the full Appellate Decision
www.hrmcw.com

More interpretation from MKRS Law...Westphal Further Analysis
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