Sometimes Back to Basics

Wednesday, June 26, 2013 | 0

The last two weeks have brought two interesting settlement issues to my attention. Both were drafted and signed by attorneys with significant experience in Florida workers’ compensation. Therefore, I conclude that some reminders would be of assistance.

Workers’ compensation in Florida is a self-executing system for the delivery of benefits to workers who are injured in the course and scope of their employment. Most workers’ compensation claims filed with the Division of Workers’ Compensation do not come to the attention of the Office of Judges of Compensation Claims. The claims that come to our attention generally involve disputes about specific benefits or settlement of all benefits.

In the vast majority of settlements, there is a minimum amount of information submitted to our offices. Where both parties are represented in the settlement, our judges are asked only to look at whether the attorney fees are consistent with the statute and whether there has been an appropriate allocation of proceeds to account for child support arrearages. However, in the pro-se settlement, we still consider the joint petition, a lengthy and involved expression of a variety of facts about the claim. The joint petition describes the accident which occurred, the medical care rendered, the attainment of maximum medical improvement, the consideration that is being rendered for the settlement and more.

There are two major categories of pro-se settlements. Those in which the injured worker has achieved MMI (§440.20(11)(b)) and those in which the employer/carrier has denied the claim (§440.20(11)(a)). These are distinct from each other under the statute and therefore must be distinct in the settlement process.

Elementary? Certainly.

When any pro-se settlement is concluded, the joint petition may settle the case in which that joint petition is filed. Attorneys cannot include other accidents in that joint petition and seek to settle these additional accidents unless they supply the documentation to allow the required findings about those additional accidents.

For example, a case that involves a 2006 orthopedic knee claim is filed with the OJCC. The joint petition states the intention to settle that accident and a 2003 wrist strain and a 2009 occupational exposure. Neither of these additional dates of accident are in the OJCC database. In other words, no case was ever filed with the OJCC regarding these other accident dates. The joint petition contains no medical information about these additional accidents, and more critically, no MMI date(s) for these additional accidents. The filing attorney is asking the judge to find that the injured worker has reached MMI for these additional accidents so that they can be settled. Upon what would the judge base such a finding of MMI for the wrist or the exposure?

The situation can be more complicated when the multiple accidents are being settled under different statutory authority. Expanding on the example above, perhaps the knee and wrist claims were accepted by the carrier and treated, but the exposure claim was denied (because of late reporting, because of a medical opinion on causation, etc.). 

The OJCC is required by law to report to the Legislature all settlements, pursuant to §440.20(11)(a): (“shall submit to the Legislature a summary of all such reports filed under this subsection annually”). If a settlement order is entered settling three accidents, two of which are (b) and one of which is (a), this reporting becomes complicated. This means that each category of settlement will require a separate order, an (11)(b) for the orthopedic accidents and an (11)(a) for the exposure claim. Each case settled pursuant to (11)(a) will require a separate order to keep the required data, pursuant to the statute’s reporting requirements.

So, if the example were changed, and only the knee was accepted, and both the wrist and exposure were denied, then three orders will be required: an (11)(b) for the knee, an (11)(a) for the exposure and another (11)(a) for the wrist. Only in this way can the data be appropriately collected and reported to the Legislature.

To simplify matters, it is not necessary to file a separate joint petition for each accident settled. However, the joint petition should include the necessary information, either MMI (11)(b) or denial (11)(a) for each accident. The joint petition should express consideration for each settlement distinctly. This will allow the entry of a sufficient order regarding each of the various accidents.

The devil is in the details? Perhaps. However, counsel should know that the details are required and should draft the paperwork accordingly. If multiple accidents, then an MMI or a denial for each. If multiple accidents, spell out the consideration for each.

David Langham is deputy chief judge for the Florida Office of the Judges of Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.