Langham: Medical Mileage and Legislative Lessons
Monday, April 5, 2021 | 0
In 1935, workers' compensation came to Florida. We were not among the first to adopt this social safety net; in fact, we were among the very last. We are perhaps forever grateful to have beaten Mississippi to the punch; Mississippi was last in 1948.
There have since been those who lament their perception that workers' compensation has contracted in its coverages and benefits. They decry a "race to the bottom" in which they perceive state legislatures engaged in a cost-focused competition to attract industry and jobs.
But, workers' compensation has also seen an expansion of benefits over the years. One example is the 1964 decision of the Florida Supreme Court in which "medical mileage" was judicially added to the Florida workers' compensation act. The Legislature had not included this benefit when it adopted the law.
The court noted, "it is true ... that Chapter 440 does not specifically require or authorize payment of travel expenses incurred in obtaining medical treatment."
However, the court also noted that the law did require the employer "to furnish to the employee ‘such remedial treatment, care and attendance’ as the injury shall require." From that requirement, the court's analysis addresses a hypothetical ambulance ride, noting that it would not "technically" be such care.
From that premise, the court reasoned that no one "would question payment of an ambulance charge." The court next noted that "if" medical care were offered out-of-state, such an offer without accompanying transportation would be "an empty gesture."
Upon its two hypotheticals and upon its finding of fact, the court relied upon decisions by other states that had required medical mileage payments, including Minnesota, Nebraska and Oklahoma.
On a side note, appellate courts are generally expected to utilize the facts established in the record by lower tribunals, but there are those who advocate for appellate fact finding.
The Minnesota case cited by the Florida court reached its conclusion to award transportation based upon it being "humane" and that the law "should be liberally construed."
The Nebraska analysis is largely a deferral to the Minnesota analysis in Huhn.
Finally, the Oklahoma case involved railroad fare and reaches conclusions as to it being reimbursable without extensive elucidation.
Thus, in Mobley, Florida's court added an element of benefit through inference. In part, at least, this interpretation was bounded upon the "liberally construed" foundation in Huhn. Though the original Florida workers' compensation law did not include statutory reference to liberal construction, the Florida court had by 1964 long committed to that sentiment.
In Parker v. Brinson Construction Co. (1955), it noted itself "committed to the proposition that the Compensation Act is to be construed more favorably towards the working man." That same year in Townsley v. Miami Roofing and Sheet Metal Co., it held that "it is the duty of the court to liberally interpret the act in favor of a claimant." Thus, Mobley may have been influenced by that liberal construction sentiment indirectly without statement or citation, but certainly so in the reliance on Huhn.
In 1990, the Florida Legislature corrected the court's liberal construction precedent with the creation of section 440.015. This provides:
"Disputes concerning the facts in workers' compensation cases are not to be given a broad liberal construction in favor of the employee ... or ... the employer."
In 1993, any doubt that this foundation applied to both factual and legal disputes was clarified with the Legislature's addition of "and the laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer."
More than a dozen years after the court decided Mobley (1977), the Florida "Legislature added a provision to section 440.13 expressly authorizing such medical mileage." As the Florida 1st District explained later, that statutory provision remained until "the Legislature amended section 440.13 in 1993 (when) it deleted this provision."
The District Court's analysis of that 1993 deletion was essentially that the Legislature had not changed the employer's obligations regarding transportation by removing this from the statute.
The District Court conceded in Bair that "the Legislature is presumed to have intended to alter the law unless the contrary is made clear." But, it contended that after a "court has construed a statutory provision, subsequent reenactment of that provision may be considered legislative approval of the judicial interpretation."
The District Court found, therefore, that the removal of medical mileage from section 440.13 in 1994 was "ambiguous." It essentially concluded that because the 1993 statute nonetheless retained the "care and attendance" language that the Mobley court found so inferentially persuasive in 1964, the 1993 Legislature must have been endorsing Mobley and the court-created medical transportation benefit from 1964.
This perhaps ignores a curiosity or two. First, what did the Legislature intend when it enacted the transportation statute in 1977? Did it intend to alter the law? If it did not so intend, how and where is there a clear indication to the contrary? Some, perhaps, would find that clarity in its seeming adoption of Mobley in 1977. However, that might have been worthy of a sentence or two in Bair.
But, in a broader sense, when the Legislature in 1993 removed the medical transportation statute enacted in 1977, the liberal construction foundation upon which Mobley was built had been legislatively negated and disaffirmed. In point, the very foundation of the Mobley analysis no longer stood, and thus its precedential value was at least questionable by the District Court. For some reason, that distinction was interestingly not discussed by the Bair decision. Possibly, the court recognized and was unpersuaded by the resulting flaw in Mobley, but it is interesting that it was not explained.
In this regard, the dissent of Justice Wells in Aguilera v. Inservices Inc. (2005) is interesting. Justice Wells recognizes the import of section 440.015 and argues that the Florida Supreme Court reliance on Sibley v. Adjustco Inc. (1992) was misplaced in light of its facts. The work accident in Sibley was governed by the 1989 law. As Justice Wells noted, in questioning the court's 2005 reliance on that precedent, "Sibley was decided (by the trial court) before the passage of section 440.015, Florida Statutes." Thus, recognition of the potential for a foundational shift is not unheard of in such analysis, specifically as to the sentiment of section 440.015.
The recognition of the 1993 change to section 440.015, seemingly overlooked or disregarded in 1996 in Bair, appears to first receive recognition by the appellate court in April 1998 (Orange Cty. MIS Dept. v. Hak) and is recognized repeatedly that year (Okeechobee Health Care v. Collins and McClung-Gagne v. Harbour City Volunteer Ambulance Squad Inc.).
This is an intriguing history of Florida's workers' compensation evolution. The court implied a benefit based upon imported Minnesotan, or broadly inferred, liberal construction. Then followed a subsequent legislative enablement of that creation, a statutory transportation benefit published for 16 years.
During that 16 years, the Legislature specifically countermanded the liberal construction foundation of the court's implied benefit. And, when the Legislature later removed that statutory transportation benefit, the District Court concluded that the Legislature nonetheless must have been legislatively endorsing the (then) 30-year old Mobley inference decision that liberally constructed that benefit in the first instance.
And, to make it all the more interesting the District Court chose not to explain the inference, the import of section 440.015 or the apparent foundational shift.
From the standpoint of legislatures, the lesson is perhaps that judicial shift may simply be easier than legislative change. It requires fewer votes and perhaps less time and process. Similarly, it often lacks broad public input that the legislative process may provide. Some would note alternatively that judicial change may be more of a challenge, as it nonetheless requires both a fitting case, a controversy and a litigant with the resources to individually pursue the change.
From the perspective of the courts, the path to a Minnesotan liberal construction is both curious and intriguing, but the later interpretation of the Legislature's removal of that statutory benefit is more intriguing still. In retrospect, one might wonder if the patent change to that liberal construction was argued and ignored in Bair or neglected by the parties.
In a larger context, the "race to the bottom" argument needs to be considered in the broader nature of workers' compensation. Is it practical to conclude that legislative enactments are necessarily reducing benefits in the aggregate, or is it possible that such legislative action may merely address some judicially implied expansion of benefits that legislatures perhaps did not intend? Is it for courts or legislatures to add or detract from the benefits and burdens of the respective parties to the Grand Bargain?
Is the Grand Bargain about what the legislature gives or takes away? Is its measure of viability in what the courts give and the legislature takes away? Are there as likely instances of what the legislature gives and the courts takes away? In the overall analysis is there recognition that anything taken away must come from somewhere, just as anything given must. That is to say, there are two parties to the Grand Bargain, and the benefit to either is necessarily a burden in some fashion to the other.
None of this presupposes the need for, appropriateness of or cost of medical transportation (or any particular benefit). Sound policy justification can be made on either side of such debates by policymakers.
This blog is neither an endorsement or criticism of any benefit under the law. The point here is that the analysis of the legislative enactments by courts is intriguing and worthy of consideration, regardless of the underlying simplicity of a particular benefit such as medical transportation. And, some might say, it may be an analysis of how one defines "policymaker."
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.