EG Gazette – October 2022
Compensability During the Holidays
By Libby Nelson, Associate, Orlando
The Holidays are upon us! Just this last week, I walked into a Hobby Lobby and wouldn’t you know – half of their home-goods section was already red and green! This time of year brings joy to all with an abundance of over-the-top decorations, scrumptious food, and merriment with loved ones.
With all the added holiday hustle and hubbub comes an increase in workplace injuries. Take the retail sector, for example. There is significant pressure to make sales, ensure customer satisfaction, and keep shelves stocked at all times. The problem with this holiday demand is that employees, and employers alike, feel rushed. This haste creates an increased risk of workplace accidents such as strains and sprains from lifting heavy boxes, lacerations from hurried packing, getting poked in the eye by a pine needle, and falling from chairs or desks while hanging decorations in workspaces.
Sometimes, the compensability of these holiday-related injuries is difficult to determine. Take Haddock v. Hardwoods of Orlando, Inc, for example. 452 So. 2d 97 (Fla. 1st DCA 1984). In Haddock, a carpenter’s helper was injured five days before Christmas. He was using his fifteen-minute morning break, which was given to all employees, to build a manger as part of a nativity scene for his wife as a Christmas gift. While using a table saw in the workshop to cut a piece of wood for the manger, he cut his hand.
The Employer/Carrier denied compensability, contending the injury did not arise out of and/or in the course of employment. However, it was company policy to allow employees to use the equipment for their own personal purposes during their breaks and free time. Further, items that were made in the employees’ free time were photographed and included in an album the customers could peruse. Customers could then special order a piece from the album, which would then be built by the employee whose piece was originally photographed. The employer would receive a ten percent commission from the arrangement.
The First District Court of Appeals found that the injury was compensable. The employer received benefits, both indirectly by boosting morale and directly from profits sold from these special-order pieces, by allowing its employees to use the workshop during their breaks. They found that the workshop use during breaks was directly beneficial to the employer and, therefore, incidental to the employment.
So, making gifts for your spouse during a break was considered compensable in Haddock. What about driving home for the holidays?
Well, in Grillo v. Gorney Beauty Shops, a Florida Supreme Court decision, the claimant was a traveling supervisor who resided in Miami, Florida. In early November, the claimant was sent to Charlotte, North Carolina to oversee the opening of two new salons. She stayed in Charlotte during the week and was flown back to Miami on the weekends to be with her husband. The employer paid for all but one of the weekend trips. Historically, the employer paid for the claimant’s plane tickets, tolls, gas, and rental cars.
The claimant decided to drive back to Miami on December 21 and was in a motor vehicle accident. Generally, accidents that occur when an injured worker is “coming to” or “going from” the workplace are not compensable. However, there are exceptions to this rule. For instance, when an obligation to furnish transportation is demonstrated, then the hazards of travel become inherent to the employment agreement. Applying this exception to the rule, the Court found that the accident was compensable.
The Court held that the claimant was a traveling employee, and her time on the road was an integral part of her employment. The evidence demonstrated that the transportation was provided by the employer, and the employer considered the claimant working while she was traveling.
When looking at claims such as these, compensability can be hard to determine. Thus, it is important to take a close look at the specifics of each case. Although the holidays can be busy and sometimes stressful, don’t let the compensability of a claim add to the stress! If you have questions (holiday related or not), give us a call. We are more than happy to assist!
A Proactive Approach to Reducing Exposure: The Posted Panel of Physicians
By: Ben White, Associate, Georgia
After just over one year at Eraclides Gelman, one of my biggest surprises has been the lack of valid panels at many job locations. The “control” of medical treatment can have a massive effect on exposure, but failure to be proactive can be costly.
While there remains an ongoing debate of who should have control over an injured worker’s medical care, the Georgia legislature has attempted to craft a compromise with the Panel of Physicians (“Panel”) and managed care organization (“MCO”). Generally, if an Employer properly maintains a Panel or MCO they will have the right to control which physicians will treat the claimant. Of course, Employer/Insurer are responsible for providing reasonable and necessary treatment to effectuate relief from a claimant’s compensable injury. O.C.G.A. § 34-9-200(a)(1). To better understand the implications of having a valid panel or MCO in place, we need to first understand what they are and the requirements for them to be valid.
Posted Panel of Physicians
By far the more common of the two, a panel of physicians must consist of at least six physicians to be valid (but we recommend more). See Board Rule 201. The Panel cannot have more than two industrial clinics, must have at least one orthopedic surgeon, and one minority physician. Id. “Minority” is defined as “a group which has been subjected to prejudice based on race, color, sex, handicap or national origin, including, but not limited to Black Americans, Hispanic Americans, Native Americans or Asian Americans.” Board Rule 201(a)(1)(i).
It is not simply enough for an Employer to “have” a Panel. The Panel must be posted in prominent places upon the business premises and contain information as to the employee’s obligation to report all accidents to the company and as to benefits. Board Rule 61(a). Importantly, online postings do not eliminate the requirement for the Panel to be physically posted on the business premises. Id. Finally, an Employer must be sure to explain how the Panel works to their employees. From my experience, having a standard onboarding process which includes an explanation of the Panel followed by their signature showing they were shown how it works is an excellent SOP to establish.
Managed Care Organization
An employer or the workers’ compensation insurer of an employer may contract with a workers’ compensation managed care organization certified pursuant to O.C.G.A. § 34-9-208 and Board Rule 208. A “workers’ compensation managed care organization” (hereinafter “WC/MCO”) means a plan certified by the Board that provides for the delivery and management of treatment to injured employees under the Georgia Workers’ Compensation Act. The party which challenges the validity of the WC/MCO panel shall have the burden of proving that the panel violates the provisions herein. An employer utilizing a WC/MCO may satisfy the notice requirements of O.C.G.A. § 34-9-201(c) by posting a notice in prominent places upon the business premises which includes the following information:
(A) The employer has enrolled with the specified WC/MCO to provide all
necessary medical treatment for workers’ compensation injuries. An
employee with an injury prior to enrollment may continue to receive
treatment from the non-participating authorized treating physician until the
employee elects to utilize the WC/MCO;
(B) The effective date of the WC/MCO;
(C) The geographical service area (by counties);
(D) The telephone number and address of the administrator for the
employer and/or WC/MCO who can answer questions about the managed
care plan;
(E) How the employee can access care with the WC/MCO and the toll-free 24-hour telephone number of the managed care plan that informs
employees of available services.
After an employee selects a physician from the Panel or MCO, that physician becomes the “authorized” treating physician. An employee is allowed to make a one-time change to another provided on the Panel or MCO, which provides for some level of autonomy from the claimant’s side.
Failure to comply with these procedures can be costly. “When a case has not been controverted but the employer fails to provide any of the procedures for selection of physicians as set forth in O.C.G.A. § 34-9-201(c), the employee is authorized to select a physician who is not listed on the employer’s posted panel of physicians or WC/MCO.” O.C.G.A. 34-9-201(c). Of course, exceptions can occur for things like emergency room visits, referrals, and other necessary procedures. Furthermore, an Employer/Insurer cannot restrict an employee’s medical treatment to the Panel or MCO if the claim has been controverted. Accordingly, it is prudent to carefully investigate the claim prior to filing a denial as losing control of medical treatment is a sure way of increasing potential exposure.
Losing control of medical treatment can mean the difference between a claimant being out of work for an extended period versus modified duty with reasonable restrictions. There are many examples of claimant-friendly doctors opining surgery was necessary, only to have a conservative approach return the injured worker to maximum medical improvement.
If you find yourself wondering if you have a posted panel or MCO, it’s worth you and your company’s time to find out. Eraclides Gelman attorneys are continuously working to compile employer-friendly Panels that will prevent exposure from ballooning. Reach out to an Eraclides Gelman attorney and we can provide a tailored Panel that will meet the needs of your employees while reducing your company’s exposure.
A DAY LATE AND A DOLLAR SHORT. THE UNTIMELY REPORTING DEFENSE AND ITS EXECUTION.
By: Kayli Marston, Associate, West Palm Beach, Florida
You have received a report of a workplace accident. The date of accident was 31 days ago. You recall someone telling you that an accident must be reported within 30 days. What now?
Florida Statute 440.185(1) states that “an employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury.” Failure of the claimant to report an accident to the employer will prohibit them from filing a petition under this chapter unless they meet four specific exceptions.
The exceptions are:
(a) The employer or the employer’s agent had actual knowledge of the injury;
(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;
(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or
(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.
But, what do we do with all this information? If the claim was reported after 30 days from the date of the alleged accident, you should begin by investigating the reporting of the accident to the employer. Obtain as much information about the report as possible. Some important questions that you may ask initially could be: Who did the claimant report the accident to? When was the employer’s first knowledge of the accident? Did anyone the claimant worked with on the date of the alleged accident see or know about the accident? What reporting procedures are in place for the company when accidents at work happen? How are those reporting procedures given to employees?
These questions will allow you to determine several things. You should be able to ascertain whether the claim was actually reported to the employer or someone within the company within 30 days. Otherwise, you may be able to determine if the claim falls within the exceptions listed above.
As for the first exception (440.185(1)(a)), the Court in Marion County v. Hutch held that “actual knowledge” should be defined as “direct and clear knowledge or knowledge of such information as would lead a reasonable person to inquire further.” 983 So.2d 689 (Fla. 1st DCA 2008). In that case, there were two supervisors present at the scene of the alleged incident. Id., 690.The record did not contain any evidence that either supervisor present at the scene witnessed the claimant’s accident.
Therefore, the Court determined that the employer did not have actual knowledge of the accident. Employer/Carrier was able to establish that the claimant failed to immediately report his accident and injury to the supervisors present at the scene or to any other reporting officer within the 30-day reporting period. Id. The questions above should allow you to flesh out more details regarding the “actual knowledge” of the employer, which will allow you to determine if the untimely reporting defense is the defense for you.
Now, you may be wondering about these exceptional circumstances mentioned in 440.185(1)(d). The JCC must have “competent, substantial evidence that there were exceptional circumstances. See, Clay County Sch. Bd. v. Robison, 725 So.2d 425, 426 (Fla. 1st DCA 1999). This means the JCC must rely on specific exceptional circumstances given by the Claimant and ensure they are on the record in order to make the finding that the Claimant was excused from reporting the accident within the 30 days after the alleged accident. A finding that the Claimant actually sustained an injury is not an exceptional circumstance contemplated by this section. Hutch, 983 So.2d 689, 690.
In order to prepare for your untimely reporting defense, depositions will be vital. After you have asked your initial questions and your attorney has deposed the claimant, it is going to be important to get testimony on the record regarding the claimant’s lack of reporting and the employer’s lack of knowledge. In my experience, ensuring the deposition clearly lays out the fact that the claimant’s supervisor was not aware of the accident within 30 days of the accident is extremely important. The supervisor, or whoever has knowledge of the reporting procedure and how they are disbursed, should also be prepared to testify about the reporting procedures and how they know the claimant was aware of those procedures. Ultimately, it may come down to who the judge finds more credible – especially if the claimant is alleging that he reported the accident timely to his supervisor directly.
Always remember, a claimant bears the burden to prove every aspect of her claim, including entitlement to benefits not paid. See Broadspire v. Rose, 24 So. 3d 694, 696 (Fla. 1st DCA 1009). Where that burden is not met, the benefits sought must be denied. However, it is absolutely crucial that your attorney prepare for an untimely reporting defense with clear evidence that the employer (1) received no report of the injury within 30 days and (2) did not have actual knowledge of the accident. A claimant’s deposition should also be conducted in order to obtain further information about any “exceptional circumstances” and whether the cause of the injury was unknown at the time of the alleged accident.
Editors:
Victoria Olson, Georgia
Abby Loeffler, Jacksonville