The Florida Bar Workers Compensation Section. News & 440 Report

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1 The Florida Bar Workers Compensation Section News & 440 Report Volume XXX, No. 3 Fall 2009

2 News & 440 Report The NEWS AND FOUR-FORTY REPORT is published by The Florida Bar Worker s Compensation Section Chair Richard Chait, Miami Chair-elect Richard Thompson, Jr., Sarasota Secretary Jacqueline L. Blanton, Sarasota Treasurer Alan Kalinoski, Orlando Immediate Past Chair Tuwana J. McMillan, Orlando Editor-in-Chief Michael J. Winer, Tampa Guest Editor Willaim H. Rogner, Winter Park Program Administrator Arlee J. Colman, Tallahassee Layout Lynn M. Brady, Tallahassee All correspondence and letters to the editor should be addressed to: Michael J. Winer Editor-In-Chief 110 N. 11th St. Fl 2 Tampa, FL Statements or expressions of opinion or comments appearing herein are those of the editor(s) and contributors and not of The Florida Bar or the Section. Cover Shot: The cover photo is an aerial view of the new First District Court of Appeal under construction in Tallahassee, Fla. Photo credit: Reprinted with permission. In This Issue Editor s Comments: Here I Go Again!... 3 Lawyers Earn Board Certification in Workers Compensation... 4 My Luckiest Break, or How I Managed to Avoid the Practice of Real Law... 5 Fair Districts in Florida... 8 Lawyer Professionalism in the 21st Century... 9 Section, OJCC Survey Members on Judges and State Mediators...11 Survey Results...12 Admissibility of Unauthorized Medical Opinions...14 Notice from the Office of the Judges of Compensation Claims...16 Rotator Cuff Injuries...17 Workers Compensation Section Annual Meeting...19 OJCC Update, October Enforcement of the Compensation Judge s Order, Certification of Contempt, and Rule Nisi A Practitioner s Roadmap...21 Asserting Privilege and the Potential Third Party/Agent...26 The Workers Compensation Trial Advocacy Workshop A Maine Perspective...28 Apportionment: Pointing Fingers...30 One Man s Opinion...33 Another Proposed Decrease in Workers Compensation Insurance Rates...34 Case Law Update...38 Section Statement of Operations...44 Workers Compensation Section - News & 440 Report

3 Message from the Chair: Greetings to My Fellow Colleagues: By Richard E. Chait, Esq., Miami On July 1, 2009, I welcomed receipt of the gavel and assumed the position of Chair of the Workers Compensation Section of the Florida Bar. I wish to extend my sincere thanks and gratitude to our Immediate Past-Chair, Tuwana McMillan, for her dedicated year of service. It was a pleasure serving as her wing man. There was certainly a well paved path leading up to my becoming Chair, for I have been involved in the leadership of the workers compensation bar throughout my career in various capacities. Moreover, since the Legislature and numerous special interest groups made an Emma Murray Fix a top priority during this past legislative session, I literally spent every week of session in Tallahassee representing the interests of the Workers Compensation Section. Our entire section should be grateful to our lobbyist, Fausto Gomez, who continued to demonstrate his unique abilities and valuable insight. After spending the entire session assisting the orchestration of legislative strategies to prevent unfavorable reform, including having markedly different bills passed out of the House and Senate, we were the victims of an eleventh hour trade during the final hours of session. As you know, the end result was to pursue a quick fix by removing the word reasonable from Florida Statute Section All other compromised positions were flat out rejected. As a longstanding practitioner and your presiding leader, it deeply troubles me to practice in such a complex workers compensation law where the standard for contingency attorney s fees no longer contains the word reasonable. It seems that there has been a blatant disregard toward the well established criteria cited in Rule 4-1.5(b) of the Rules Regulating The Florida Bar. Accordingly, one of my agenda items during this term will be to make every effort to embellish the fact that this criteria exists for a purpose and should not be discounted with the mere striking of one word. Of course, this will require a cohesive and collective effort on the part of the Executive Council and section members. This position of Chair is being assumed during a turbulent time. The economy and the residual effect of the 2003 workers compensation reform, with less than one year of recovery time arising from the Emma Murray decision, has certainly shaken the core of the workers compensation practice. Firms around the State are struggling to find balance and solvency. Layoffs are occurring at an alarming rate. More attorneys are switching from job to job now than at any other time in my career. Nevertheless, I will not allow this to impact upon my spirit, wisdom or leadership goals. Now is the time that we must unite and persevere. I am confident that our Executive Council will rise to meet this challenge with me. I am hopeful that the remainder of this section will follow suit. It is only a matter of time until we have another opportunity to present our sound legal arguments to the Florida Supreme Court. It is critical that we have the proper case with a well established record. Once again, I urge each and every one of you to participate in this process. We all see various cases and fact patterns on a daily basis. We do not want the wrong case to go up on appeal. Most of you are familiar with Brian O. Sutter, the trial attorney in the Emma Murray case. Once Brian realized that his case was destined for the Supreme Court, he formed a task force which worked tirelessly to ensure that the proper record, briefs and legal arguments were presented. I would very much encourage this type of united approach when the opportunity next presents itself. Brian has agreed to serve as a clearinghouse with respect to the HB 903 challenge and will be chairing a committee in this regard. Please feel free to bring your ideas to his attention to keep this process fluid. Over the past year, the Workers Compensation Section has reached out to the judiciary in an effort to establish ongoing dialogue and a mutual understanding of the challenges that we face as practitioners. This has included developing a beneficial rapport with the Director and Chief Judge of DOAH Robert S. Cohen, the Deputy Chief Judge of Compensation Claims David W. Langham and many of the Judges of Compensation Claims from around the State. We had more judges and dignitaries attend our Judicial Luncheon at the recent FWCI Convention than at any other time during my tenure with the Executive Council. I wish to thank all of the guests who attended, and our section looks forward to future engagements. We have also established a relationship with members of the First District Court of Appeals. Last winter, one of the panels traveled to South Florida to conduct oral argument. This presented an unprecedented opportunity to fortify our relationship with the Court outside of Tallahassee. It is my hope and intention that by continuing to enhance these professional relationships, the various members of the continued, next page Workers Compensation Section - News & 440 Report

4 Message From the Chair, from page 3 judiciary will develop an even better appreciation for the quality of practitioner that exists in the workers compensation arena. In addition to our continued monitoring of the legislative landscape and our search for Emma Murray II, it is also our goal to work with Chief Judge Cohen, Deputy Chief Judge Langham and the Workers Compensation Rules Advisory Committee to implement favorable amendments to Chapter 60Q-6 Rules of Procedure for Workers Compensation Adjudications. Our intent is to ease the procedural burden of the day to day practice. While the legislative outcome may be temporarily out of our control, I truly believe that we can serve an instrumental role in this important rule making process. Once again, I will be looking for assistance and support from our Executive Council in this regard. Despite the ever present challenges which face today s workers compensation practitioner, I urge you to remain vigilant and professional. We cannot give up. We must continue to treat each other with the utmost degree of respect and civility so that we command the support of the Bench, the Legislature, and most importantly, each other. I look forward to working with all of you throughout the next year and well into the future. Richard E. Chait, Chair Internet Marketing Tips for New, Small Law Firms An unprecedented series of law firm layoffs has thousands of lawyers looking for work. Many are hanging out their own shingle for the first time either as solo practitioners or as part of two- to five-partner micro firms. To turn the pink-slip trend into a profitable new business quickly in this tough economy, every non-billable hour needs to generate leads and build business. The following are Internet marketing tips for budding sole practitioners and micro practices: Advertise online. Print yellow page advertising alone won t cut it. The investment for a one-time, print display ad is an expense unsupported by demonstrated or measurable data. Investment in online marketing will likely yield more qualified leads and enable easier measurement of ROI as compared to a similar investment in print advertising or print directories. Invest in a professionally designed and developed website. A polished, professional website is a must-have for anyone launching a new firm, regardless of size. In 2008, 32 percent of solo attorneys and 20 percent of firms with two-to-five attorneys did not have a website, according to a 2008 Harris Interactive study on marketing among small law firms. Don t be one of these unfortunate few. Consumerize your website. When prospects seek an attorney, they want someone with obviously good credentials, but they also want to know what kind of person their attorney is. Pepper in some personal data about schools, hobbies, and outside interests. Incorporate video on your site. Develop an introductory video of the managing partner that showcases personality as well as expertise. Post the video in the web (and YouTube) and even consider a TV spot down the road. Get listed in and link to online directories. Identify all online directories available for posting attorney and firm profiles. This includes attorney specific portals and social networking sites. Link to these on your website and don t forget to add your firm s website to each online listing you post. Hire an expert. You practice law and let others grow your By Debra Regan business! Consider outsourcing your internet marketing campaign to qualified experts. First, ask for a consultation and determine a comfortable budget (earmark usually 2-5 percent of monthly budget as a good start point). Let the experts generate leads for your fledgling practice. Optimize your website. Search engine optimization experts can be tremendously helpful in improving online visibility and optimizing a firm s organic search rankings. Select a search marketing team that offers transparent and results-driven metrics. Engage in pay-per-click advertising. No firm is too small to reap tangible benefits from pay-per-click campaigns. Ensure your marketing experts select appropriate keywords, based on analysis, that are geographically and topically suited to your firm. This strategy helps favorably position small firms to directly compete with larger firms in your market. Understand and use appropriate metrics. Learn how success and ROI are measured in an online marketing campaign. While you don t need to be an expert, you do need to understand the difference between organic and paid search, as well as clicks, impressions, and conversions. Tracking leads is an appropriate metric used by only 20 percent of attorneys. Visit to get more tips on how to track leads. Be responsive! While your internet marketing team brings in qualified leads, put a system in place to respond to each one. Make a phone call, send an in response to an inquiry, or schedule a meeting. Keep these leads in a simple database so when you re ready to send the first newsletter from the firm, clients and prospect lists are easily accessible. Don t forget to reference the LexisNexis marketing checklist at to get the marketing wheels turning! Debra Regan is vice president of Law Firm Marketing Services at LexisNexis. Workers Compensation Section - News & 440 Report

5 Editor s Comments: Here I Go Again! By Michael J. Winer, Esq., Tampa Dear Friends and Colleagues: No, I don t mean the totally awesome late 80 s power ballad by Whitesnake with the lovely, but oh so dangerous, Tawny Kittaen gyrating on the hood of a Jaguar... With apologies to David Coverdale and his teased-out, blond rocker hair, I mean work comp. As in, here I go again down the path of a new but very familiar journey, which presents the same set of challenges we faced after the 10/1/03 legislative changes were instituted over six years ago. How far we ve come, only to arrive at the very same starting point yet again. The question of how the First DCA will interpret the 7/1/09 changes to the fee statute vis-a-vis the decision of the Florida Supreme Court in Emma Murray (and more significantly, the comments of the various justices during oral argument) looms large. Most claimant s attorneys seem to be plowing ahead (and walking along the lonely street of dreams- sorry, couldn t resist), undaunted by the new fee restrictions, in the hopes that one s time spent will be reasonably compensated when benefits are wrongfully denied. Once again, the critical issue becomes taking the right case up on appeal. Your Workers Compensation Section and the Executive Council encourage any and all members who are involved in a possible constitutional or other challenge to the fee provisions enacted on 7/1/09 to immediately contact the following Section and Executive Council Members: Brian Sutter Richard Chait (Chair) - and/or Richard Thompson (Chair -elect)- com and provide details of the proposed challenge. It is the section s goal to remain appraised of any such appeal, monitor activities and take appropriate action as is consistent with our by-laws and to serve the interests of our membership. I hope you will find this latest edition as useful and informative as any before it. I offer my sincere gratitude to Bill Rogner, Esq. for serving as my Guest-Editor of this edition of the News & 440 Report. If you enjoy this edition and find it useful, me your compliments and praise. Should you find otherwise, send all complaints to Bill! All kidding aside, Bill has assembled a host of thought- provoking, educational and useful articles to your daily practice and I salute his efforts as well as those of the authors who contributed their articles. I would also like to publicly thank former Editor of this publication and former Section President, Nancy Cavey, Esq. A little over five years ago, Nancy approached me and requested that I get involved. Prior to that, I was just a practicing attorney with no involvement in the work comp system, other than complaining about the things I didn t like to anyone who would listen or who cared (a very short list). Through getting involved with the Section and this publication, I was given the opportunity to not only further my education in this area but to also serve a greater good of playing a small role in improving this system which has become such a large part of my life. I have found tremendous fulfillment in this regard, personally and professionally. I encourage you all to get involved as well, whether it be through writing an article for this publication, serving on the executive council or volunteering to serve on or chair one of its various committees. You can make a difference, while at the same time, advancing your experience and knowledge in the area of workers comp. As always, I welcome your comments, thoughts, reactions and even gripes. Best Regards, Mike Winer, Esquire Law Office of Michael J. Winer, P.A. 110 North 11th Street, 2nd Floor Tampa, Florida phone: (813) telefax: (813) Workers Compensation Section - News & 440 Report

6 Lawyers Earn Board Certification in Workers Compensation The Florida Bar Board of Legal Specialization & Education in 2009 approved board certification for 157 lawyers in 18 specialty areas of legal practice, including the following lawyers who earned board certification in workers compensation: Jeffrey Edward Appel, Lakeland Andrew Richard Borah, Winter Park Certified attorneys are the only Florida lawyers allowed to identify or advertise themselves as specialists or experts. Board certification evaluates attorneys special knowledge, skills and proficiency in various areas of law and professionalism and ethics in practice. Applications for workers compensation board certification are available at and are due each year by Oct. 31. The Florida Bar s board certification program sets high standards for lawyers who aspire to further their professionalism credentials, said Florida Bar President Jesse H. Diner. Attorneys who earn Florida Bar board certification have demonstrated their expertise and commitment to excellence in the practice of law. Certification is the highest level of evaluation by The Florida Bar of the competency and experience of attorneys in areas of law approved for certification by the Supreme Court of Florida. Florida currently offers 22 specialty areas of practice for which board certification is available, the greatest number of state-approved certification areas in the nation. Two new areas adoption law and education law have been approved by The Florida Supreme Court and will be available to lawyers for application later this year. A lawyer who is a member in good standing of The Florida Bar and who meets the standards prescribed by the state s Supreme Court may become board certified in one or more certification fields. Only 4,300 of Florida s 87,000 lawyers are board certified. Minimum requirements for certification are listed below; each area of certification may contain higher or additional standards. A minimum of five years in law practice Substantial involvement in the field of law for which certification is sought A passing grade on the examination required of all applicants Satisfactory peer review assessment of competence in the specialty field as well as character, ethics and professionalism in the practice of law Satisfaction of the certification area s continuing legal education requirements Board certification is valid for five years. The attorney during that time must continue to practice law and attend Florida Bar-approved continuing legal education courses. Recertification requirements are similar to those for initial certification. Not all qualified lawyers are certified, but those who are board certified have taken the extra steps to have their competence and experience evaluated. For more information, please visit The Florida Bar Web site at or contact The Florida Bar s Legal Specialization & Education Department at 850/ Workers Compensation Section - News & 440 Report

7 GUEST EDITOR S COMMENTS My Luckiest Break, or How I Managed to Avoid the Practice of Real Law By William Rogner, Esq., Guest Editor It is with thanks and humility that I write to you as the guest editor of the News & 440 Report. I want to express my regards and thanks to my boss, Mike Winer, who asked me to serve as guest editor for this addition. Moreover, I would like to take this opportunity to express my heartfelt gratitude to all those who contributed to this edition of the News & 440 Report. I trust that all readers will find something worthy of their attention contained within this edition. In struggling to determine what I would write about as a guest editor, I began to reflect upon my career as an attorney practicing nearly exclusively in the workers compensation field. September marks my nineteenth year as a lawyer. It also marks my nineteenth year as a workers compensation practitioner. Frankly, I know how to do virtually nothing else. Luckily for me, the practice of workers compensation over these last twenty years has been extremely rewarding both professionally and personally. Like everyone, I began as a newly minted lawyer with some naive beliefs about the practice of law and the life of a lawyer. A top television show while I was in law school was L.A. Law and we all watched it religiously. Victor Sifuentes and Arnie Becker, clad in an endless supply of Armani suits, spent more time entertaining clients and chasing women than working. In addition, they always went from initial client meeting to opening arguments in about 30 minutes. The work and drudgery in the middle was omitted. That view of the life of a lawyer was not much changed by my clerkships in large corporate firms in Orlando and Atlanta. Those experiences focused more on lunch and happy hour than they did on actual work. Until I actually had a real job I would remain blissfully unaware of the actual requirements the profession imposes on young lawyers, particularly those with ambition. I am often asked by younger attorneys how it was that I became a workers compensation lawyer. Like many things in life, it was by mere fortuity. I accepted a position out of law school with a large and established corporate law firm where I would practice anti-trust and complex commercial litigation. The job paid $45,000 per year which, after seven years as a student at the University of Florida, seemed like a fortune. The year before, 1989, marked the end of a legal hiring boom and I had multiple offers to choose from when deciding where to work. Little did I know that the recession that began in mid-1990 would change my life. The day after law school graduation I flew to Europe for a month of backpacking with some friends, a Eurail pass, and a couple of newly minted credit cards. I was pulling out those cards quite often, particularly since I would be earning such a princely sum upon my return. As luck would have it, while my creditors would await my return, my plum job would not. While I was in Europe the law firm s largest client, a savings and loan, was seized by the Resolution Trust Corporation in connection with the late 1980 s wave of banking scandals (it seems that little changes). The firm would not survive the blow. I, of course, knew nothing. Everyone under 30 will find this impossible to believe, but we had no cell phones, no , and no internet. By the time I returned, completely oblivious to what had occurred in my absence, I was unemployed. I found out that I had no job the evening I returned home from Europe. My mother made me a drink. Trust me. That was a first. Then, she dropped a pile of Orlando Sentinel articles in my lap. I read, with rising fear, about the seizing of the bank, the initial firm layoffs, and then its ultimate collapse. Many others lost their jobs as well. Those people, however, had a several week head start on me in their efforts to secure other employment. I immediately contacted the other law firms who had expressed an interest in hiring me the previous year. Unfortunately for me, their interest had either turned elsewhere or evapocontinued, next page Workers Compensation Section - News & 440 Report

8 Luckiest Break, from page 7 rated due to the recession. I remained unemployed. While awaiting the bar results I finally got an interview with a well established full service firm in Orlando that had workers compensation defense as one of its practice areas. While I prayed for an offer in the commercial litigation section, when interviewing with the workers compensation lawyers I earnestly expressed that workers compensation had been my lifelong passion. After all, I was desperate. I landed an offer to work for their youngest partner, Rex Hurley, in the workers compensation department. I thought to myself, Well, I can kill some time doing this workman s comp stuff until I can find a real job. I was in for a surprise, however, and soon found that I actually liked the practice quite a bit. In fact, I enjoyed a number of things about being a workers compensation lawyer. For example, I thought the cases were interesting. Sure, they could run the gamut from incredibly interesting to horribly mundane. Yet, just as I found myself getting bored, I would get a case involving something very complex, something very interesting, or something just plain funny. I also liked the Judges. Back then, we had a lot more characters. Some were a bit odd. Some were downright mean. Most, however, were competent, courteous, and never, ever boring. Finally, I very much enjoyed my colleagues in the profession, both co-workers and opponents. Unlike my friends who practiced other types of litigation, I found the opposing lawyers to be almost uniformly courteous and quite professional. I soon found that my friends practicing real law had no idea what they were missing. The comp convention at the Peabody, for example. Wow. Just a year and a half after I began my practice, Rex walked into my office and asked me if I wanted to go start a law firm. Since I was single, had a $93, house, and drove a fully paid for two door Honda Accord with cloth seats, I hesitated for all of thirty seconds before deciding to jump ship and help start Hurley & Rogner, P.A. We started together with a secretary, a copier, and some phones. We had no file cabinets and essentially no furniture. And, contrary to Rex s assurances, I was to make very little money for a year or so. Within a week, however, we had something like two hundred cases and we were off to the races. Within a month of opening we were begging Scott Miller to come aboard. Thankfully, he did. When the law changed in 1994 I panicked. Surely, we would not survive it. Rex calmly pointed out to me that no one promised us we would get rich. Moreover, his many, many, many years of seniority over me gave him the perspective to understand that they had tried to kill us before and, in all probability, would try to do so again. Unfortunately, he was right. Yet, despite the law changes we kept getting cases and we kept adding lawyers: Michael Waranch; Derrick Cox; Greg White. For a number of years things were going well. We were growing our Orlando office. Moreover, in 1997 we were blessed enough to convince Paul Westcott to join us in order to start our second office. Ft. Pierce was certainly not our first choice for its location, but that s where Paul practiced. I have learned that people are far more important than location. Paul was the right choice and we ve been rewarded ever since. Our experience in bringing Paul in to start that second office has provided us with the guidance we ve needed as we have opened offices three, four, and five. When the law changed in 2003 I again panicked. Surely, we would not survive it. This time it seemed that everyone in the industry agreed with me, or at least the claimant lawyers did. I think about 75% of those polled claimed they were quitting because they simply could not make a living under the new law. When we started the firm I never imagined it getting beyond four or five attorneys practicing in a single location. When the law passed in 2003 my law firm had twenty lawyers. We now have more than thirty lawyers practicing in five offices. Somehow, we have managed to survive and even thrive despite the changes to the law. While we do have lawyers that do other things, we remain overwhelmingly a workers compensation firm. And despite the best efforts of certain people in the Legislature, we somehow manage to keep the lights on. I am also happy to report that the majority of the lawyers that I enjoyed practicing against prior to 2003 still practice. There are, of course, notable exceptions. The most obvious is Stuart Colling who left us not by choice, but by fate. We are all saddened by his passing, but enriched by his life and example. For the most part lawyers on both sides of the fence have simply made adjustments and continue to practice workers compensation law with varying success. No, the practice is not as growing and vibrant as it was when I started, but it is far from over. More importantly to me personally, many of the things I originally loved about practicing workers compensation remain to this day. I still find the cases challenging and interesting. Sure, there are plenty of clunkers. But, just as I start to get bored I ll get a catastrophic injury case, a difficult coverage issue or the like. We now have PEO litigation, major contributing cause issues, and yet another PTD standard. Gratefully, I no longer have to handle Special Disability Trust Fund cases. Who even remembers the 3 in 24 wage loss defense? Good riddance. Only in workers compensation does the legislature essentially throw out the whole statute every few years and we all get to start from scratch again. For the most part our Judges are excellent. In fact, the Judges today are probably a significantly more professional (if less colorful) group than their predecessors were two decades ago. We have an active, creative, and very approachable chief judge. By nearly any measure the system is more efficient and has more predictable time-lines and outcomes. There is no doubt that the Judges are held more account- Workers Compensation Section - News & 440 Report

9 able than they were in years past. We also have a huge number of excellent state and private mediators. At the beginning of my career it would never have crossed my mind to mediate. I cannot imagine the practice without it now. Technology has revolutionized the way we do our jobs. I was a lawyer for at least 3 years before I got my first cell phone (see Michael Douglas in the beach scene from Wall Street). It had a full 2 hours of talk time per charge and was the size of a Southern Reporter. Speaking of those, we had to do research in the downtown public library and we used things like FlaJur and Shepard s. My entire library now consists of the manual from the annual convention and a laptop. has been a revolution in efficiency, but one that prevents an escape from work, particularly with my Blackberry. Thanks to our chief judge we now have e-filing which has been an unbelievably positive change. Overall, technology has given us much more flexible work lives, with the ability to work any time and from any place. The lawyers in the workers compensation system continue to make the day to day practice of workers compensation enjoyable. The vast majority remain courteous and very professional. I routinely hear horror stories involving the behavior of the lawyers in other litigation areas. For the most part (but, unfortunately with some glaring exceptions) the litigation of workers compensation matters remains a cordial and fairly informal process. As a member of the Workers Compensation Executive Council I have developed relationships with practitioners all over the state, both claimant and defense, that have enriched my professional life. I owe a tremendous debt to the workers compensation system. Without it, I would never have met my wife of sixteen years who just happened to be a workers compensation adjuster. I was auditioned as her lawyer before being promoted to boyfriend and then husband. I have been practicing with the same core group of partners for fifteen years or more. With them I have developed professional and personal relationships without which my life would be far less rewarding. Finally, the workers compensation system has allowed me to build a business with over one hundred employees and we are able to provide those hundred-plus families with excellent wages, health insurance, and other benefits. Would I advise either of my two kids to become a workers compensation lawyer? I have not made up my mind on that one yet. Fortunately, my tenth grader and eighth grader don t yet need my advice in that regard. We will keep our focus on college at this point. Hopefully, they ll demonstrate the intelligence that they have shown throughout their lives and choose the University of Florida. I ll leave it to them to figure out what path they choose from there. As I enter my third decade as a workers compensation lawyer I do so with pride and the confidence that the coming years will be as rewarding and successful as the previous ones. Thank you for helping to provide me with a rich and interesting life. William H. Rogner was born in Charlotte, North Carolina on January 14, Mr. Rogner was a 1987 honors graduate of the Warrington School of Business Administration at the University of Florida. He went on to UF s Levin College of Law where he graduated, again with honors, in While at the University of Florida, Mr. Rogner was a member of the Lambda Chi Alpha social fraternity, Florida Blue Key, and the Justice Campbell Thornal National Moot Court Board. After graduation he practiced briefly with another firm before founding Hurley & Rogner, P.A. in Mr. Rogner became a Florida Bar Board Certified Workers Compensation lawyer in Over the years Mr. Rogner became increasingly involved in appellate issues and he ultimately became a Florida Bar Board Certified Appellate lawyer in Admitted to the Florida Bar, the Middle and Northern Federal District Courts, and the Eleventh Circuit Court of Appeal, he continues to represent employers, carriers, and servicing agents, both at the trial and appellate levels. Mr. Rogner is AV rated by Martindale-Hubbell. He is a member of the Florida Bar Workers Compensation Section Executive Council. Mr. Rogner resides with his wife and two children in Orlando. Coming up: Midyear Meeting of The Florida Bar January 20-23, 2010 Hilton Orlando Annual Florida Bar Convention June 23-26, 2010 Boca Raton Resort & Club Visit to learn more. Workers Compensation Section - News & 440 Report

10 Fair Districts in Florida Dear Friends: I write this during the height of summer as legislative activity, except for ever-present fundraising, has come to a virtual standstill. The most significant governing actions are rate hearings in front of the Public Service Commission and negotiations with the Seminole Tribe of Florida about a Gaming Compact. Once the latter is completed, the Governor will call a Special Session (most likely in October or November) so that the Compact can be subject to legislative scrutiny. Already various interests are clamoring to add additional items to the agenda, including insurance, off-shore drilling, election reform, and Sunrail. Tallahassee s focus is on the 2010 elections. It almost appears as if next year s legislative session is an afterthought as the U. S. Senate seat, the governor s office, every Cabinet position, half of the Florida Senate, and the whole Florida House will be on the ballot. The 2010 election will have far-reaching implications for our state, but perhaps the most significant is a proposed redistricting initiative that would change the way congressional and legislative districts are drawn. Sponsored by, the organizers have over 1,400,000 petitions to reform the way Florida crafts legislative and congressional districts by establishing constitutionally mandated standards. Every ten years, after the census, the boundaries of our congressional, state senate and state house districts are redrawn. This process is undertaken by the Legislature and is highly political, thus the party in power, whether Republican or Democrat, controls it. A key goal of either party is to protect its majority or members so they both employ voter registration data and past election results to predict how particular voters will perform. Then they choose which voters are most likely to vote for their party and place just enough of those voters in districts they are sure to win. Just like any other bill, the congressional and legislative redistricting plans are developed in legislative committees and then voted on by the full Senate and House. The change proposed by would prohibit drawing districts to favor a party or incumbent. Districts would have to be compact and take city and county boundaries into account. This proposal also presents the challenge of how to ensure that racial and language minority voters have an equal opportunity to participate in the political process. There is no organized opposition lined up yet, but political parties and lawmakers are likely to mount a campaign against it. Though prominent Republicans, including former Comptroller Bob Milligan and lawyers Thom Rumberger and Nathaniel Reed are among FairDistrict s co-chairmen, it is heavily funded by Democratic-leaning groups such as the Service Employees International Union. Changes to the redistricting process have the potential to become the most explosive issue on the 2010 ballot. Whoever controls redistricting can essentially control political power in Tallahassee for ten years, thus this is well worth watching. I appreciate representing you and, as always, trust you will not hesitate to contact me if you have any questions. Fausto Gomez 10 Workers Compensation Section - News & 440 Report

11 Lawyer Professionalism in the 21st Century By Dominic Locigno, Esq. Our once noble profession The practice of law was once described as noble profession. However, in recent years there has been a noticeable decrease in professional courtesy between adversarial attorneys. The manner in which attorneys treat one another is, in large part, deplorable. As a result, our once noble profession has become anything but. The concept of professionalism has been set aside and replaced with a distinct me-first attitude under the guise of zealous advocacy. This decline in professionalism is not distinct to the claimant s bar or to the defense bar. Rather, the decline in professionalism is shared among all. In this author s opinion, there are several reasons for this decline, most important of which is a complete breakdown in meaningful communication. This article will point out one theory as it relates to the cause for this communication breakdown and I will address a proposed method to avoid these problems. The lawyer in the 21st century Practicing law today is much different than it was 25, 15 and even 10 years ago. The rise of the internet, and the dominance of cellular telephones have made the practice of law a 24/7, 365 day per year vocation. These methods of instant communication have increased the pace of what was already a tremendously fast-paced field. While these tools undoubtedly increase productivity, they have, in large part, decreased the emphasis on interpersonal communication between adversaries. It is much easier to send a terse one line declining a settlement offer or to bombard your opponent s fax machine with last minute deposition notices than it is to pick up the telephone and attempt to accomplish the same objectives. This can be tremendously problematic. The decline in direct interpersonal communication can have disastrous impacts on the relationship between two adversarial attorneys. Short one-line s and text messages often convey an aura of aggression. In many instances, this is not the intended goal but is rather an unintended byproduct. Regardless of the intent, these types of situations can and will create an unnecessary rift between the parties. Once this rift is created, the relationship is doomed. Instead of being able to resolve issues and disputes through productive communication, the parties become stuck in a battle of words and curt s which do little to advance the goals or interests of any of the parties involved. Likewise, propounding last minute deposition notices is often tremendously prejudicial to all involved, including all witnesses and attorneys. These abuses of the communication methods available to us in today s legal practice should be avoided at all costs. Attorneys should strive to communicate with their opposing counsel. Not only is personal conference preferred, in some situations, it is even required. Take for example DOAH rule 60Q-6.115(2) which requires the parties, in most situations, to personally confer before a motion is filed. Despite the existence of this rule, often times personal conference prior to the filing of motion hearings simply does not occur. What happens then? Unnecessary motions are filed with the Court resulting in superfluous litigation and the crowding of an already congested court docket. Suggested Standards of Professional Courtesy So how can the problems referenced above be avoided? The emphasis on meaningful, personal communication must be restored. One method of achieving this goal is to adhere to a specific set of standards of conduct which highlight the need for effective communication between parties. The Palm Beach County Bar Association has drafted a series of standards of professional courtesy. At the heart of these standards is the importance of communication with one s opposing counsel. This author encourages all workers compensation practitioners to read these and implement a similar guideline of personal interaction in their everyday practice so that the problems highlighted in this article can be avoided. continued, next page Workers Compensation Section - News & 440 Report 11

12 Lawyer Professionalism, from page 11 The Palm Beach County Bar Association Standards of Professional Courtesy are broken down into Five main areas: (1) Scheduling; (2) Discovery; (3) conduct toward other attorneys, The Court and Participants; (4) Candor to the Court/Other Counsel; and (5) Efficient administration. I will summarize the salient points in the following paragraphs, but I encourage the reader to review them in their entirety at 1. Scheduling The parties are encouraged to work together to expedite scheduling. There is a general call for actual notice to be provided no less than five (5) business days for in-state depositions, ten (10) business days for out-of-state depositions and five (5) business days for hearings. Attorneys are also encouraged to cooperate with one another when rescheduling is necessary. 2. Discovery The parties are encouraged to avoid using discovery to harass, embarrass, or cause the adversary to incur unnecessary expenses. All discovery responses should be timely and complete. 3. Conduct toward other attorneys, the Court and Participants As it relates to this general area, the standards highlight the importance of a courteous and respectful interaction between the parties involved. 4. Candor to the Court/Other Counsel Attorneys should avoid knowing misrepresentations of any fact or legal authority at all costs. If a party unintentionally misstates the law or facts, it should immediately be disclosed and corrected. The standards also suggest that all written communications with the court be simultaneously provided to opposing counsel by substantially the same method of delivery by which they were provided to the court. The standards use as an example the hand delivery of a memorandum of law to the court by suggesting that a hand delivery to the court should also warrant a hand delivery or facsimile to the opposing attorney. 5. Efficient Administration The standards encourage attorneys to work toward efficient resolution of their disputes and to refrain from activities which would result in unnecessary expense or delay. Conclusion The common theme throughout the standards of professional courtesy is the importance of meaningful communication between the parties. In today s legal practice, we have more methods and forms to communicate with one another than at any time in history. Yet, despite all those methods available to us, communication, at least meaningful and fruitful communication is probably at an all time low. The impersonal nature of and text messages often leads us to say, act or do things in a manner which would not occur if we maintained direct communication either through telephone or face-to-face meetings. So what can be done? I do not suggest that we all discard our Blackberries or shut down our systems, rather, I would suggest that we use these modern methods of communication more effectively and responsibly. While many of these methods of communication are by their very nature impersonal, we must all strive to make this impersonal method of communication more personal. One method of doing this is to remember the standards of professional courtesy and to utilize them in all of our interactions with one another. We must remember our obligations to behave reasonably, to communicate honestly, to resolve our disputes efficiently and to refrain from using the technology available to us as methods to harass one another. Dominic C. Locigno is an associate of Hurley, Rogner, Miller, Cox, Waranch and Westcott, where he practices workers compensation law, commercial litigation, and general civil litigation. He was admitted to the bar in 2003 and soon after began working for HRM- CWW at their Fort Pierce office. In 2006, he opened the firm s Fort Lauderdale location. He earned his Bachelor of Arts and his Juris Doctorate from the University of Florida. JOIN THE FLORIDA BAR S LAWYER REFERRAL SERVICE! Every year, The Florida Bar Lawyer Referral Staff makes thousands of referrals to people seeking legal assistance. Lawyer Referral Service attorneys annually collect millions of dollars in fees from Lawyer Referral Service clients. The Florida Bar Lawyer Referral Service: Provides statewide advertising Provides a toll-free telephone number Matches attorneys with prospective clients Screens clients by geographical area and legal problem Allows the attorney to negotiate fees Provides a good source for new clients CONTACT: The Florida Bar Lawyer Referral Service, 651 E. Jefferson St., Tallahassee, FL , phone: 850/ or 800/ , ext Or download an application from The Florida Bar s web site at 12 Workers Compensation Section - News & 440 Report

13 Section, OJCC Survey Members on Judges and State Mediators A second survey regarding Judges and State Mediators was conducted in the Spring of The content of the survey was identical to the survey in 2008 with regard to the perceptions of the Judges and mediators. The 2009 survey added three questions for each division regarding staff. The new questions addressed such issues as perceptions of district staff responsiveness, helpfulness, promptness, politeness, and professionalism. The 2008 survey was ed to members of the Workers Compensation section. There are some members of the Section who do not provide addresses to The Florida Bar. The total survey distribution in 2009 was to 1,380 attorneys. In 2008, 473 attorneys responded to the survey, a response rate of approximately 34% in the inaugural year. Some criticized the 2008 survey because some frequent compensation practitioners have elected not to belong to the Section. Therefore, in 2009 the lists from the Section and the e-jcc electronic filing database were combined for the survey. Duplicates were removed from the combined list to prevent any attorney from receiving access to the 2009 survey twice. With this combined mailing list, the 2009 survey was ed to 2,546 attorneys. The 2009 response rate was two hundred ninety-eight attorneys, which equals approximately12%. Anecdotally, comments to survey organizers in 2008 suggested some reluctance to respond to the survey out of fear that their response would not remain anonymous. In 2009, additional effort was directed at that specific concern, and an accounting firm was hired to distribute the survey and compile the responses. Despite this additional layer of separation between the OJCC and the survey, the response rate decreased in 2009 both in terms of raw volumes (from 473 to 298) and in terms of the percentage of invitees (from 34% to 12%). Results from both surveys were positive overall. Most Judges and Mediators were rated overall between above average and excellent as regards most questions posed. The summary results of the survey are presented in this issue of the News. To arrive at these averages, each person voting poor was multiplied by 1, each below average by 2, each average by 3, each above average by 4 and each excellent by 5, and the total was divided by the total number of respondents for that question for that Judge or mediator. The not applicable responses were disregarded. The parenthesis next to the Judge s or Mediator s name is the average number of respondents that evaluated that Judge or Mediator. The current level of cooperation between the Office of the Judges of Compensation Claims and the Workers Compensation Section is unprecedented. This professional relationship is directly responsible for the development and delivery of this survey opportunity. The survey results evidence a widespread appreciation for the efforts of most Judges and Mediators in the OJCC system. There is no perfect method for measuring customer satisfaction, and it is suspected that some volume of survey respondents will participate in this process because of emotions or perceptions that are specific to a particular interaction with a particular Judge or Mediator. As such, the exceptionally high overall averages of our Judges and Mediators is only more gratifying. The OJCC bench today is the strongest and most professional in my memory. There are many practitioners in this system whose experience extends more than thirty years to the pre-wage loss era. In my conversations with these practitioners, I am often assured that they too share this perception of today s OJCC bench being the most professional. This overall perception is encouraging. It is gratifying to see the current cooperation between bench and bar, and the open dialogue between us. The Survey committee intends to deploy a third annual survey in It is hoped that further refinements in the process will result in greater participation from the Bar. In 2010, the survey will deploy on a specific date, May 14, Every effort will be made to simplify the response process, so that each respondent will not have to review the questions regarding every JCC and Mediator, and can instead proceed more directly to the specific Judges and Mediators they wish to address. If you have further suggestions or ideas for the OJCC/Workers Compensation Section survey, please direct them to me at Survey results on following pages. Workers Compensation Section - News & 440 Report 13

14 1) Judge s knowledge of the law. 2) Judge s ability to comprehend complex legal issues. 3) Judge s knowledge of rules of procedure and evidence. Survey Results 4) Written decisions are clear, concise, complete 5) Judge s courteousness to counsel, witnesses and parties. 6) Judge s patience and willingness to listen. 7) Judge s promptness in issuing orders. 8) Is prepared for hearing. 9) Judge s impartiality in regards to attorneys. 10) Judge s impartiality to either claimants or E/Cs in rulings. Portuallo (58) Lewis (74) Pecko (69) Hogan (61) Spangler (58) Sturgis (49) Thurman (58) Harris (59) Rosen (46) Hofstad (76) Terlizzese (65) Catiello (72) Harnage (71) Hill (64) Kuker (73) Medina-Shore (68) Condry (77) Sculco (72) Farrell (35) Roesch (38) Winn (31) McAliley (51) Beck (57) Hafner (56) Remsnyder (62) Lazzara (36) Jenkins (75) Lorenzen (67) Murphy (63) Basquill (55) D'Ambrosio (56) Punancy (56) Langham (25) ) Judge s punctuality for scheduled hearings. PROVE YOU RE AN EXPERT BECOME BOARD CERTIFIED 14 Workers Compensation Section - News & 440 Report

15 Survey Results, cont d. 1) Mediator's knowledge of the law. 2) Mediator's knowledge of workers' compensatio n procedure. 3) Mediator's ability and willingness to explain med. process to parties. 4) Mediator's courteousnes s to counsel and parties. 5) Mediator's patience and willingness to listen. 6) Mediator's effectiveness in communicatin g each side's point of view. 7) Mediator's impartiality in regards to attorneys. 8) Mediator's impartiality in regards to either claimant's or employer/carriers. 9) Ability to prepare clear, concise agreements. 10) Mediator's adherence to the confidentiality requirements for mediation. Bennett (56) Smith (72) Koepell (74) Brea (60) Hart (46) Bredemyer (46) Suskin (77) Day (58) Gordon (52) Williams (71) Murphy, G (61) Almeyda (60) Witlin (69) Hodges (64) Johnson (67) Lapin (62) Hires (68) Marshall (61) Kim (54) Oramas (34) Hardy (37) Harwood (48) Claussen (53) Arthur (54) Young (56) Bisbee (28) Leon (50) Murphy, P (64) Ronnenberg (54) Hill (53) DiGennaro (52) Langer (56) ) Mediator's punctuality for scheduled mediations. Board certified lawyers are legal experts dedicated to professional excellence. Are you ready for the challenge? Workers Compensation Section - News & 440 Report 15

16 Admissibility of Unauthorized Medical Opinions By Jonathon Cooley, Esq. The reaction to the case of Parodi v. Florida Contracting Co., Inc., 2009 WL (Fla. 1 st DCA 2009) has been quick and animated. A review of Parodi, the relevant statutes and prior case law demonstrates that Parodi is not a drastic deviation from prior law. It merely restates and affirms what has been an overlooked and perhaps underutilized avenue for admitting medical opinions. Unauthorized physicians may not provide opinion testimony. This has not changed. Parodi restates and explains how, in certain limited circumstances, a physician may be retroactively authorized and his testimony therefore be admissible. In Parodi, the Court held that in those cases where the Employer/Carrier wrongfully denies medical care and the claimant is required to utilize the selfhelp provisions of section (2)(c ), Florida Statutes, the JCC is not obliged to exclude the opinions of the doctors from whom Claimant was forced to obtain medical treatment. In order to have the care retroactively authorized, the Claimant bears the burden of proving the following: 1. A specific request for care. 2. A reasonable time for the employer or carrier to respond 3. The care in question is compensable, reasonable and medically necessary. The Parodi case does not create a new exception to s (5)(e), Florida Statutes. In fact, in reaching its decision, the Court references its prior opinion in Florida Distillers v. Rudd, 751 So.2d 754 (Fla. 1 st DCA 2000). The starting point for the admissibility of medical opinions remains s (5)(e), Florida Statutes, which provides: No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or department, an independent medical examiner, or an unauthorized treating provider is admissible in proceedings before the judge of compensation claims. This statute has been in affect, virtually unchanged, since It should be noted that the limitation on the admissibility of medical opinions is substantive and does not apply retroactively. Cowins v. Landmark Learning Center, 885 So.2d 421 (Fla. 1 st DCA 2004). Southern Bakeries v. Cooper, 659 So.2d 339 (Fla. 1 st DCA 1995). As a general rule, the term authorized treating provider means authorized by the Employer/Carrier. Rucker v. City of Ocala, 684 So.2d 836, (Fla. 1 st DCA 1996). One of the earliest cases dealing with the substance of s (5)(e) is Union Camp Corporation v. Hurst, 696 So.2d 873 (Fla. 1 st DCA 1997). In Hurst, the Court reversed the JCC for relying on inadmissible medical opinions. The JCC allowed the testimony of two physicians not authorized by the employer/carrier. In Hurst, the carrier had provided authorized medical care for the Claimant. However, they subsequently obtained an IME that found no evidence of injury to the Claimant and opined the Claimant had reached maximum medical improvement without impairment. The Claimant sought unauthorized psychiatric and neurologic care. The Court noted the Claimant did so without having requested or received authorization from the employer/carrier. Hurst at 875. By noting that the Claimant had not even requested authorization, the Court began laying the groundwork to provide for an alternative to Employer/Carrier authorization. The Court found that the Claimant had an affirmative obligation to request an IME with the physician of his choice, at the expense of the employer/carrier under section (5)(a) Florida Statutes (Supp. 1994) Hurst at 875. Similarly, in Wal Mart Store No v. Kirksey, 728 So.2d 268, 269 (Fla. 1 st DCA 1999), the Court again excluded the testimony of an unauthorized 16 Workers Compensation Section - News & 440 Report

17 physician, noting the claimant had an affirmative duty to seek an Independent Medical Examination. The carrier had authorized medical treatment prior to asserting a major contributing cause defense. In Lakeland Regional Medical Center v. Murphy, 695 So.2d 895 (Fla. 1 st DCA 1997), the Court again addressed the applicability of s (5)(e). In Murphy, the authorized provider recommended the Claimant be seen by a psychiatrist. Two days after receiving the report, the carrier wrote to the Claimant s attorney offering two physicians. The Claimant s attorney scheduled an appointment with a different physician. Additionally, the claimant saw a neurologist on her own. The authorized physician subsequently recommended a second opinion with a neurologist. Upon receipt of the recommendation for a second opinion with a neurologist, the carrier offered two selections. The claimant continued treating with the unauthorized neurologist, as well as an additional neurologist. In reversing the JCC, the Court held the JCC erroneously determined that the physicians were authorized by operation of law because an appointment was never scheduled or untimely scheduled. In Murphy, the carrier timely responded to the Claimant s requests for treatment. The Court also held the JCC erroneously concluded that the Claimant had the authority to authorize a health care provider pursuant to s (5)(e). The Court again defined authorized treating provider as a treating provider authorized by the E/C. Murphy at 897. While s (2)(c) had not yet been addressed in terms of retroactive authorization of physicians, both the Hurst case and the Murphy claim note that the carrier had timely authorized care. Neither case involves a situation where a claimant requested compensable, reasonable and medically necessary care that was denied by the carrier. Florida Distillers v. Rudd, 751 So.2d 754 (Fla. 1 st DCA 2000) explained the avenue by which a physicians care could be retroactively authorized by the Judge of Compensation Claims. Rudd additionally explained that in those cases, the Judge could rely on the opinions of the physician that provided the care. In Rudd, the Claimant requested authorization with a neurologist. The Carrier failed to provide same. The Court found that, as the Carrier failed to authorize the care, pursuant to s (2)(c), the Claimant was entitled to seek the care on his own and recover the costs of same. Without specifically addressing s (5)(e), the Court also instructed that the Judge was not obligated to reject the opinions of that physician. Rudd at 757. Florida Statutes s (2)(c ) provides, If the employer fails to provide initial treatment or care required by this section after request by the injured employee, the employee may obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter. There must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care. However, the employee is not entitled to recover any amount personally expended for the initial treatment or care unless he or she has requested the employer to furnish that initial treatment o service and the employer has failed, refused, or neglected to do so within a reasonable time or unless the nature of the injury requires such initial treatment, nursing, and services and the employer, or his superintendent or foreman, having knowledge of the injury has neglected to provide the initial treatment or care. (emphasis added.) The Rudd case did not appear to involve initial treatment or care. The Rudd case shows there was a delay by the carrier in authorizing treatment, but a physician was provided. When extending s (2)(c) to allow for what is essentially retroactive authorization of care, the Court in Rudd seemed to allow this for any request of treatment or care, not just initial treatment or care. The Court provided further clarification to the analysis in Seminole County School Board v. Tweedie, 922 So.2d 1011, 1012 (Fla. 1 st DCA 2006). In Tweedie, the Court reversed the JCC s reliance on the opinions of an unauthorized chiropractor. Distinguishing Tweedie from Rudd, the Court noted that Tweedie had requested orthopedic care, but had not requested chiropractic care from the carrier. Having failed to request chiropractic care, the Claimant had not followed the procedures of s (2)(c) and the care was not deemed authorized. Therefore, the testimony was not admissible. Reversing the JCC s denial of temporary indemnity benefits in Boggs v. USA Water Ski, Inc., 2009 WL (Fla. 1 st DCA 2009), the Court noted that that the JCC had excluded the testimony of an unauthorized physician, despite the JCC having found the doctor s treatment compensable, reasonable, medically necessary and improperly denied. The Court held, Under these circumstances, the JCC is not obliged to exclude the records and opinions of an unauthorized doctor. Against this backdrop, the Court reached its decision in Parodi. When viewed in context with the prior case law, s (2)(c ) and s (5)(e), Parodi essentially summarizes and organizes the elements spelled out in prior law and statute. The Court noted, We note that no fewer than nine legislative sessions have commended and recessed since our decision in Rudd. Although the Legislature has made substantial changes to the Florida Workers Compensation Law, it has not altered the statute in any way that would lead this court to conclude that our holding in Rudd(relative to the admissibility of the opinions of doctors obtained through the self-help provision of the statute) is not a correct interpretation of the statutory scheme. continued, next page Workers Compensation Section - News & 440 Report 17

18 Medical Opinions, from page 17 The Court goes on to explain that the employer may lose its right to select and/or authorize physicians if the employer abandons its obligation to provide appropriate care. Under the self-help provision of section (2)(c), a provision of the statute that theoretically, the employee should never need to use the JCC can award past medical treatment at the expense of the employer only where care has been wrongfully denied and the employer or carrier has been afforded a reasonable opportunity to provide such care... To the narrow extent this section allows a JCC to order payment to a physician, it also empowers the JCC to authorize this past care provided. It is this authorization that makes the opinions of the physician admissible. It remains the burden of the employee, to establish that he made a specific request for the care, allowed the employer or carrier a reasonable time to respond and obtained care that was compensable, reasonable, and medically necessary. Additionally, if the carrier prevails on defenses such as fraud or major contributing cause, even if the care is medically necessary, the care would not be compensable or awardable One question that has not been specifically addressed is whether the there must be some other medical testimony, beyond that of the physician for whom retroactive authorization is sought, to establish that the care was compensable, reasonable and medically necessary. Logically, it would appear as though there must be some evidence to support the award of the past care to allow the Judge to consider the testimony and opinion of the retroactively authorized physician. The opinion of the physician should remain inadmissible, and therefore not considered by the Judge, until the Claimant has met his burden of demonstrating the elements necessary to support retroactive authorization. It does not make sense that the Judge can make a determination the care is compensable and reasonable and medically necessary based upon testimony that is not yet admissible. For the Claimant s bar, s (2)(c), Florida Statutes and the cases that flow from it, present an opportunity for the Claimant, in a wrongfully denied claim, to pursue medical treatment with the potential for reimbursement. This can potentially prevent Claimant s from having to wait extended periods of time to get into trial to undertake care. A side benefit is that the Claimant will potentially be able to introduce the testimony of the provider to buttress their claim. The Claimant s attorney must utilize caution in not having the Claimant incur significant financial expenses for care that is not reasonable or medically necessary or in those cases where the chances of prevailing are not substantial. Furthermore, the Claimant can not use this as an avenue for doctor shopping in those cases where the Carrier has provided appropriate care. The Claimant s attorney will likewise want to avoid using the temptation to use this as a substitute for an IME as this could result in an absence of evidence to support his claim. The Carriers and defense bar will need to be aware of and ensure they timely respond to requests for medical care. The failure to appropriately provide care will restrict the Carrier s ability to maintain control over the medical care of the Claimant. The Carrier and their attorney should not panic. These avenues have been available to the Claimant for many years, but it is an approach rarely utilized. Jonathan L. Cooley is an associate of Hurley, Rogner, Miller, Cox, Waranch and Westcott, where he practices workers compensation law. He began working for HRMCWW at their Fort Pierce office in In 2008, he opened the firm s Fort Myers location. He was admitted to the bar in 2002 after earning a bachelor of science in Communications from Liberty University and juris doctorate from Nova Southeastern University. NOTICE FROM THE OFFICE OF THE JUDGES OF COMPENSATION CLAIMS Effective October 1, 2009, unless filed electronically, all Petitions for Benefits, Responses to Petitions for Benefits and Requests for Assignment of Case Numbers must be filed with the Office of the Judges of Compensation Claims at: Post Office Box 8000, Tallahassee, Florida Walter J. Havers, Esquire Senior Attorney State of Florida Division of Administrative Hearings Office of the Judges of Compensation Claims 18 Workers Compensation Section - News & 440 Report

19 Rotator Cuff Injuries By Dr. Sean McFadden, D.O. Shoulder related issues are common in the workers compensation arena. When evaluating shoulder cases it is beneficial to have a solid understanding of shoulder anatomy and some common treatment options. The incidence of shoulder pain is very common in the general population. The lifetime prevalence of shoulder pain is 70%. Shoulder pain is second to back pain in workers compensation claims. Shoulder problems account for 4% of all emergency room visits each year, and about 1.5 million visits to the orthopedic surgeon s office. One of the most common causes for shoulder pain is rotator cuff injuries. A good understanding of shoulder anatomy, conservative and surgical treatment options will help in guiding an attorney through depositions with orthopedic surgeons. Anatomy The rotator cuff is made up of 4 tendons, and they cover the top of the humerus. The four tendons are; Supraspinatus, infraspinatus, teres minor, subscapularis. The Supraspinatus tendon inserts on the top of the humerus and helps raise the arm away from the body. The infraspinatus and teres minor tendons insert behind the Supraspinatus tendon on the back of the humeral head and externally rotate the arm. The subscapularis inserts on the front of the humerus and internally rotates the arm. The most common tendon to tear is the supraspinatus. Causes of tears The most common cause of rotator cuff tears is the result of overuse of the muscles and tendons over a prolonged period of time. People who are at risk for overuse are those who engage in repetitive overhead motions. These include painters, welder s dry wall laborers, and framers. Types of Tears: Acute Acute tears will occur when there is a sudden force applied to the shoulder. This can occur during a fall on an outstretched hand, or if a worker is holding up a heavier object then they can tolerate. Common symptoms include; a tearing sensation, sudden pain, sudden weakness (the inability to lift the shoulder). Chronic Chronic tears usually involve the dominant side. The onset of symptoms is gradual, progressive weakness will also be noted. The average age of the person is 40. Most patients will complain of night pain and the inability to sleep on the affected side. Common reasons for tendon tears are tendon degeneration, and as a result of impingement. Tendon degeneration occurs over time. As we age there is a decrease in blood supply to the lateral aspect of the supraspinatus tendon. If a tear occurs in this area, the tendon will not heal and over time it will progress to become a full thickness tear. It is because of this area of decreased blood supply that many partial thickness tears will progress to become full thickness tears. Impingement syndrome occurs as a result of the rotator cuff rubbing against the acromion bone. The acromion is top part of the shoulder blade. There are three shapes of acromion, flat (type I) curved (type II) continued, next page Workers Compensation Section - News & 440 Report 19

20 Rotator Cuff injuries, from page 19 and hooked (type III). The majority of the population has a type II acromion. A type III acromion will cause a rotator cuff tear in 80% of the patient population. Diagnosis The diagnosis of rotator cuff tears is based on the patient s history, and physical exam. A set of x. rays are performed to evaluate the status of the shoulder i.e. looking for the presence of arthritis. The other benefit of an x. ray, it will provide information about the acromion and the presence of any bone spurs. MRI s are the best method to evaluate the integrity of the tendon. The best type of an MRI to order is a MRI arthrogram. The Arthrogram procedure will inject dye into the shoulder with CT guidance. After this is completed an MRI is then performed. The use of MRI arthrogram will significantly improve the ability to accurately diagnose the presence of a rotator cuff tear. Treatment * Conservative treatment. Non-surgical treatment can be a valuable tool to treat partial tears of the rotator cuff. Common treatment modalities include; rest, avoidance of activity, the use of non-steroidal anti-inflammatory medications (Motrin, Aleve, Celebrex) and therapy. Surgical treatment Surgical treatment is often used when the patient has an obvious tear on physical exam, and MRI findings consistent with a tear of the rotator cuff. Surgery can also be used when the patient has failed non-surgical treatment for partial thickness tears. Another indication for surgery is when a patient has failed conservative treatment and has persistent weakness, reproducible on physical exam. Types of Rotator cuff repair Arthroscopic Repair. This type of surgery consists of the surgeon making several small incisions on the shoulder. The arthroscopy is inserted into the back of the shoulder joint. The shoulder joint is then filled with water, allowing visualization of the tendon for repair. The benefit of arthroscopic surgery is the small incisions, which cause much less pain. Arthroscopic surgery is less invasive, and the patient can start therapy sooner then if they had undergone an open procedure. Historically, open repair was the standard of care, but currently arthroscopic results are equal to open repair. Mini Open repair This type of surgery starts out arthroscopically, but the tendon is repaired through a small incision. Open repair. Traditional repair of the rotator cuff required a large 5-6 cm incision, splitting of the deltoid, then repair of the rotator cuff. In general patients take longer to heal from this surgery, and often have more pain. In addition, therapy can t be started as quickly due to having to wait for the deltoid to heal. Rehabilitation After surgery the shoulder will be immobilized in a sling. The period of time of immobilization will depend on the size of the tendon tear. Most surgeons will immobilize the shoulder for 2-4 weeks. Therapy is usually started 1-2 weeks after surgery, for arthroscopic patients. Therapy will initially focus on motion exercises for the first month. Strengthening exercises will start once the patient has regained most of their motion. When working with a client who has sustained a work related injury to the shoulder it is imperative to have an understanding of basic shoulder anatomy and function. By understanding the mechanism of injury you can determine whether your client has an acute or chronic injury. With added insight into the management and treatment of shoulder problems, you will be better versed on how to prepare for future depositions. Dr. Sean McFadden is a graduate of Michigan State University College of Medicine. He is board certified in Orthopedic Surgery and currently serves as the Chief of Surgery at Florida Hospital East in Orlando. He is a published author in medical textbooks, and maintains a yearly lecture schedule for the community and the students of the Florida Hospital Resident Program. As a clinical instructor for Florida Hospital he provides instruction and mentoring for future physicians as they rotate through the office of Atlas Orthopedics. A competitive tri-athlete, Dr. McFadden enjoys working with the sports medicine population in the Orlando Community. He believes in the power of exercise for all ages. He sets this example through regular training and competition. Dr. McFadden is passionate about his surgical practice and all the people that he serves in the Orlando community. He enjoys the opportunity to work with patients, and the legal community. To learn more about his practice you may visit his website at net. From there you are able to view more about the surgical procedures that Dr. McFadden provides by selecting the link Learn More About Our Surgical Procedures located at the bottom of the home page. This web based site is one of his main teaching outlines for patients and the legal community. 20 Workers Compensation Section - News & 440 Report

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