Court: Employee has to pay, but law seems shaky

October 15, 2012 by Jim Burger

Posted in: In this week's e-newsletter, Latest News & Views, Workers' comp

The Florida appeals court that decided this workers’ comp case wasn’t crazy about the decision it was forced to make. So it took the unusual step of urging the state Legislature to reconsider the law in question.

At issue: Should a worker who initiates a good-faith comp claim, but is ultimately denied, have to pay his or her employer’s legal fees.

There was no question that Gina Frederick, who worked for the Monroe County School District, was injured on the job. The only question was whether she was permanently and totally disabled.

Her doctor said she was. So she filed for benefits.

Tiebreaker needed

When another doctor said she wasn’t, an independent medical examiner was brought in to cast the tiebreaking vote.

She wasn’t, said the IME, so the employee reluctantly (and somewhat belatedly, the court noted) withdrew her claim.

But there was another issue to consider: The school district wanted her to pay its legal fees, which came to a little over $16,000. Another hearing was held, and the employee was ordered to pay roughly three quarters of that.

She appealed, arguing that since her claim had been made in good faith and backed by her authorized treating physician, she shouldn’t have to pay anything. Forcing her to do so, she said, would have a chilling effect on future employees in similar situations, effectively imposing an unconstitutional restriction on their right of access to the courts.

Besides, she said, she was out of work. How was she supposed to come up with the money?

The court sympathized but said its hands were tied. Based on the law, it had to affirm the lower court’s decision.

But in an unusual addendum, the court “respectfully recommend(ed) that the Legislature consider” whether employees in similar situations should be subject to the imposition of costs. And it noted that the current law limits fees for workers’ lawyers.

What do you think? Should employees who lose or withdraw after filing good-faith comp claims have to pay employers’ costs? Feel free to comment below.

Cite: Frederick v. Monroe County School Board

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Tags: Frederick v. Monroe County School Board

VS

I’m in South Texas right now. I also have experience on the West Coast. I have never had any trouble finding sympathetic physicians. That might be because Texas has some of the strictest Tort laws in the country and people out here are more skeptical of workers comp claims in general. The physicians I use tend to be more conservative in their treatment plans. I try to get out every so often and sit down with a physician and get to know them. If I were to call a doctor I didn’t have this relationship with then I wouldn’t get that kind of assistance.
DAVID

OMG, VS its too easy to find 2 physicians to counter the employee’s doc? Must be a different legal environment where you are, here they are all too afraid of litigation to go on record saying nothing is wrong with an employee who reports pain when they cannot find any cause, let alone take the stand and go against another physician who says that something is wrong. Four years this guy has been pulling comp payments, but still have not seen a diagnosis other than “non-specific pain”
VS

It’s really not that cut and dried to me. I can understand what Bob is saying to a degree. I have seen too many instances where you just absolutely know that you have proven your case and the judge (or mediator) ends up using great leaps of logic to find against you. Keep in mind that I’ve always worked in management and am talking from that perspective. The difference is that if I press an issue and lose then it’s not my money. The company will pay the legal bills.
This may come off as completely cynical, but through my experiences I can tell you how easy it is to find 2 doctors to counter the employee’s physician. Too easy. Pain from injuries is very subjective and there are a lot of jaded and cynical doctors working out there.
And I apologize if I offended any medical professionals also. Lol!
Guest

Finally a court decision and explanation that is correct.

The court did not rule based on how the law “should be”. We see that far too frequently these days. They ruled on what the law says explicitly.

If more courts made recommendations to legislators instead of attempting to rewrite laws from the bench, we would all be better off. This would also dramatically cut down on appeals and cases being overturned.

Now if citizens feel she wasn’t given a fair shake, they can contact their legislator and change the law.

Really it is a win-win for everyone except the trial lawyers.
Jason B

Well said DMac. You articulated my thoughts better than I! LOL!
DMac

Of course not Bob – however, but with a well written “Loser Pay’s” policy, I would guess that he may not have to be the position of having to pay, as up front he would have been able to assess the risk of pushing the case, knowing that if he lost – he pays…
Jason B

@ Bob – I can’t say for sure without being in those shoes but I can tell you I would have made darn sure to secure a second opinion. If I was feeling litigious, a third or fourth before deciding to file suit.
Bob in Nebraska

I wonder if Jason’s opinion would be the same if he was the one who suffered the “injustice” of losing a legitimate case.
DMac

Agree with every word that Jason has written.
Jason B

Just a phrase I have heard repeated many times when the actual number/ratio is unknown… or the poster is just too lazy to research real data (me). Point was that I think a majority of cases have merit. 60/40, 70/30, 80/20 or 90/10. I prefer to use 80/20, about 80% of the time!
VS

Just curious Jason, Where did you get the 80/20 frivolous to real ratio?
Jason B

Not in specific regard to this case but the court system in general, Loser pays is a great way to cut down on all of the frivilous lawsuits that are filed in this country, many without merit.

Of course there will always be the injustice of someone who truly deserves to be the winner although loses their case due to a technicality or some other reason. (80/20)

What I learned from this case, always get a second opinion when dealing with Doctors!