HCBA Lawyer Magazine Vol. 29, No. 1 | Page 64

dAtes to note, neWs to Consider
Workers’ compensation section
Chair: Anthony Cortese – Attorney at Law
plan to attend our
section luncheons
this year:
T
he Hillsborough
County Bar
Association Workers’
Compensation Section
will be more active than normal
this year, with two Judges of
Compensation Claims retiring,
appellate decisions continuing to
reshape the law, attorney’s fees
an ongoing issue, and a new U.S.
Supreme Court decision that affects
federal workers’ compensation cases.
We will have section lunches
this year on October 10, 2018;
February 25, 2019; and May 16,
2019. One will be the yearly session
with Judges of Compensation
Claims in Hillsborough and
Pinellas, one will be on the effect
of opioid legislation on workers’
compensation cases both from a
medical prospective and from a
legal prospective, and one will
be a caselaw update.
We are also planning a morning
coffee session to be determined in
September to discuss the possible
effects Lucia v. SEC, 138 S. Ct.
2044 (2018), may have on federal
workers’ compensation cases. In
Lucia, which was an administrative
proceeding by the SEC, the United
States Supreme Court held that
hiring of an administrative law
judge without a formal executive
appointment was unconstitutional.
Therefore the decision of that
administrative law judge had to be
vacated. As a result, a new hearing
62
october 10, 2018;
february 25, 2019;
and
May 16, 2019.
© Can Stock Photo / zorandim
of the case had to go forward with
a properly appointed official, who
is not the judge who heard the
case before, even if he had been
properly appointed in the interim.
The SEC, like the Office of
Workers Compensation Programs
for the federal government, assigns
cases for hearings to administrative
law judges (ALJs). The federal
government had previously
contended that certain ALJs were
simply employees who did not
have to be appointed in accordance
with the Appointment Clause of
the Constitution. The Supreme
Court disagreed with regard to
the SEC, with implications for
all ALJs and particularly with
regard to the Office of Workers
Compensation ALJs. Stay tuned
to your email for the date of this
September morning session.
In other news, the First District
Court of Appeals of Florida
recently released several important
decisions, including Myers v. Pasco
County School Board, 246 So. 3d
1278 (Fla 1st DCA 2018) and
Brinson v. Hospital Housekeeping
Services, 2018 WL 307 9426
(June 22, 2018).
In Myers, the claimant, who
had suffered a back injury, had
been treating with an orthopedic
surgeon and requested a one-time
change. Myers’ employer/carrier
authorized a neurosurgeon, a
physician in a similar specialty,
because orthopedic surgeons and
neurosurgeons both treat back
injuries. But, the language of the
statute is that the one-time change
be made with a physician in the
“same specialty.” The First District
held that the employer/carrier
failed in its obligation to meet
the statutory requirements by
authorizing a neurosurgeon
instead of an orthopedic surgeon.
In Brinson, the First District
affirmed a denial of benefits to
an injured worker who failed two
drug tests. There was no specific
reason cited to ask the employee
to undergo a drug test other than
the injury, and the drug tests only
showed inactive metabolites of
marijuana, which does not prove
impairment because impairment
only lasts for one to a few hours
but detectable amounts remain
for days and even weeks. More
to come in case law update.
We hope to see you at our
events this year!
Author: Anthony V. Cortese –
Attorney at Law
SEPT - OCT 2018
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HCBA LAWYER