I receive periodical complaints from carriers. They note their receipt
of “numerous Petitions” from claimant’s attorneys with their company erroneously listed as
the carrier or third party administrator (TPA).
I receive periodic requests from claimant’s attorneys asking that
a particular carrier or TPA be added to our list in e-JCC. Several times
recently, the company someone has sought to have added has been an insurance
agent, not a carrier. As I begin my investigative process for such a request, I will check the
“coverage database” maintained by the Division of Workers’ Compensation. I
often find that the employer’s carrier is listed, and it is not the company
that we are being asked to add.
One recent example involved an attorney’s staff insisting that a
particular company was the carrier. After multiple phone calls and emails, I
was finally able to convince them that a different company was the actual carrier.
To convince the claimant’s counsel, though, I ended up having to provide the
correct carrier name, their claim number, the phone number of the adjuster and
defense counsel. All of which I obtained by looking up the employer on the coverage
database and calling the carrier listed there. Before you say it, I concede at the outset that I sometimes enjoy some advantage in getting through red tape to speak to the appropriate person.
I received a recent carrier request for help “getting off of a claim.” The
carrier had received multiple petitions from a particular claimant’s attorney.
They reviewed their data and concluded that they did not represent/insure the
employer, and had never done so. They repeatedly telephoned the claimant’s attorney,
without the courtesy of a returned call. This has serious professionalism
implications which I trust that I need not discuss further. The carrier wants to be
removed from this case. They write to me in frustration asking how to be
removed from the case.
First, I cannot give legal advice. I suspect that each day there
are defendants in lawsuits across this country who feel they have been inappropriately included. I
find the telephone call efforts described above are appropriate. It was a good way to start. If I were a
defendant in a case, which I thought was error, and telephone calls went unanswered, I would then follow with email
requesting dismissal of the claims against me. I would reiterate in the emails
that I had left phone messages without the courtesy of a reply. If the emails were
unsuccessful, I would likely next send a letter by U.S. Mail, with copies of
the email and again reiterating the efforts expended in the effort.
I tell people/carriers who contact me with these issues that I cannot
unilaterally change or remove a carrier or TPA from a case based upon anyone's
word. I appreciate that this may seem like the most expeditious method for
correcting an error. However, it would not afford the claimant due process if I
received such complaints and then just took the Carrier or TPA at their word and removed them
from the case. With that said, I respect that there are carriers that should be
removed from a particular case. In our system, however, the merits of an
allegation often come down to finding facts, and that is the penultimate role
of the assigned Judge.
I understand that injured workers' have to select the carrier that they file against. This is sometimes based on imperfect information. I understand that all human beings make errors. I understand that whether a particular employer or carrier is appropriately included in a given case may often come down to factual conclusions.
So, when erroneously added to a case, the carrier of third party
administrator should communicate the error. Claimant’s counsel should first use
the coverage database to determine the identity of the appropriate party; when
contacted by a carrier who disclaims responsibility, consulting the coverage
database is an appropriate follow-up.
Unfortunately, some situations will not be resolved by this contact.
Unfortunately, there are those on both sides of the table who will not return
calls or respond to requests. As a side note, there are likely petitions that
could be prevented if the claimant’s attorney could get a initial, pre-petition call, returned by the
adjuster in some instances. I acknowledge that life is busy, and returning
calls takes time. However, the evidence supports that people are more likely to
resolve their differences when they speak to each other.
If the contacts described above are not successful, then the procedural tool for dismissal from a case would be a motion. Rule 60Q6.115(1) (“any request for an order or for other relief shall be by motion.”). That is the vehicle that will focus the attention of the assigned judge upon your dispute. Admittedly, this may cause expense. There is a potential for a carrier to recover attorneys fees under Fla. Stat. §440.32(2) or Rule 60Q6.125 in such an instance. It is hoped that the phone call, email, U.S. mail route described above would preclude the vast majority of such errors from reaching the motion and thus the stage for any claiming of attorneys fees. The factual support for such a motion might include the documentation of the carrier’s phone calls, emails, and letter to claimant’s attorney.
At the end of the analysis, better communication is the key to avoid misunderstandings. Carriers may preclude claims by speaking with claimant's counsel. Claimants may preempt motions regarding the appropriate party by discussing assertions that this carrier or TPA believes it does not belong on the case.
